(2012) 251 KLR 537 IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT: THE HONOURABLE MR.JUSTICE K.M.JOSEPH & THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 12TH DAY OF APRIL 2012/23RD CHAITHRA 1934 OP (FC).No. 1241 of 2012 (R) ---------------------------- M.P.950/11 IN M.P.834/11 IN MC.135/2011 of FAMILY COURT,ERNAKULAM PETITIONER(S)/PETITIONER/RESPONDENT IN MC:: ------------------------------------------ C.C.ALEXANDER,, AGED 51 YEARS S/O CHACKO, PALAKKATHADATHIL HOUSE NEAR ST. THOMAS CHURCH, ARONOOTTIMANGALAM P.O. KADUTHURUTHY, KOTTAYAM DISTRICT. BY ADVS.SRI.M.K.DAMODARAN (SR.) SRI.ALAN PAPALI SRI.A.KRISHNAN SRI.GILBERT GEORGE CORREYA SMT.O.V.BINDU SRI.NISHIL.P.S. SRI.J.VIMAL RESPONDENTS/RESPONDENTSIN M.C.:: ---------------------------------------------- 1. JACOB ANTONY PALAKKATHADATHI @ AMITH, S/O. C.C. ALEXANDER (MINOR) REPRESENTED BY HIS MOTHER AND NATURAL GUARDIAN C.K. OMANAKKUNJAMMA @ ANGEL ROSE D/O. LATE VIJAYAPPA PANICKER, SOWPARNIKA KRPS 182 A, RAPHEL MASTER LANE, PIONEER JUNCTION KANNADIKKADAVU, MARADU, KOCHI.682304. 2. JACOB SEBASTIAN PALAKKATHADATHIL @ AMAR, S/O. C.C. ALEXANDER (MINOR) REPRESENTED BY HIS MOTHER AND NATURAL GUARDIAN C.K. OMANAKKUNJAMMA @ ANGEL ROSE D/O. LATE VIJAYAPPA PANICKER, SOWPARNIKA KRPS 182 A, RAPHEL MASTER LANE, PIONEER JUNCTION KANNADIKKADAVU, MARADU, KOCHI.682304. THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 12-04-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS:
RESPONDENTS' EXHIBITS: NIL // TRUE COPY // C.R. K.M. JOSEPH & M.L.JOSEPH FRANCIS JJ., - - - - - - - - - - - - - - - - - - - - - - - - - - - - O.P.(F.C.) No.1241 of 2012 R - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 12th day of April, 2012 Head Note:- Family Courts Act, 1984 - Section 7(1) Explanation (f) - Code of Criminal Procedure, 1973 - Section 125 - Maintenance - There is no petition filed for declaration of legitimacy or illegitimacy - Petitioner submit that the Court would have to give a declaration of illegitimacy indirectly, which is impermissible - Held, Family Court have the power to decide the question of paternity incidentally. J U D G M E N T K.M. Joseph J., The petitioner is the respondent in M.C. No.135 of 2011, which was filed before the Family Court, Ernakulam by two children, who are twins represented by their mother. They filed the petition invoking Section 125 of Code of Criminal Procedure and Section 7(1) Explanation (f) of the Family Courts Act, 1984 (hereinafter referred to as 'the Act'). The prayer is one for maintenance. 2. Briefly put the case of the respondents before the Family Court is as follows. The petitioner herein was a business associate of the earlier husband of mother of the respondents. The petitioner prevailed upon the respondents' mother by making her believe that there is no valid marriage between her and her husband and he may desert the respondents' mother etc. Thereafter the petitioner showed deep affection and love towards the respondents' mother and started caring for the respondents' mother very much and looking after her affairs very keenly. Believing the petitioner's words, it is stated, that the petitioner is a bachelor and millionaire with lucrative business having branches in foreign countries, the petitioner and the mother of the respondents were living as husband and wife without the knowledge of the husband of the respondents' mother. Thus, the two twin children were born. There is a refusal by the petitioner to meet the requirements and expenses of the respondents since October 2010 despite demand. The maintenance claimed by the respondents is at the rate of Rs.25,000/- each per month. 3. Ext.P2 is the counter affidavit filed by the petitioner. He denied the allegations. Ext.P3 is the petition filed by the respondents with a prayer to refer the petitioner for D.N.A. test to ascertain whether the petitioner is the biological father of the respondents/children. It appears that no counter affidavit is filed against it and the Family Court, by Ext.P6, which is impugned before us, ordered as follows: "Heard both sides. Petition is filed for sending the petitioner/husband and the minor children whose names mentioned herein, for DNA test to prove that whether the petitioner himself is the biological father of the said children. No objection is seen filed. But it is argued that same petition has been filed in a declamatory suit before the Sub Court, Ernakulam and it is pending under consideration. Except that, no other serious objection is received by the respondent/ petitioner in O.P. Considering the reason that the paternity of the children in question, I feel that the petition need be allowed in the ends of justice. I do so. Hence, this M.P. stands allowed. Take further steps to conduct the D.N.A. test in Rajeev Gandhi Institute of Science and Technology. Remit the fee within two weeks. The petitioner/mother will produce the children for the purpose, as and when required. Call on 3.2.2012" 4. We heard learned counsel for the petitioner. 