George v. George (Mat.Appeal No. 309 of 2013)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE MRS. JUSTICE SOPHY THOMAS** **FRIDAY, THE 17[TH] DAY OF DECEMBER 2021 / 26TH AGRAHAYANA, 1943 MAT.APPEAL NO. 309 OF 2013** **AGAINST THE DECREE AND JUDGMENT IN OP 1014/2011 OF FAMILY** **COURT, THALASSERY** ## **APPELLANT/RESPONDENT:** **GEORGE, S/O.JOHN, MATTAHIL HOUSE, VATTIAMTHODU P O, VAYATHOOR VILLAGE, TALIPARAMBA TALUK, KANNUR DIST** **BY ADVS. SRI.THOMSTINE K.AUGUSTINE SRI.BIJU GEORGE VADASSERY** ## **RESPONDENT/PETITIONER:** **GEORGE, AGED 14 YEARS (MINOR) S/O.ANNAMMA, VANCHIPPARA HOUSE, MATTARA P O, VAYATHOOR VILLAGE, TALIPARAMBA TALUK, KANNUR DIST-670703, REP BY MOTHER AND GUARDIAN ANNAMMA, D/O.JOSEPH, AGED 46 YEARS, VANCHIPPARA HOUSE, MATTARA P O, VAYATHOOR VILLAGE, TALIPARAMBA TLAUK, KANNUR DIST,-670703** **BY ADV SRI.C.KHALID SRI. PHIJO PRADEESH PHILIP** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 17.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MAT.APPEAL NO. 309 OF 2013** 2 ## **J U D G M E N T** **A.MUHAMED MUSTAQUE, J.** The short question that arises in this appeal is whether the Family Court has got jurisdiction to entertain a petition to declare the legitimacy of a person, de hors the marriage. 2. The Family Court in this case, has upheld the claim of the respondent that he is the biological son of the appellant and granted the declaratory relief. Challenging this, the appellant has come up before us. 3. Admitted facts are as follows:-The respondent at the time of filing the petition was a minor. He was represented by his Mother, Annamma, before the Family Court. Annamma admittedly married to one George Vellipana. That marriage was subsisting at the time of the birth of the respondent, allegedly in the extramarital relationship with the appellant. Respondent's **MAT.APPEAL NO. 309 OF 2013** 3 mother has no claim that she had married the appellant. On the other hand, the pleadings clearly would show that the respondent child was begotten in an extra-marital relationship. Therefore, the point to be considered is whether legitimacy of a person can be declared by the Family Court when there was no valid marriage between the parties. 4. Section 7 (1) (e) of the Family Court Act, 1984, reads thus: “a suit or proceeding for a declaration as to the legitimacy of any person;” 5. To understand the scope of Section 7(1) (e), we have to understand the text of the Family Court Act. The preamble of the Family Court Act reads thus: “An Act to provide for the establishment of Family Courts with a view to promote conciliation in, and secure speedy settlement of disputes relating to marriage and family affairs and for matters connected therewith.” 6. The preamble is the key to read the statutory provisions. The textual interpretation of a statutory provision is a well known rule of interpretation **MAT.APPEAL NO. 309 OF 2013** 4 accepted in our system of law. (See the judgments in **Mc Dowell & Company Limited v. The Commercial Tax Officer** [1985 (3) SCC 230, **Novartis Ag v. Union Of India & Ors.** [2013 (6) SCC 1, **Aliyamma Thomas v. The District Collector** [2020 (5) KLT 662] ) 7. The textual interpretation of the statute, if ignored, may result in disastrous consequences. Therefore any statutory provision has to be understood in the background of aim and objectives of the legislation. The aim and objectives of the legislation as seen from the preamble itself, is to resolve the disputes relating to marriage and family affairs. 8. If there was no marriage between the parties or if there is no claim for any valid marriage, no dispute relating to the legitimacy of a person born out of that extra-marital relationship can be raised before the Family Court. A co-ordinate bench of this Court in **Bharat Kumar v. Selma Mini** [2007 (1) KLT 945] has taken **MAT.APPEAL NO. 309 OF 2013** 5 the similar view. It is appropriate to refer to para 4 ## of the judgment: 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 1[st] respondent, she had only extra marital 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 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 S.7(1), in the case of guardianship, as held by the Supreme Court in, Renubala Moharana v. Mina Mohantry [(2004) 4 SCC 215=(2004 (2) KLT SN 38 (SC)]. 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 **MAT.APPEAL NO. 309 OF 2013** 6 herein. The case admittedly is of extra marital relationship. The dispute is with regard to the paternity of a child born in the said extra marital 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. 9. The binding judgment as above clearly lays down the proposition of law with regard to the jurisdiction of the Family Court to entertain a petition to declare the legitimacy of a person born out of extramarital relationship. We, therefore, have no hesitation to hold that Family Court has no jurisdiction to entertain a petition for declaring the legitimacy without there being any claim that such child was born in a legally recognized marriage. 10. It is noted that parallel proceedings have been initiated by the respondent before the Munsiff Court, Thaliparamba in O.S.No.454 of 2009. Civil Court has granted a decree holding that the appellant is the **MAT.APPEAL NO. 309 OF 2013** 7 biological father. The decree was passed on 05.02.2020. Before the Family Court the respondent has sought for a relief of past maintenance. In view of the fact that appellant is the biological father as held in O.S.No.454 of 2009, we have no doubt that the claim for maintenance would lie before the Family Court. In such circumstances we are of the view that the order granting past maintenance has to be upheld. 11. Learned counsel for the appellant submits that the decree in O.S.No.454 of 2009 was an ex-parte decree, and he has filed an application to set aside the exparte decree. We called for telephonic instructions from the Munisiff Court, Thaliparamba. We have been told that an application for ex-parte decree was filed as I.A.No.922 of 2020 on 09.02.2021 and it was dismissed for default, as there was no representation. Again I.A.No.1/2021 has been filed by the appellant on 10.12.2021 for restoration, ans that is now posted to **MAT.APPEAL NO. 309 OF 2013** 8 22.12.2021. Whatever it be, now there is a valid binding decree operating against the appellant. Till that binding judgment operates, the appellant is bound to pay the maintenance, as he is found to be the biological father. It is made clear that until that ex-parte decree is set aside or varied in appropriate manner, that will hold to bind the appellant. In such circumstances, he is bound to pay the maintenance. The maintenance awarded is only Rs.500/- per month, and it is quite reasonable, we direct the appellant to pay the past maintenance as ordered by the Family Court. 12. It is made clear that the liability of the appellant to pay the past maintenance is subject to the result of any challenge made by the appellant with regard to the civil court judgment. If it is found in any appropriate legal proceedings that the appellant is not the biological father of the respondent. The appellant is free to seek restitution of any amount **MAT.APPEAL NO. 309 OF 2013** 9 paid, pursuant to this judgment, in appropriate manner. The Mat. Appeal is disposed of accordingly. Sd/- **A.MUHAMED MUSTAQUE, JUDGE** Sd/- **SOPHY THOMAS, JUDGE** AS