## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE**
## **&**
**THE HONOURABLE MR. JUSTICE A.M.BABU**
**MONDAY, THE 03RD DAY OF DECEMBER 2018 / 12TH AGRAHAYANA, 1940**
**Mat.Appeal.No. 195 of 2011**
**OS 306/2000 of FAMILY COURT,KOLLAM DATED 31-05-2010**
## **APPELLANTS/PLAINTIFFS:**
- **1 P.RATNAMMA, AGED 50 YEARS, PANATHU KIZHAKKATHIL, PULIYOOR VANCHI, VADAKKUM MURI, THAZHAVA.P.O., KARUNAGAPPALLY, KOLLAM.**
- **2 ATHIRA D/O. LATE AYYAPPAN ACHARY AGED 23 YEARS, PANATHU KIZHAKKATHIL, PULIYOOR VANCHI VADAKKUM MURI, THAZHAVA.P.O., KARUNAGAPPALLY, KOLLAM.**
**BY ADV. SRI.V.PHILIP MATHEW**
## **RESPONDENTS/DEFENDANTS :**
- **1 SARASWATHY, AGED 60 YEARS, SURESH BHAVAN, KOLLAKA.P.O.,KARUNAGAPALLY, KOLLAM-690536**
- **2 ASHA AGED 35 YEARS D/O. LATE AYYAPPAN ACHARY,, SURESH BHAVAN, KOLLAKA.P.O.,KARUNAGAPALLY,KOLLAM 690536**
- **3 ANIL AGED 33 YEARS S/O. LATE AYYAPPAN ACHARY, SURESH BHAVAN, KOLLAKA.P.O.,KARUNAGAPALLY,KOLLAM-690536**
- **4 AJITH AGED 30 YEARS S/O. LATE AYYAPPAN ACHARY, SURESH BHAVAN, KOLLAKA.P.O.,KARUNAGAPALLY,KOLLAM-690536**
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## **Mat.Appeal Nos.195 & 204/2011**
**5 GENERAL MANAGER PIGMENT UNIT KERALA MINERALS AND METALS, CHAVARA, KOLLAM691583 BY ADVS. SRI.B.K.RAJAGOPAL SRI.T.MADHU**
**THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 03.12.2018, ALONG WITH Mat.Appeal.204/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**Mat.Appeal Nos.195 & 204/2011**
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**IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE**
**&**
**THE HONOURABLE MR. JUSTICE A.M.BABU**
**MONDAY ,THE 03RD DAY OF DECEMBER 2018 / 12TH AGRAHAYANA, 1940**
**Mat.Appeal.No. 204 of 2011**
**OS 240/2000 of FAMILY COURT,KOLLAM DATED 31-05-2010**
## **APPELLANTS/PLAINTIFFS**
**1 P.RATNAMMA AGED 50 YEARS, PANATHU KIZHAKKATHIL, PULIYOOR VANCHI VADAKKUM MURI,, THAZHAVA PO,KARUNAGAPALLY , KOLLAM.**
- **2 ATHIRA D/O.LATE AYYAPPAN ACHARY, AGED 23 YEARS**
- **PANATHU KIZHAKKATHIL,PULIYOOR VANCHI, VADAKKUM MURI,THAZHAVA PO, KARUNAGAPPALLY,, KOLLAM.**
- **BY ADV. SRI.V.PHILIP MATHEW**
## **RESPONDENTS/DEFENDANTS :**
- **1 SARASWATHY AGED 60 YEARS**
- **SURESH BHAVAN,KOLLAKA PO,KARUNAGAPPALLY, KOLLAM 690 518.**
- **2 ASHA AGEED 35 YEARS, DO.LATE AYYAPPAN ACHARY, SURESH BHAVAN,KOLLAKA PO,KARUNAGAPPALLY,, KOLLAM 690 518.**
**Mat.Appeal Nos.195 & 204/2011**
4
- **3 ANIL AGED 33 YEARS , S/O.LATE AYYAPPAN ACHARY,SURESH BHAVAN,KOLLAKA PO,KARUNAGAPPALLY,, KOLLAM 690 518.**
- **4 AJITH, AGED 30 YEARS, S/O.LATE AYYAPPAN ACHARY,SURESH BHAVAN,KOLLAKA PO, KARUNAGAPPALLY, KOLLAM 690 518.**
- **5 GENERAL MANAGER PIGMENT UNIT KERALA MINERALS AND METALS, CHAVARA, KOLLAM 691 583.**
**BY ADVS. MS.B.S.KRISHNAN ASSOCIATES SC. KMML SMT.LATHA ANAND SRI.B.K.RAJAGOPAL SRI.K.ANAND (SR.) SRI.T.MADHU**
**THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 03.12.2018, ALONG WITH Mat.Appeal.195/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
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## **Mat.Appeal Nos.195 & 204/2011**
## **JUDGMENT**
A.M.Shaffique, J.
- 1.These two appeals have been filed challenging a common judgment dated 31.5.2010 in O.S.240/2000 and 306/2000 of the Family Court, Kollam. Both these Suits have been filed by the plaintiffs.
