CASE TITLE : ARANYA KUMAR SAHOO V. ARPITA SAHOO
CASE NO : CRLMP NO. 2365 of 2023
DATE OF JUDGMENT : February 01, 2024

Welfare of child is the paramount consideration in cases of grant of custody and rights of natural guardian have to yield to the best interest of the child.

The opposite party in this case is the daughter of the petitioner, who was residing in the care and custody of her maternal uncle following the death of her mother. The maternal uncle of the opposite party had filed an FIR against the petitioner and his family alleging murder of his (petitioner’s) wife.

When the opposite party claimed maintenance, the petitioner all of a sudden sought custody of the opposite party, which was rejected by the learned Judge, Family Court, Kendrapara as per the impugned order. Being aggrieved, the petitioner filed this revision petition before the High Court.

It was contended on behalf of the petitioner that he, being the natural guardian of his daughter, is entitled to have her custody as per the provision under Section 6 of the Hindu Minority and Guardianship Act, 1956 [‘HMG Act’]. However, such contention was refuted by the counsel for the opposite party who submitted that it is the ‘welfare of the child’ which is the paramount consideration in cases of grant of custody and not the rights of the parents under a statute for the time being in force.

Upon considering the submissions of both the sides, the Court at the outset examined the stipulations made under Section 6 of the HMG Act and Section 17 of the Guardians and Wards Act, 1890, which provide for natural guardian of a Hindu minor and factors for consideration before grant of custody respectively.

The Single Bench further relied upon the observations made by the Hon’ble Supreme Court in the case of Anjali Kapoor v. Rajiv Baijal, (2009) 7 SCC 322 and the Madras High Court in the case of Muthuswami Moopanar v. K. M. Chinna Muthuswami Moopanar, AIR 1935 Mad 195, wherein it was commonly held that right of parents for custody of their minor child is not absolute, rather it is subject to the welfare of the child.

Against the backdrop of the aforesaid legal position, the Court examined the facts of the case. It was found that the opposite party was only two months and twenty days old when the maternal uncle took her custody upon the death of her mother. The petitioner did not care for his minor daughter for long ten years, rather got married for the second time and begot a child from that wedlock.

“It is evident from the submissions and evidence that the Petitioner has not provided basic maintenance for the daughter since 2012 and has only applied for custody in response to a maintenance petition filed against him, potentially out of concern for having to provide regular maintenance for his own child,” the Court observed.

The Bench further took into account the interaction held by the trial Court with the minor girl (opposite party), who unequivocally expressed her desire to reside with her maternal uncle and also stated that he has been properly taking care of her needs and amenities which makes her feel safe only in his custody.

Therefore, the Court was of the considered view that the maternal uncle must retain the custody of the child as it may not be apposite at this stage for diverting the environment to which the child is used to. It further held –
“It could be detrimental to the minor’s welfare if she is left in the care of someone she does not know, even though that person is her legal guardian. She cannot be uprooted from a supportive environment that is well equipped to provide her growth just to give effect to the father’s legal claim to natural guardianship. Given the circumstances, the child will remain in the care of her maternal uncle.”

CASE TITLE : SUDAM PATTANAIK V. STATE OF ORISSA
CASE NO : CRLA NO. 293 of 2009
DATE OF JUDGMENT : April 09, 2024

Proof of ‘demand’ and ‘acceptance’ of bribe is a sine qua non for recording conviction under Section 7 and Section 13(2) r/w Section 13(d) of the Prevention of Corruption Act.

The complainant was working as a male health worker at CHC, Tentulikhunti in the district of Nabarangapur, who retired from service on 31.07.2006. Prior to his retirement, he had submitted all the requisite documents for drawing provisional as well as regular pensions. However, the clerk of the CHC (the appellant in the instant case), who was dealing with the pension papers, demanded a bribe amount to the tune of Rs. 3000/-.

As the complainant was not willing to pay the amount, he lodged a written report before the Superintendent of Police, Vigilance, Koraput Division, Jeypore. Accordingly, a trap was laid wherein the complainant acted as the decoy and another witness was sent with the complainant to overhear the conversations.

As per the prosecution version, when the complainant reached at the office of the appellant, the latter asked the former as to whether he has brought the bribe money. Getting the answer in affirmative, the appellant asked the complainant-decoy to keep the cash in the drawer of his table. Subsequently, the trap team arrived and recovered the GC notes and the fingers of right hand of the appellant were put in a sodium carbonate solution which turned pink.

Investigation was carried out and charge-sheet was submitted against the appellant after obtaining sanction order. After examining the versions of witnesses and other evidence on record, the trial Court found the appellant guilty under Section 7 and Section 13(2) read with Section 13(d) of the Prevention of Corruption Act, 1988. Impugning the trial Court order, this appeal was filed before the High Court.

To decide the appeal, the Court went through the aforesaid provisions and ingredients thereof as well as relevant judicial precedents including the judgment of the Hon’ble Apex Court in Neeraj Dutta v. State (Govt. of NCT of Delhi), (2023) 4 SCC 731 wherein it was observed that to bring home the above-stated charges, demand and acceptance of bribe is a sine qua non.
But perusal of the evidence on record canvassed certain fatal contradictions in the prosecution evidence. It was also found that the versions of witnesses recorded under Section 164, Cr.P.C. contradicted with their testimonies given in Court. The extent of inconsistencies was of such magnitude that the Deputy Superintendent of Police, who accompanied the trap team, deposed that the tainted notes were recovered from the hands of the complainant, whereas some other prosecution witnesses stated that the same were recovered from the table drawer of the appellant.

The Court was of the view that the appellant unintentionally and unknowingly coming in contact with the tainted notes, while extracting some documents from the same drawer, cannot be ruled out. Furthermore, it found credence in the defence plea that the pension papers were already forwarded to the CDMO for necessary action and since the appellant did not have the papers on the alleged date of demand of bribe or trap, it is probable that he had never demanded such bribe at all.
Therefore, taking into account the factual scenario vis-à-vis the legal position, the Court deemed it proper to extend benefit of doubt to the appellant and accordingly, held as follows:

“On a perspicacious analysis of the evidence on record and the settled principles of law in the decisions referred to above, the ingredients of offence under Section 7 of the P.C. Act are not found established. Consequently, the offence under Section 13(1)(d) will not be attracted. Hence, it is irresistible to hold that the prosecution has not been able to prove the charges against the Appellant beyond all reasonable doubt and the Appellant as such is entitled to an acquittal.”