High Court of KeralaSingle Judge2020-03-03Petition dismissed. The High Court declined to ...

Leon Thomas Kumar @ Layon Thomas Kumar v. Mariam Sayanora Thomas

Case / Petition Number:Crl.M.C.No.1713 of 2020

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: R. Narayana Pisharadi
Judgment Date: 2020-03-03
Court Decision / Holding: The petition under Section 482 Cr.P.C. is dismissed. The court held that quashing the Family Court proceedings under Section 125(1) Cr.P.C. is not permissible in a Section 482 petition, given that paternity is a question that may require civil adjudication. The judgment notes the option to pursue a civil declaration to resolve paternity, but leaves the matter of final paternity status to civil court if pursued.
Final Disposition: Petition dismissed. The High Court declined to quash the Family Court’s maintenance proceedings under Section 482 Cr.P.C. and noted that final paternity determination should be sought in civil proceedings if desired.

Parties to the Case

Appellants / Petitioners

Leon Thomas Kumar @ Layon Thomas Kumar

Respondents

Mariam Sayanora Thomas

Legal Representation & Advocates

Counsels for Petitioners

• Sri M.R. Rajesh
• Smt. E.S. Sandhya

Case Synopsis & Summary

This is a Criminal Miscellaneous Case under Section 482 Cr.P.C. heard by the High Court of Kerala, challenging maintenance proceedings pending in Family Court, Thiruvananthapuram under Section 125(1) Cr.P.C. The respondent, a minor aged 15, claimed maintenance from the petitioner, who asserts that he is not her father. The petitioner produced several documents—the respondent’s birth certificate naming Roshini Robinson and Arthur Leo Levillard as parents; passports of the mother and the respondent; and other materials. He contends that these documents establish the respondent’s paternity by persons other than him and contend the maintenance petition is an abuse of process of law calling for quashing. The court scrutinized whether Section 482 Cr.P.C. can be invoked to quash such proceedings. It noted that paternity is a factual matter ordinarily resolvable in the appropriate civil or Family Court forum, and that Section 125(1) proceedings are summary and do not finally determine status. While Alexander v. Jacob Antony was cited to acknowledge possible incidental paternity findings in 125 proceedings, the court held that final determination of paternity should be sought in civil proceedings if desired. The court ultimately refused to quash under 482 Cr.P.C., dismissed the petition, and left open the possibility of civil declarations if pursued.

Provisions of Law Cited

Section 482 Cr.P.CSection 125(1) Cr.P.C

Legal Doctrines & Maxims

125(1) proceedings are summary in nature; cannot finally determine status
High Court cannot decide factual disputes in a Section 482 Cr.P.C petition
Final determination of paternity should be in civil court if pursued

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contended that the respondent is not his daughter and that there exist numerous documents (birth certificate, passports, etc.) showing the respondent’s paternity by another man (Roshini Robinson and Arthur Leo Levillard). He argued that the maintenance proceeding under Section 125(1) Cr.P.C. is being used as an abuse of process of the court and should be quashed under Section 482 Cr.P.C. He further submitted that incidental findings on paternity could be made only in appropriate fora and that the civil court or Family Court should determine paternity if necessary.

Contentions of Respondents

Not explicitly stated in the judgment. The respondent seeks maintenance and the documents presented by the petitioner indicate potential paternity by others; the judgment discusses the respondent’s claim in the context of maintenance rather than detailing her explicit arguments.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Alexander v. Jacob Antony	2012 (2) KHC 847 : 2012 (3) KLT 36	Positive	Cited to support that paternity can be incidental to maintenance proceedings in the 125(1) framework.
Dwarika Prasad v. Bidyut Prava Dixit	AIR 1999 SC 3348	Positive	Cited to justify that final determination of the relationship should be in civil court if sought.
Dukhtar Jahan v. Mohammed Farooq	AIR 1987 SC 1049	Positive	Cited to endorse seeking civil declaration to resolve paternity and liability for maintenance.