- 2.O.S.240/2000 is filed by the plaintiffs seeking a declaration that the 2[nd] plaintiff is the daughter of late Sri.Ayyappan Achary and that she is entitled to get one-fifth share in his assets. They also sought for a mandatory injunction directing the 5[th] defendant to pay a share of the monthly family pension with arrears and for a further declaration that the 2[nd] plaintiff is entitled to get employment under dying-in-harness scheme in the 5[th] defendant company. They sought a further relief seeking recovery of an amount of Rs 92,000/- being half share of pensionery benefits and insurance amount due to the deceased Ayyappan Achary.
**Mat.Appeal Nos.195 & 204/2011**
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- 3.O.S.306/2000 has been filed by the plaintiffs seeking a decree for past and future maintenance from the assets of deceased Ayyappan Achary which came into the hands of the defendants.
4.The defendants filed a written statement objecting to the claim made by the plaintiffs. According to the 1[st] defendant, she is the legally wedded wife of Sri.Ayyappan Achary and defendants 2 to 4 are the children born in the said wedlock. Common evidence was taken in the case. The 2[nd] plaintiff was examined as PW1 and the 1[st] plaintiff as PW2. Defendants 1 to 4 were examined as DWs 1 to 4 respectively. After evaluating the evidence adduced in the case, the Family Court found that the 1[st] defendant is the legally wedded wife of the deceased Ayyappan Achary and there is no marital relationship with the 1[st] plaintiff. Accordingly the Suits had been dismissed.
- 5.The learned counsel for the appellant submits
**Mat.Appeal Nos.195 & 204/2011**
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that the Family Court had dismissed the Suit mainly on the ground that it had no jurisdiction to entertain the Suits as the paternity of the 2[nd] plaintiff was not a matter which is required to be considered by the Family Court. It is pointed out that in an earlier proceeding, ie, in M.C.No.155/1989, the plaintiffs sought for maintenance against Ayyappan Achary and it was found that the 2[nd] plaintiff was entitled for maintenance. In that view of the matter, the argument is that it was incumbent upon the court below to have decided the issue regarding the paternity of the 2[nd] plaintiff.
6.On the other hand, the learned counsel appearing for defendants 1 to 4 would submit that the 1[st] plaintiff had admitted that the 1[st] defendant was the former wife of Ayyappan Achary and defendants 2 to 4 were the children. This is a case in which she claims that a child had been born in an extra marital relationship with Ayyappan Achari. Maintenance has already been awarded by the Magistrate court in an another
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## **Mat.Appeal Nos.195 & 204/2011**
proceedings after entering a finding that Ayyappan Achary was liable to maintain the 2[nd] plaintiff. Under such circumstances, when the consequential reliefs sought for in the above Suits cannot be decreed, the court below was justified in not considering her claim for paternity. That apart, even on admitted facts it is rather clear that the plaintiffs are not entitled for a decree in the Suit.
- 7.The learned counsel appearing for the 5[th] defendant/respondent submitted that as per the service records, the 1[st] defendant is shown as the wife of the deceased Ayyappan Achary and she is the nominee and therefore, the service benefits ought to be given to the nominee alone. It is submitted that the entire service benefits had been disbursed to the 1[st] defendant.
- 8.As far as the finding of the court below regarding the maintainability of the Suit is concerned, it is needless to state that Explanation (e) to Sec.7(1) of the Family Courts
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Acts indicates that a Suit or proceeding for a declaration as to the legitimacy of any person is maintainable. This view had been decided by the Apex Court in Renubala Moharana v. Mina Mohanty (2004 KHC 778). There cannot be any dispute about the fact and if there is any dispute relating to legitimacy of any person, as per Explanation (e) to Sec.7(1), such a Suit is maintainable before the Family Court. In the above cited case, the contention made by the respondent was that the child was born on account of extra marital relationship. It was held therein that the question 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. In Bharat Kumar v. Selma Mini (2007 (1) KHC 860) a Division Bench of this Court held that the Family Court has no jurisdiction to decide the paternity of a child when there is no matrimonial cause. Apparently legitimacy and paternity are two different concepts and though a Suit can be filed for
**Mat.Appeal Nos.195 & 204/2011**
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declaration regarding the legitimacy of any person still, whether there is necessity to consider the paternity of a child, if the substantial relief cannot be granted, is a question that requires consideration.
- 9.Apparently this is a case where the 2[nd] plaintiff claims one-fifth right in respect of the property and service benefits belonging to the deceased Ayyappan Achary. It is an admitted fact that the child was born in an extra marital affair with Ayyappan Achary. Even PW2 in her evidence has clearly stated so during crossexamination. There is no pleading that there was a valid marriage between the 1[st] plaintiff and Ayyappan Achary. In such circumstances, the question of paternity will not arise in this case as paternity by itself will not render any assistance to the plaintiffs. Hence we do not find any error being committed by the Family Court in dismissing the Suits as none of the claims sought for can be granted in the light of the factual circumstances arising in the case.
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10.Since no grounds are made out for interference, appeals are dismissed. No costs. Sd/-
**A.M.SHAFFIQUE Judge Sd/A.M.BABU Judge True copy P.S.To Judge**
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