PRASANNA KUMAR SAHU Vs. DIPTI SAHU

JUDGEMENT

(1.) The appellant is the father of the minor respondent and has filed this appeal against the judgment and order dated 30th November 2004 passed by the learned Ad hoc Addl. District and Sessions Judge Fast Track Court, Baripada appointing Shri Biranchi Narayan Behera, the maternal grandfather of minor-respondent as guardian of the minor.

(2.) The appellant had married Kanaklata, daughter of the aforesaid Biranchi Narayan Behera in July, 1998. On 15-6-1999 the minor-child was born and after giving birth to the minor-child, her mother Kanakalata died on 16-6-1999. After death of Kanakalata, her father Biranchi Narayan Behera took the minor-child to his house and since then she has been residing with her maternal grandfather. After death of Kanakalata, the appellant married for the second time and never visited the house of Biranchi Narayan Behera to see his child and accordingly the aforesaid Biranchi Narayan Behera filed an application under Section 7 read with Section 10 of the Guardians and Wards Act, 1890 for being appointed as guardian of the minor girl Dipti Sahu. The aforesaid application was resisted by the appellant on the ground that he is the natural guardian of the minor child and that the child has been unauthorizedly confined in the house of her maternal grandfather and in spite of several efforts made, the custody of the minor-girl has not been given to him. It was also contended that the maternal grandfather is aged about 70 years and he has also taken a second wife and not being in a position to maintain the minor-girl, custody of the child should not be given to the maternal grandfather. The trial Court on analysis of the evidence turned down the player made on behalf of the appellant and directed that Biranchi Narayan Behera who is the maternal grandfather of the minor-girl to be her guardian.

(3.) Dr. S Dash, the learned counsel appearing on behalf of the appellant challenges the impugned order basically on two grounds. The first ground taken by the learned counsel appearing for the appellant is that the father being the natural guardian, custody of the minor-girl should have been given to him. In this connection, she has referred to Section 19(b) of the Act and has also relied upon some decisions. The second ground of challenge is that the maternal grandfather who has been appointed as the guardian is 72 years old and being a retired employee is not in a position to maintain the child as a result of which an application under Section 125 Cr.P.C. was filed on behalf of the minor child for maintenance. Apart from the above, it was contended that merely on the basis of the statement of the child, the Court should not have appointed her maternal grandfather as guardian.