5. Learned counsel for the petitioner would impugn the order on the ground that the M.C. itself is not maintainable before the Family Court. According to him, on the very allegations found in the petition filed by the respondents, they are the children born to the petitioner out of illegitimate relationship during the marriage between the respondents' mother and another. Therefore, according to him, the petition itself is not maintainable before the Family Court. Learned counsel for the petitioner would refer us to the judgment of the Apex Court reported in Renubala Moharana and another v. Mina Mohanty and others (2004(4) SCC 215) and also judgment rendered by the Division Bench of this Court reported in Bharat Kumar v. Selma Mini and another (2007(1) ILR 696). 6. As far as the judgment of the Apex Court reported in Renubala Moharana v. Mina Mohanty is concerned, that was a case where the petitioner/appellant before the Apex Court had sought the following reliefs: "(a) To declare that late Samuel Maharana, nicknamed as "Gulu" is the father of the minor child "Pupun" alias "Pallav Pratik Maharana" and not Kanhu Ch. Pattnaik, 2nd respondent and the birth certificate obtained obtained by the 1st respondent is not valid as the same is based on false information. Only the DNA fingerprint will prove the truth of 1st respondent. (b) To appoint the petitioners as guardians of the person of the said minor child. (c) To direct the respondents to deliver the custody of the child to the petitioners within such period as deemed fit by the Court." 7. The facts of the said case have been set out as hereunder: "According to the petitioners, their son, named Samuel Maharana developed intimacy with the first respondent Mina Mohanty and both of them lived together in the departmental quarters allotted to Samuel Maharana. On account of their cohabitation, a male child was born to them on 25.1.1991 Samuel Maharana and the first respondent named the child as Pallav Pratik Maharana alias Pupun. However, the first respondent got the birth certificate issued by the hospital showing the child's name as Partha Sarathi Pattnaik and Kanhu Charan Pattnaik as his father. It is alleged that the first respondent Mina Mohanty, though married to the second respondent Kanhu Charan Pattnaik, they were living separately from 1987. Samuel Maharana died on 7.11.1994 "under mysterious circumstances". After the death of Samuel, the second respondent executed a document accepting that Pupun was born through Samuel and disclaiming his parentage. After some time, the custody of the child was entrusted to the appellants and 1st respondent was frequently visiting the house of the appellants to see the child. On one such occasion i.e., 1.4.1995, the first respondent sent one of her relations to bring the child to her place with a promise to send him back on the next day. From then onwards, the child was kept out of the reach of the appellants. A notice was sent by registered on 22.9.1995 to send back the child. However, it was returned undelivered. Hence the petition was filed as aforesaid in the Family Court." The Family Court found that the petition is not maintainable in the light of Section 7 of the Act. It was further found that since the first respondent is the natural mother, against whom there was no adverse allegation, there was no need to appoint any other person as guardian. The High Court agreed in respect of the findings of the Family Court that the petition is not maintainable. But the High Court reversed the order insofar as the petition related to the custody of the child. It was found that the prayer for guardianship and custody is entertainable by the Family Court under Explanation (g) to Section 7(1) of the Act. The Apex Court held as follows: "The view taken by the High Court as regards the first prayer has been assailed before us. Under Section 7 (1) read with clause (e) of the Explanation, a suit or proceeding for a declaration "as to legitimacy of any person" is within the jurisdiction of the Family Court. According to the appellants, the child was born on account of extramarital relationship of 1st respondent with their son, the late Samuel Maharana. Accepting the case of the appellants, the child cannot obviously be treated as a legitimate child of Samuel and Mina Mohanty (R1). The questions of status of the child in relation to the parties to the petition can be incidentally gone into by the Family Court if necessary while deciding the guardianship petition. That liberty has been granted to the Family Court. However, as rightly held by the Family Court and the High Court, the declaratory reliefs as regards the illegitimacy of the child cannot be granted. In effect that is what the appellants want under prayer (a)" 8. In the case before us, there is no prayer for declaration, as was sought for in the case before the Apex Court. It is pertinent to note that the Apex Court itself held that the question of the status of the child in relation to the parties can be incidentally gone into by the Family Court, while deciding the guardianship petition. The decision is that the declaratory relief, as regards the illegitimacy of the child, cannot be granted. It is further noted that was the relief which the appellants prayed for under prayer (a). 