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Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **TUESDAY, THE 03RD DAY OF MARCH 2020 / 13TH PHALGUNA, 1941** ## **Crl.MC.No.1713 OF 2020(D)** **MC 210/2017 OF FAMILY COURT,TRIVANDRUM** ## **PETITIONER/RESPONDENT:** **LEON THOMAS KUMAR @ LAYON THOMAS KUMAR AGED 50 YEARS S/O.LATE LEON, USHAS NILAYAM, KADAIKULAM, KOTTAPURAM P.O., VIZHINJAM, THIRUVANANTHAPURAM.** **BY ADVS. SRI.M.R.RAJESH SMT.E.S.SANDHYA** ## **RESPONDENT/PETITIONER:** **MARIAM SAYANORA THOMAS AGED 15 YEARS D/O.ROSHNI ROBINSON, REPRESENTED BY HER MOTHER ROSHINI ROBINSON, REMA NIVAS, MARKET ROAD, VALIYATHURA, THIRUVANANTHAPURAM-695008.** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 27.02.2020, THE COURT ON 03.03.2020 PASSED THE FOLLOWING:** Crl.M.C.No.1713/2020 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.M.C.No.1713 of 2020 -----------------------------------------Dated this the 3[rd] day of March, 2020 ## **O R D E R** The petitioner is the respondent in M.C.No.210/2017 filed in the Family Court, Thiruvananthapuram under Section 125(1) of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code'). 2. The respondent herein has filed M.C.No.210/2017 in the Family Court. She has claimed maintenance at the rate of Rs.10,000/- per month from the petitioner. Her plea is that the petitioner is her father. She has claimed that she is the daughter of the petitioner and Smt.Roshini Robinson. 3. The petitioner appeared in M.C.No.210/2017 and filed counter statement. Annexure-B is the copy of the counter statement filed by him. His plea is that he is not the father of the respondent. He asserts that the father of the respondent is Crl.M.C.No.1713/2020 3 Mr.Arthur Leo Levillard, who is the husband of Smt.Roshini Robinson. 4. This petition is filed under Section 482 Cr.P.C for quashing the proceedings in the application for maintenance filed by the respondent. 5. Heard learned counsel for the petitioner. 6. Learned counsel for the petitioner submitted that there are innumerable sterling documents which would prove that the respondent is the daughter of Smt.Roshini Robinson and Mr.Arthur Leo Levillard. Learned counsel has contended that the application filed by the respondent claiming maintenance from the petitioner is an abuse of process of the court and the law and that the proceedings against him are liable to be quashed. 7. Annexure-C is the copy of the birth certificate of the respondent. Her date of birth is shown as 09.10.2005 in it. The name of her mother is shown as Roshini Robinson and the name of her father is shown as Arthur Leo in Annexure-C birth certificate. 8. Annexure-D is the copy of the passport of Smt.Roshini Crl.M.C.No.1713/2020 4 Robinson. This passport was issued on 06.06.2003. The name of the spouse of Roshini Robinson is shown as Arthur Leo Levillard in it. 9. Annexure-E is the copy of the passport of the respondent. This passport was issued on 03.03.2006. The name of the father/legal guardian of the respondent is shown as Arthur Leo Levillard and the name of her mother is shown as Roshini Robinson in it. 10. Annexure-H is the copy of the first information report in Crime No.62/2005 of the Balaramapuram police station. It is a case registered for man missing on the basis of the statement given to the police by Mr.Arthur Leo Levillard. The case was registered on 26.01.2005. Annexure-H shows that Mr. Arthur Leo Levillard had stated to the police that his wife Roshini was missing from 12.01.2005 onwards. 11. Annexure-I is the copy of the statement given to the Magistrate by Smt.Roshini Robinson when she was traced out and produced before the court on 20.07.2005. She had stated to the Magistrate that Mr.Arthur Leo is her husband and she had gone Crl.M.C.No.1713/2020 5 abroad without informing her husband and relatives. 12. Annexure-K is the copy of the statement given to the police by Smt.Roshini Robinson when she was traced out. She had stated to the police that she was married to Mr.Arthur Leo. 13. No doubt, the documents referred to above indicate that the respondent is the daughter of Smt.Roshini Robinson and Mr.Arthur Leo. But the question is whether this Court can quash the proceedings under Section 125(1) of the Code against the petitioner on the basis of the aforesaid documents. 