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2024 Supreme(Ori) 57
IN THE HIGH COURT OF ORISSA
Arindam Sinha, M.S. Sahoo, JJ.
Manorama Pati - Appellant
Versus
Suvendu Kar & Ors. - Respondents
MATA No. 196 of 2023
Decided On : 16-01-2024
Mr. Bamadev Baral, Advocate, for the Appellant; Mr. B. N. Mohapatra, Advocate, for the Respondent.
IMPORTANT POINT
In custody disputes, the child's welfare and expressed wishes are paramount considerations, and stability in the child's current living environment is crucial.
Headnote:
CUSTODY - MINOR CHILD - The court upheld the family court's decision to deny custody to the maternal grandmother, emphasizing the child's welfare and her expressed wishes. The court interpreted the child's comfort and stability in her current environment as paramount, despite the grandmother's concerns regarding the circumstances of the mother's death.
Fact of the Case:
The maternal grandmother sought custody of her 9-year-old granddaughter after the child's mother died under suspicious circumstances. The family court dismissed her application, citing the child's happiness and stability with her father and paternal grandparents.
Finding of the Court:
The court found that the family court did not err in prioritizing the child's expressed wishes and current living situation over the grandmother's claims. The child's comfort and stability were deemed more important than the grandmother's concerns about the father's household.
Issues: Whether the maternal grandmother should be granted custody of the child despite the child's expressed wishes to remain with her father and paternal grandparents.
Ratio Decidendi: The court emphasized that the welfare of the child is the primary consideration in custody disputes. The child's expressed desire to stay with her father and paternal grandparents, along with her current happiness, outweighed the grandmother's claims.
Final Decision: The appeal was dismissed, and the family court's decision to deny custody to the maternal grandmother was upheld.
JUDGMENT
Arindam Sinha, J.
Mr. Baral, learned advocate appears on behalf of appellant, who is maternal grandmother of the child. He submits, his client is aggrieved by judgment dated 25th April, 2023 made by the family Court dismissing the civil proceeding, wherein his client had claimed custody of the minor child, presently almost 9 years old. Daughter of his client died in suspicious circumstances. Criminal case is pending. In the circumstances, his client had well founded reasons to have applied for custody. All his client wants is welfare of the child as may not be looked into if she remains with her father and paternal grandparents in the house, where her mother met with her death. The family Court erred in only relying upon wishes of the child to make impugned judgment.
2. He relies on oral order dated 3rd November, 2017 made by a Division Bench of the Gujarat High Court in C/FA/982/2017 (Alkaben Shaileshbhai Kubavat v. Seemaben Alias Shitalben Hiteshbhai Kubavat) to submit, at least visitation should be directed. His client is prepared to meet her granddaughter in the nearby Child Welfare Centre.
3. Mr. Mohapatra, learned advocate appears on behalf of respondents, who are the father and paternal grandparents.
4. It appears from impugned judgment, the father had pleaded that his wife committed suicide at home, when he was not there. The child is happy in her environment and she has been admitted in a reputed school. It is to her welfare that she not be disturbed.
5. Mr. Baral produces, inter alia, the post-mortem report. We have perused it. There is observation regarding ligature marks on the neck. On query from Court we are told death was by hanging. Also said in the report was preservation of viscera and reserving opinion. On further query from Court parties are unable to produce opinion given on the post-mortem. It is admitted position that a criminal case is pending in connection with the death.
6. Mr. Baral also relies on judgment of the Supreme Court in Nil Ratan Kundu v. Abhijit Kundu, reported in (2008) 9 SCC, paragraph 72. Facts in that case were similar. The mother had died. The difference is, in that case the father had sought custody, confirmed by the High Court. The child was residing with his maternal grandparents. Among other things the child was interviewed by the learned judges. We reproduce below paragraph 72.
"72. We have called Antariksh in our chamber. To us, he appeared to be quite intelligent. When we asked him whether he wanted to go to his father and to stay with him, he unequivocally refused to go with him or to stay with him. He also stated that he was very happy with his, maternal grandparents and would like to continue to stay with them. We are, therefore, of the considered view that it would not be proper on the facts and in the circumstances to give custody of Antariksh to his father, the respondent herein."
We also reproduce below paragraph 8 from impugned judgment.
"08. I have examined the child Dibyanshi Kar who couldn't recognize the petitioner. Being asked by me she has also expressed that she does not want to live with the petitioner as she has never resided with her. She further states that she does not know her.
Considering the wish of the child and her comfort with respondent no.1, 2 and 3, this court feels that welfare of respondent no.4 doesn't lean in favour of the petitioner. Hence, it is ordered:
ORDERThe Civil Proceeding is dismissed on contest, but without any cost."
7. The family Court in considering wishes of the child for deciding the claim for custody by appellant cannot be said to have failed to appreciate the facts and circumstances or committed error. In Alkaben (supra) there was presentation of alternative claims, of custody or visitation right. The paternal grandparents had claimed consequent to demise of the father and the child in custody of the widow. It appears from the order, learned counsel for the widow was not totally opposed to limited visitation. In the circumstances,
