Father Can't Be Denied Custody Due To His Inability To Produce 'Birth Certificate' Of Minor Child: Orissa High Court
The Orissa High Court has recently held that a father cannot be denied the custody of his minor child merely because of his failure to produce 'birth certificate' in order to prove his paternity.
While setting aside an order passed by a Family Court denying custody of a minor boy to his father, the Bench of Justice Sanjay Kumar Mishra observed –
“Keeping in view the legal provisions under the Hindu Minority and Guardianship Act, 1956, the welfare of the child, the right of the father to have his custody and after consideration of all the facts and circumstances of the case detailed above, this Court finds that the learned Court below was not justified to reject such prayer for custody of the child on technical ground for not producing and proving the death certificate of Appellant's wife as well as birth certificate of the Respondent No.2.”
The appellant and the mother of the second respondent (the child) solemnized their marriage as per Hindu customs and rites on 19.06.2019. They had a peaceful conjugal life, out of which the male child took birth. Shortly after the birth of the child, the wife of the appellant passed away due to cardiac arrest.
After the death of the lady, the first respondent (father-in-law of the appellant) kept the child in his custody and allegedly did not allow the appellant to even meet his offspring. Having no other recourse, he filed a petition before the Family Court, Bhadrak seeking custody of his child.
However, the prayers made in the petition were denied on the technical ground that the appellant, despite claiming to be the father of the minor child, failed to produce birth certificate of his son as well as the death certificate of his wife. Being aggrieved by such denial, he filed this appeal before the High Court under Section 19 of the Family Courts Act, 1984 read with Section 47 of the Guardians and Wards Act, 1890.
It was vehemently contended on behalf of the appellant that the Family Court erred in holding the paternity of the appellant as a disputed fact. The written statement submitted by the first respondent before the Court below was referred to wherein he had admitted the appellant to be the father as well as natural guardian of the minor child. Section 58 of the Evidence Act was relied upon to argue that an admitted fact need not be proved. Finding merit in such argument, the Court held –
“Hence, this Court is of the view that despite such admission made by the Respondent No.1 in his Objection/Written Statement, the learned Court below erred in law by coming to a conclusion that the present Appellant failed to prove that he is the natural father of the Respondent No-2 by producing and proving the death certificate of his wife so also the birth certificate of his son. Hence, the impugned judgment deserves interference.”
Justice Mishra stressed that after the death of his mother, as per Section 6 of the Hindu Minority and Guardianship Act, 1956, his father is the natural guardian of the child, who is currently aged about 5 and 1/2 years old. He, thus, opined –
“This Court is of further view that, if no custody is granted to the Appellant, the Court would be depriving both the child and the father of each other's love and affection to which they are entitled. As the child was in tender age at the time of death of his mother and is staying with his maternal grandfather, when he was an infant and at present he would only be around 5 & 1/2 years old, he would be unable to express his intelligent preferences. That apart, his choice cannot be ascertained at this stage.”
Accordingly, the maternal grandfather was asked to handover the custody of the minor child to his father/appellant. Nonetheless, he was allowed to meet the child at the residence of the appellant whenever he desires.
Case Title: Ramakanta Majhi v. Santan Majhi & Anr.
Case No: GUAP No. 03 of 2022
Date of Judgment: December 01, 2025
Counsel for the Appellant: Mr. P.K. Sahoo, Advocate
Counsel for the Respondents: None
Citation: 2025 LiveLaw (Ori) 161