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Dasarathi Rajguru And Another vs Chandan Mishra on 4 April, 2024

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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
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// 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.

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// 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

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// 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,

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// 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

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// 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

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