9. As far as the judgment of the Division Bench of this Court (Bharat Kumar v. Selma Mini and another) is concerned, the first respondent before the Family Court was the petitioner before the High Court. The relief claimed before the Family Court was follows: "Therefore, it is humbly prayed that this Court be pleased to declare that Bharat Kumar K. Palicha (the 1st respondent) is the father of Bhagat Kumar B., aged 3 years (2nd petitioner) delivered by Selma Mini (1st petitioner) on 9th day of August 2002 at Lakshmi Hospital, Diwans Road, Ernakulam". The facts of the case in Bharat Kumar v. Selma Mini and another, was as follows: The second respondent was the husband of the first respondent at the relevant time. According to the first respondent she had developed extramarital relationship with the petitioner and the child Bhagat Kumar was born in that relationship. Hence the petition was for declaration that the petitioner was the father of the said child. The contention of the petitioner was that such a petition for deciding the paternity of a person is not maintainable before the Family Court, without a matrimonial cause. 10. The Division Bench proceeded to extract Section 7 and held that the Court was concerned with Clause (e) to the Explanation of Section 7(1) of the Act, which relates to declaration to the legitimacy of any person. Thereafter the Court held as follows: "The jurisdiction conferred on the Family Court is settlement of issues arising out of matrimonial causes. Matrimonial cause is a cause relating to rights of marriage between husband and wife. Paternity and legitimacy are two different concepts. Paternity by itself may not, in all circumstances, be a matrimonial cause, as in the instant case. Paternity is the state or fact of being the father of a particular child. Legitimacy of a child is its right to be officially accepted as such. Admittedly the petitioner is not the husband of the first respondent. According to the 1st respondent she had only extramarital relationship with the petitioner. The second respondent herein is the husband. He did not have a case regarding legitimacy of the child. The Family Court gets jurisdiction to go into the question of legitimacy of the child's The Family Court gets jurisdiction to go into the question of legitimacy of any person only if such a question arises in a matrimonial cause. An investigation on the paternity of a person is required only when the question of legitimacy of the person is to be decided by the Family Court. That question arises only out of a matrimonial cause where there is a claim on matrimonial relationship out of which the said person is born. It may also arise in situations covered by explanation (g) to Section 7(1), in the case of guardianship, as held by the Supreme Court in Renubala Moharana and another v. Mina Mohanty. It was also held by the Supreme Court in the said decision that the Family Court cannot entertain any proceedings for declaration as to the legitimacy of any person without any claim on marital relationship. In the case before us the petitioner before the Family Court, the first respondent herein, does not have a case of marital relationship with the petitioner herein. The case admittedly is of extramarital relationship. The dispute is with regard to the paternity of a child born in the said extramarital relationship. That is not a matter falling within the jurisdiction of the Family Court. Paternity of a child can be gone into as incidental to a dispute on the legitimacy arising only out of a claim on marital relationship between the parties. Such a question also may incidentally arise in deciding a guardianship petition. No such situation arises in this case." Then, on the said basis the Court proceeded to allow the Writ Petition and struck off the O.P. from the file of Family Court. 11. Learned counsel for the petitioner placed considerable emphasis on the opening words of para 4, which we have extracted above and emphasised. He would emphasise that there must be a matrimonial relationship, without which the jurisdiction under Section 7 of the Family Court Act cannot be exercised. He would submit that it may be true that a question of paternity can be gone into in a proceeding for guardianship as was held by the Apex Court. In this case, he would submit that the Court would have to give a declaration of illegitimacy indirectly, which is impermissible. 