14. In order to quash the proceedings against the petitioner in M.C.No.210/2017 in the Family Court, this Court has to enter into a definite finding that the petitioner is not the father of the respondent. Such a finding of fact cannot be made by this Court in a petition filed under Section 482 of the Code. 15. In the instant case, there is a plea in the application for maintenance that the mother of the respondent and the petitioner had lived together and that the petitioner had taken the mother of the respondent to Dubai. The mother of the respondent is not a total stranger to the petitioner. The Crl.M.C.No.1713/2020 6 petitioner was working abroad and the mother of the respondent was abroad for a period of more than six months from 12.01.2005. The respondent was born on 09.10.2005. In such circumstances, on the basis of the entries in the documents produced by the petitioner before this Court, no decision can be taken by this Court with regard to the paternity of the respondent. 16. It is trite that the High Court cannot decide factual disputes in a petition filed under Section 482 Cr.P.C of the Code. 17. If a minor child has initiated proceedings against a person under Section 125(1) of the Code, claiming maintenance against him, on the plea that such person is his/her father and if such person disputes the paternity of the child, he has two options. If the claimant, prima facie, proves in the proceedings under Section 125(1) of the Code that he is the father, he could adduce evidence in such proceedings and prove his plea. The Family Court would indeed have the power to incidentally decide the question of paternity in such proceedings (See **Alexander v. Jacob Antony : 2012 (2) KHC 847 : 2012 (3) KLT 36** ). However, it is to be remembered that the proceedings under Section 125(1) of the Code are summary in nature. The order passed in such proceedings does not finally determine the status and the rights and obligations of the parties and the Crl.M.C.No.1713/2020 7 civil court is the appropriate forum to decide such matters. Final determination of the relationship between the parties has to be made by the civil court, if the party approaches it (See **Dwarika Prasad v. Bidyut Prava Dixit : AIR 1999 SC 3348** ). Therefore, the second option is to seek an appropriate declaration from the civil court and prove that the child was not born to the petitioner and as such he is not legally liable to maintain it. The second option is the one advised by the Apex Court (See **Dukhtar Jahan v. Mohammed Farooq : AIR 1987 SC 1049** ). 18. In the aforesaid circumstances, the prayer for quashing the proceedings initiated against the petitioner by the respondent, claiming maintenance from him, cannot be quashed by invoking the power under Section 482 Cr.P.C. The petition is liable to be dismissed. Consequently, the petition is dismissed. (sd/-) ## **R.NARAYANA PISHARADI, JUDGE** **jsr** Crl.M.C.No.1713/2020 8 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **ANNEXURE A A TRUE COPY OF THE M.C.NO.210/2017 ON THE FILE OF THE FAMILY COURT, THIRUVANANTHAPURAM DATED 21.04.2017.** **ANNEXURE B A TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER DATED 29.11.2019.** **ANNEXURE C A TRUE COPY OF THE BIRTH CERTIFICATE OF THE RESPONDENT WITH REGISTRATION NO.19297/2005 DATED 04.11.2005 ISSUED BY THE REGISTRAR OF BIRTHS AND DEATHS, THIRUVANANTHAPURAM CORPORATION.** - **ANNEXURE D A TRUE COPY OF THE PASSPORT OF THE MOTHER OF THE RESPONDENT NO.E 4477818 ISSUED ON 06.06.2003 BY THE PASSPORT OFFICER, TRIVANDRUM.** - **ANNEXURE E A TRUE COPY OF THE PASSPORT OF THE RESPONDENT NO.F 6608101 ISSUED ON 03.03.2006 BY THE PASSPORT OFFICER, TRIVANDRUM.** - **ANNEXURE F A TRUE COPY OF THE M.C.NO.302/2015 ON THE FILE OF THE FAMILY COURT, THIRUVANANTHAPURAM FILED BY THE RESPONDENT HEREIN.** **ANNEXURE G A TRUE COPY OF THE ORDER DATED 18.02.2017 IN M.C.NO.302/2015 ON THE FILE OF THE FAMILY COURT, THIRUVANANTHAPURAM, FILED BY THE RESPONDENT HEREIN.** **ANNEXURE H A TRUE COPY OF THE FIR NO.62/2005 OF BALARAMAPURAM POLICE STATION.** Crl.M.C.No.1713/2020 9 ## **ANNEXURE I** **A TRUE COPY OF THE STATEMENT GIVEN BY THE MOTHER OF THE RESPONDENT SMT.ROSHINI ROBINSON BEFORE THE JFMCIII, NEYYATTINKARA.** ## **ANNEXURE J** **A TRUE COPY OF THE BOND DATED 20.07.2005 EXECUTED BY THE MOTHER OF THE RESPONDENT ROSHINI ROBINSON IN FIR NO.62/2005 OF BALARAMAPURAM POLICE STATION.** ## **ANNEXURE K** **A TRUE COPY OF THE REPORT OF THE SI OF POLICE BALARAMAPURAM ALONG WITH THE SIGNED STATEMENT OF THE RESPONDENT'S MOTHER DATED 20.07.2005 FILED IN UN36/2005 (FIR NO.62/2005 OF BALARAMAPURAM POLICE STATION).** RESPONDENTS' EXHIBITS : NIL PS TO JUDGE