Orissa HC restores legal guardianship of minor son to natural father ‘to ensure welfare of child after mother’s death’

Setting aside the order of a Family Court, the Orissa High Court has handed over the legal custody and guardianship of a minor child to his father after the death of his wife while observing that “this Court is of further view that, if no custody is granted, the Court would be depriving both the child and the father of each other’s love and affection to which they are entitled”.

The marriage of the couple was solemnised on 19 June 2019 according to Hindu rites and customs, and both of them were living as husband and wife peacefully. However, the guardianship dispute of the child arose after the death of the child’s mother. Later, the maternal grandfather took custody of the child. The appellant’s petition was later rejected by the Family Court, Bhadrak, on 12 July, 2022 under Section 19 of the Family Courts Act, 1984, read with Section 47 of the Guardians & Wards Act.

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The Family Court rejected the prayer of the appellant for guardianship solely on the ground that the petitioner, though he claimed himself to be the natural father of the child, failed to produce the birth certificate of the minor child and also the death certificate of his wife.

”Keeping in view the legal provisions under the Hindu Minority and Guardianship Act, 1956, the welfare of the child, the right of the father to have his custody and after consideration of all the facts and circumstances of the case, this Court finds that the Family Court was not justified to reject such prayer for custody of the child on technical ground for not producing and proving the death certificate of appellant’s wife as well as birth certificate of the child,” the Single Bench Judge Justice Sanjay Kumar Mishra ruled.

There is no allegation of any matrimonial dispute when the mother of the child was alive, nor a complaint of abuse was perpetrated against the wife or son. Nothing is standing against his legal rights; as a natural guardian, and legitimate desire to have the custody of his child, Justice Mishra ruled in the judgment.

This Court is of the further view that, if no custody is granted to the Appellant, the Court would be depriving both the child and the father of each other’s love and affection to which they are entitled.

This Court finds that, apart from the Appellant being the natural guardian, even to ensure the welfare of the minor child, more particularly, after the death of his mother, should live with his natural father. This Court is hopeful that, since the minor child is of tender age, he will get adapted to his natural father very well in a short period, if his custody is handed over to the Appellant-father, Justice Mishra ordered while quashing the Family Court ruling.