AJAY KUMAR NANDA Vs. ASHOK KUMAR PADHEE

JUDGEMENT

(1.) This appeal U/S.47 of the Guardians & Wards Act, 1890 (in short "the act") seeks to handover the custody of the child to the father-cum-appellant by removing him from the custody of maternal grandparents and uncle-cum-Respondent No.1 to 3 by setting aside the impugned order dtd. 31/8/2024 passed by learned Judge Family Court, Jharsuguda in GP No.05 of 2015 dismissing the claim of the father-appellant by continuing the lawful custody of the child with maternal grandfather- cum-R-1 till he attains majority with visitation right to the father-appellant on holidays or any other days with prior notice to grandfather, with further permission to the father-appellant to take the child out of the house of R-1 to 3 for recreation, entertainment or for shopping with concurrence of the child, in an application U/S.25 of the Act.

(2.) The brief facts involved in this case are that the appellant-Ajay Kumar Nanda @ Pintu is admittedly the husband of late Lipika Padhee, who was the daughter of R-1 and 2 and their marriage was solemnized on 5. 12.2013 and out of their wedlock, they were blessed with a child namely Rikun @ Rihan on 26/9/2014 and thereafter, the R-1 and 2 took Lipika and the newly born baby to their house at Khajurtikra, Bargarh after her discharge from the hospital (Patel Nursing Home, Burla) where the child was born. According to the appellant, he got information from R-1 over phone in the night on 29. 09.2014 about the ill health condition of Lipika and their child and both were removed directly to Jagyesini Hospital, Jharsuguda from Bargarh and on 3/10/2014, both mother and son after being discharged from Jagyesini Hospital were brought back to the house of the appellant at Buromal, Jharsuguda, but unfortunately the health condition of Lipika deteriorated and she passed away in the night of the same day on 3/10/2014 at DHH, Jharsuguda due to heart failure on account of Hypertension and Pulmonary Oedema. The death of Lipika was immediately intimated to R-1 over phone and his relatives reached at the house of the appellant and alleged against the appellant and his parents and other to have committed murder of Lipika by lodging an FIR at Jharsuguda Police Station on 4/10/2014 at about 09AM resulting in registration of Jharsuguda PS Case No.370 of 2014 corresponding to GR Case No.1380 of 2014 in which case the appellant was arrested.

(3.) On consideration of rival pleadings of the parties, the learned Judge Family Court has framed various issues inter alia the pivotal issue; whether the best interest of the child can be served in the company of the petitioner (appellant) or the OPs (R-1 to 3) ?. In the proceeding before the learned Judge, Family Court, Jharsuguda for custody of the child, both the parties had led oral and documentary evidence. Accordingly, the appellant has examined himself and another as PW.1 and 2 and proved 32 documents vide Exhibits 1 to 32 as against the oral evidence of R-1 and R-3 and documentary evidence of exhibits A to T by R-1 to 3. The OP No.4 (R-4) being the State represented by the District Magistrate and Collector, Jharsuguda has neither contested the case nor has led any evidence.