12. We are afraid that there is no merit in the contention of the petitioner. Section 7 of the Family Courts Act reads as follows: "7. Jurisdiction: (1) Subject to the other provisions of this Act, A Family Court shall.- (a) have and exercise all the jurisdiction exercisable by any district court or any subordinate civil court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation: and (b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a district court or, as the case may be, such subordinate civil court for the area to which the jurisdiction of the Family Court extends. Explanation: The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely,- (a) suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage. (b) a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person. c) a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them. (d) a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship. (e) a suit or proceeding for a declaration as to the legitimacy of any person (f) a suit or proceeding for maintenance (g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor. (2) Subject to the other provisions of this Act, a Family Court shall also have and exercise.- (a) the jurisdiction exercisable by a Magistrate of the first class under Chapter IX (relating to order of maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973(2 of 1974) and (b) such other jurisdiction as may be conferred on it by any other enactment." 13. We are, in this case, concerned with a petition filed under Section 125 of the Code of Criminal Procedure read with Section 7(f). A perusal of the Section 7 of the Act leaves us in no doubt that it is the Family Court which has to exercise jurisdiction under chapter IX relating to the order for maintenance of wife, children and parents. The jurisdiction which has to be exercised by the Magistrate of the First Class cannot be exercised by a Civil Court. Therefore, the only court which can decide a case under Section 125 of the Code of Criminal Procedure is the Family Court at any place where the Family Court functions. Therefore in this case, it is the Family Court which alone can decide the claim for maintenance. As we have noticed the prayer in the petition filed by the respondents under Section 125 of the Code of Criminal Procedure, is only one for maintenance and that there is no petition filed for declaration of legitimacy or illegitimacy. 14. The only Court, which has the power to entertain the application as filed is the Family Court. We may also note that in the decision of the Division Bench of this Court referred above, it is true, that the Court has made observations which we have emphasised. The Court also after referring to the Apex Court judgment held that the paternity of a child can be gone into as incidental to a dispute on the legitimacy arising only out of a claim on marital relationship between the parties. But the court also held that such a question also may incidentally arise in deciding a guardianship petition. It is true that as held by the Apex Court, a petition cannot be maintained before the Family Court in a case where allegation is one that there is an illegitimate relationship. But when there is a petition for guardianship or there is a case for maintenance under Section 125 of Code of Civil Procedure or under Section 7 of the Family Court Act, the Family Court would indeed have the power to entertain such applications. It would also have the power to incidentally decide the question of paternity. Paternity and legitimacy are distinct concepts, as held by the Division Bench. We may notice that Section 125 of the Code of Criminal Procedure entitles an illegitimate minor child also to seek maintenance. The emphasis is on paternity and not on legitimacy, in a proceeding under Section 125 brought by an illegitimate child. Since the claim is for maintenance alone and the Family Court, no doubt, has the power to decide the issue as to paternity, and the present order of the Family Court is only by way of assisting it to decide the question relating to paternity, we are of the view that there is no merit in the contention of the petitioner. 15. We would think that the observations which were made by the Division Bench essentially flew from the facts of the case which related to declaration of illegitimacy. In such circumstances, we think that it is not necessary for us to refer the matter to Full Bench, particularly in the light of the judgment of the Apex Court. In such circumstances, we see there is no merit in the Original Petition and accordingly it is dismissed. Sd/- K.M. JOSEPH, (JUDGE) Sd/- M. L. JOSEPH FRANCIS, (JUDGE) dl/ |
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O.P. (FC) No. 1241 of 2012 - C.C. Alexander Vs. Jacob Antony Palakkathadathi @ Amith, 2012 (3) KLT 36 : 2012 (2) KHC 847posted May 21, 2012, 9:02 AM by Law Kerala [ updated Jul 4, 2012, 10:43 AM ] |
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