Take notes as you read a judgment using our Virtual Legal Assistant and get email alerts whenever a new judgment matches your query (Query Alert Service). Try out our Premium Member services — Free for one month.
Orissa High Court
Dasarathi Rajguru And Another vs Chandan Mishra on 4 April, 2024
Bench: Arindam Sinha, M.S. Sahoo
IN THE HIGH COURT OF ORISSA AT CUTTACK
MATA No.44 of 2023
Dasarathi Rajguru and another …. Appellants
Represented By Adv. –
Mr. T.K. Mishra, Advocate
-versus-
Chandan Mishra …. Respondent
Represented By Adv. –
Mr. S.K. Dalai, Advocate
CORAM:
THE HON’BLE MR. JUSTICE ARINDAM SINHA
AND
THE HON’BLE MR. JUSTICE M.S. SAHOO
ORDER
04.04.2024
Order No.
07. 1. Appellants are maternal grandparents and respondent, the
father. Mr. Mishra, learned advocate appears on behalf of appellants
and Mr. Dalai, learned advocate, for respondent.
2. We reproduce below text of our order dated 2nd April, 2024.
“1. Mr. Mishra, learned advocate appears on behalf of
appellants. He submits, the maternal grandfather is
Page 1 of 6
// 2 //present in Court. He hands up prescription issued on 31st
March, 2024 by Department of Health and Family
Welfare, Rayagada in respect of the boy, inter alia,
prescribing investigation by Widal test. Report also dated
31st March, 2024 is attached. It says Agglutination (+)
1:80 is considered significant. As such, the maternal
grandfather could not bring the boy with him.
2. Mr. Dalai, learned advocate appears on behalf of
respondent-father and with reference to order dated 12th
March, 2024 submits, his client is present in Court to
accept custody of the boy. On query from Court Mr.
Dalai submits, his client is scheduled to leave on 6th
April, 2024.
3. We will hear the appeal day-after-tomorrow (4th April,
2024). Parties must come ready.
4. List on 4th April, 2024, marked at 2:00 P.M. Appellant
will do well to produce the boy in Court on that day.
Respondent-father might produce the boy’s passport for
Court to ascertain that he has a valid visa to travel
Canada.”
Neither appellant no.1 (maternal grandfather) nor the boy is present in
Court. However, respondent is present.
Page 2 of 6
// 3 //
3. Mr. Dalai files affidavit of date by his client. In it is disclosed,
inter alia, copies of relevant pages from passport issued to the boy. On
requirement the original passport was handed up. Perusal thereof
reveals it was issued on 4th November, 2022 and there was one earlier
(passport no.M5363464 issued on 28th January, 2015).
4. Affixed to the passport is a sovereign document being visitor
Visa issued in favour of the boy for multiple entry into Canada, valid
till 2nd February, 2027. The passport does not bear endorsement by
Indian Immigration Authority evidencing the boy ever left India. The
passport is handed back.
5. Perused impugned judgment dated 5th December, 2022. It is
said to have been made in a proceeding under provisions in Guardians
and Wards Act, 1890 read with section 26 of Hindu Marriage Act,
1955. We find from the judgment, mother of the boy died on 3rd June,
2015 due to ailment of TB Meningitis. It emerges that the earlier
passport issued to the boy was obviously with knowledge and consent
of his mother, since deceased. There is record of intention of
respondent in impugned judgment that both he and his wife wanted
Page 3 of 6
// 4 //
their son to have education abroad. We have ascertained, there never
was marital dispute by proceeding instituted under provisions in Hindu
Marriage Act, 1955 between respondent and his wife, during her
lifetime.
6. The judgment goes on to say there was good relationship
between the parties, unaffected by death of the boy’s mother. We get
the impression that respondent agreeing for his parents-in-law to look
after his son while he pursued his prospects was not perceived as a
threat to his claim for custody nor did anyone see it that way.
Consistent stand of appellant no.1 (the maternal grandfather), stated in
impugned judgment, is that the son can go and stay with his father, if
he wants to.
7. It appears from impugned judgement parties fell out on 22nd
May, 2022. We have also perused, inter alia, paragraph 13 in evidence-
in-chief of appellant no.1 by way of affidavit. Prima facie we get
impression that when respondent went to take custody of the boy from
his parents-in-law on 22nd May, 2022, there was unpleasantness,
Page 4 of 6
// 5 //
ultimately giving rise to the civil proceeding that has come to us in
appeal.
8. The visa was issued on 20th September, 2023. That was much
after 22nd May, 2022. Respondent clarifies, his son being a minor he
obtained the visa on his behalf.
9. At this stage, not having fully heard out the appeal, we do not
doubt respective intentions of the parties as reflected in impugned
judgment. Where the maternal grandfather had not taken a stand on
behalf of the grandparents, to claim custody before the Family Court,
said Court naturally granted custody to respondent-father. We are
confronted with adjudication, which may come down to Court deciding
against wishes of the boy as recorded in the judgment. In the
circumstances, we would like to interact with the boy.
10. Appellants are directed to produce the boy on 9th April, 2024.
We make this direction being aware that respondent-father had
purchased tickets on 14th March, 2024, for the boy to travel Canada to
attend appointment for admission to a school there, the appointment
fixed on 10th April, 2024. Respondent-husband has liberty to produce
our order before the Airlines and request the ticket(s) be converted to
Page 5 of 6
// 6 //
be open. Appellants can be reassured that production of the boy as
directed will not end in Court intervening to forthwith hand over
physical custody to respondent. We shall interact with the boy and, if
necessary make our judgment. If there is to be execution, it will follow
in accordance with law but we will not precipitate anything.
11. It is made clear, in event the boy is not produced we shall
proceed to pass judgment on the appeal without benefit of having
interacted with him. Cause of the omission will be the boy not
produced before us by appellants.
12. List on 9th April, 2024, marked at 2:00 P.M.
(Arindam Sinha)
Judge
(M.S. Sahoo)
Judge
Jyoti
Signature Not Verified
Digitally Signed
Signed by: JYOTIPRAVA BHOL
Designation: Junior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA
Date: 04-Apr-2024 18:32:32
Page 6 of 6
