JUDGMENT

The judgment dated 11.05.2018 passed by the learned Judge, Family Court, Bhubaneswar in C.P. No.734 of 2017 has been assailed in this appeal.

2. The petitioner-respondent filed an application nomenclature as one under Sections 8 and 25 of the Hindu Minority and Guardianship; Act read with Section 7 of the Family Courts Act for custody of her minor son, namely, Aditya Sahoo. It is stated that the petitioner-respondent had married the appellant-opposite party on 13.07.2016 at Bhubaneswar and thereafter they led their conjugal life. On 12.06.2017 they were blessed with a son namely, Aditya Sahoo. It is alleged that a few months after their marriage, the appellant-opposite party and his family members meted out torture at the respondent-petitioner. It is further alleged that they used filthy languages against her and also physically assaulted her for coercing her to fulfil their further demand of dowry. It is also the case that her father had given cash of Rs.90,000/- with house hold articles and ornaments worth of Rs.10,00,000/- at the time of marriage. It is stated that when the respondent-opposite party denied to tell more to her parents who were not in a position to meet further demand of dowry, she was tortured. After birth of the son, the appellant-petitioner and his mother kept the newly born child away from the respondent-petitioner when the child was in absolute need of breast feeding from his mother and the respondent-petitioner was never allowed to keep her son with her.

When the matter stood thus, on 19.10.2017 the appellant- opposite party and the member of his family drove out the respondent-petitioner from their house keeping away the minor son with them. Immediately thereafter, the petitioner being the guardian of her minor son namely Aditya Sahoo, both of person and property, filed an application before the Family Court, Bhubaneswar for return of the custody of her son and accordingly prayed to direct the appellant-opposite party hand over the custody of the male child, Aditya to her.

3. The appellant-opposite party (husband), denies the allegation made by the respondent-petitioner (wife) against him and his family members. It is his case that the respondent-petitioner herself on her own will and volition has purposely deserted the appellant-opposite party and their minor son on 19.07.2017. It is further stated that since the time of birth, she has been neglecting the minor son. She took no care for the breast feeding and in respect of the matter relating to health, well being of said minor male child. It is stated that the mother, elder sister, elder sister-in-law and the appellant-opposite party have been taking all the required care for the male child, Aditya, who is now living happily with them and therefore, there is no need to hand over the custody of the child to the respondent-petitioner.

4. On the above rival pleadings, the Court below appears to have rightly formulated two points for determination. Upon examination of the evidence on record, on the first point it has held that it would be ideal to give custody of the male child namely, Aditya to the respondent-petitioner and in so far as the next point with regard to the maintainability of the proceeding, finding has been returned in favour of the respondent-petitioner.

5. Learned Counsel for the appellant submits that here the Family Court, Bhubaneswar had no jurisdiction to entertain the application for custody of the minor male child as has been sought for by the respondent-petitioner in view of the label of the petition. Taking this Court through the provisions of Guardians and Wards Act and Section 7 of the Family Courts Act, it is his submission that the Family Court, Bhubaneswar lacks the jurisdiction in the matter since the very application for custody of the minor has to be filed and entertainable by the Court having the jurisdiction over the area where the minor ordinarily resides. He has relied upon the case of Konduparthi Venkatesdwa