The father is entitled to custody of his son as the natural guardian, despite prior criminal charges and the child's current living situation with maternal grandparents.

JUDGMENT :

ARINDAM SINHA, J.

1. The appeal is directed against judgment dated 23^rd June, 2018 made by the family Court dismissing the father’s petition for custody of his son with direction that the father has right to see the minor with previous notice to respondents (maternal grandparents) and the child be allowed to use telephone or video conferencing with his father while living with his grandparents on interval of 15 days.

2. Ms. Jena, learned advocate appears on behalf of appellant- father. Mr. Purohit, learned advocate appears on behalf of respondents. We have heard the learned advocates. We have also perused impugned judgment and the evidence adduced in the Court below.

3. Annexed to the appeal papers is judgment dated 28^th March, 2023 made by the learned single Judge in CRLMC no.2089 of 2017 (Babu Charan Patra v. State of Orissa and another). The judgment was made on the criminal Misc. case of petitioner in connection with G.R. case no.205 of 2016 pending in the file of Sub-Divisional Judicial Magistrate, Gunupur. Petitioner thereby sought to invoke inherent power of the Court under section 482 in Code of Criminal Procedure, 1973 for quashing the case.

4. Facts as appearing from the judgment are that an FIR was registered on 12^th October, 2016, after death of the child’s mother on 3^rd August, 2016. Police case was started under, inter alia, section 304-B Indian Penal Code, 1860. Charge-sheet was submitted under sections 498-A and 306 in Indian Penal Code, 1860. Case made out by petitioner before the learned single Judge was that the death was by suicide. UD case no.12 dated 3^rd August, 2016 was registered and in course of the enquiry, involvement of petitioner was neither alleged by respondent no.1 (informant) nor suspected. After two months complaint was made, registered as FIR dated 12^th October, 2016 and the case initiated. Hence, there was prayer for quashing of it. The learned single Judge found substance in the contention and quashed the criminal case. Respondents did not take the matter further. We, therefore, have reason to believe that death of the child’s mother was by suicide.

5. Moving on we find from the written statement of respondent no.1 that contention therein was, petitioner cannot be a proper person to be custodian of the minor child as he is a Government servant with high rank and corresponding burden of work. Further, he being unmarried, is not in a position to take care of the minor child. We reproduce paragraph 5 from the written statement.

“5. The Respondent submit that, the minor child is now of 3 years old and the petitioner is being charged for murder case of his wife, he cannot be a proper person to be custodian of the minor child. Further the petitioner is Govt. servant and holding a higher rank with all the burden and obligations and he being Govt. employee moving different places in order to discharge his Govt. duties, and further he being unmarried, he is not in a position to take proper care of the minor child and as such he cannot be the proper person to be custodian of the minor child. If the petitioner will be appointed as the custodian of the minor child, than the future life of the minor child will be in darkness & danger and it cannot be undermined.”

(emphasis supplied)

6. First contention of the father carrying lot of responsibility as comes with being a Government employee is not one that is a disqualification for him to have custody. On second contention, in the record is copy of certificate of marriage certifying that petitioner had got married to Smt. Puspalata Mohalik on 4^th February, 2023. On query from Court Mr. Purohit submits, he had disclosed the marriage certificate by affidavit