NILAKANTHA PATI Vs. ANANTA MISRA AND ANR

JUDGEMENT

(1.) These two appeals directed against a common order relating to custody and guardianship of a minor and disposed of by this judgment which shall govern both. The basic facts necessary for adjudication of the appeals are. that appellant Nilakanta was married to one Sailabala in the year 1981 and respondent Ananta is his father-in-law. According to Ananta, Sailabala committed suicide on 11-12-1986 and on the basis of investigation, a charge-sheet under Sections 498A, 306, 323, Indian Penal Code and under Sections 3 and 4 of the Dowry Prohibition Act has been filed against Nilakantha and the matter is pending trial in the court of Subdivisional Judicial Magistrate, Puri. After the death of Sailabala, Tapas Kumar Pati, the minor son, whose custody and guardianship are the bones of contention in these appeals, stayed with one Bhagaban Das, (respondent No. 2 in Misc. Appeal No. 14 of 1989), another son-in-law of respondent Ananta. Two applications registered as Misc. Case No. 735 of 1987 and 775 of 1987 were filed in the court of District Judge, Puri under Sections 7 and 25 of the Guardians and Wards Act, 1890 (hereinafter referred to as 'the Act'). By the first application respondent Ananta prayed for appointment as legal guardian of minor Tapas, while the other application was filed by the appellant for his custody.

(2.) The learned District Judge held that respondent No. 1 was entitled to be declared as guardian of the child. He primarily based his conclusions on the assumption that the appellant being a young man was likely to marry again and because of the pendency of the criminal case, there was likelihood of strained relationship between the parties. He further presumed that the step mother is not expected to properly look after the welfare of the child. He accordingly disposed of both the misc. case by a common order with direction that the child who was in the custody of Bhagaban Das was to be handed over to respondent Ananta. Being aggrieved by this order, the appellant has filed the appeals.

(3.) Mr. B.H. Mohanty, learned counsel appearing for the appellant, submitted that the principles necessary for adjudication of a case of this nature have not been kept in view while disposing of the matter. According to him, the order was passed without any material basis on record to substantiate the conclusions. He placed reliance on a decision of the Madras High Court reported in S. Abboy Naidu and Ors. Vs. R. Sundara Rajan, 1989 AIR(Mad) 129 in support of his contention that even in a case where suicide is committed by the mother, there is no legal bar and father is to be given the custody of the child. He submitted that the order was based on presumptions, and therefore not sustainable in law. On account of advanced age, respondent Ananta was not a proper person to be appointed as a guardian. He also submitted that the pendency of a criminal case is no ground for denial of custody.