Sindhu @ Linta v. Hilal Babu

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE BABU MATHEW P.JOSEPH THURSDAY, THE 11TH DAY OF OCTOBER 2012/19TH ASWINA 1934 Mat.Appeal.No. 432 of 2012 (B) -----------------------------------OP.2123/2010 of FAMILY COURT,ERNAKULAM --------- APPELLANT/PETITIONER: ---------------------------- SINDHU @ LINTA, AGED 34 YEARS W/O VINCENT JOSEPH,PARAMBIL HOUSE,KOLANI.P.O THODUPUZHA,IDUKKI DISTRICT PRESENTLY RESIDING AT MEPPATHU HOUSE,DOOR NO.32/501 L.P.S.ROAD,PALLINADA,PALARIVATTOM.P.O ERNAKULAM DISTRICT,PIN-682025. BY ADVS.SRI.C.S.MANU SRI.S.K.PREMRAJ ## RESPONDENT/RESPONDENT: -------------------------------- HILAL BABU, S/O.LATE P.K.KUNJUMUHAMMED RESIDING AT PUTHENPURACKAL HOUSE,KAYAMKULAM.P.O KAYAMKULAM VILLAGE,KOLLAM DISTRICT,KERALA STATE PIN-690502. R1 BY ADV. SRI.R.RAJASEKHARAN PILLAI R1 BY ADV. SMT.SABINA JAYAN THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 11-10-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & BABU MATHEW P. JOSEPH, JJ. -----------------------------------------------Mat. Appeal No.432 of 2012 -----------------------------------------------Dated this the 11[th] day of October, 2012 ## **JUDGMENT** _Pius C. Kuriakose, J_ Under challenge in this Original Petition is the common order passed by the Family Court in OP.2123/10 and I.A.343/11 which was filed by the respondent in O.P.2123/10. Under the impugned common order the Family Court, Ernakulam found that the Family Court does not have jurisdiction to grant the relief sought for in the OP – a relief for declaration that the appellant herein is the legitimately born child of the respondent. The learned Family Court on analysing the evidence adduced by the parties; documentary evidence - Exts.A1 and B1 to B4 and following the judgment of the Supreme Court in Renubala Moharana and another v. Mina Mohanty and others (2004(4) SCC 215) and the judgment of this Court in Bharat Kumar v. Selma Mat. Appeal No.432 of 2012 -2Mini and another (2007(1) KHC 860) has taken a view that the Family Court has no jurisdiction to decide the paternity of a child born not out of a valid matrimony. As the appellant was not prepared to file application under Order VII Rule 10 (1) the Family Court ordered the OP to be returned to the appellant for presentation before the proper court. It is submitted that the appellant accepted the impugned order and filed an Original Suit before the Munsiff Court, Ernakulam. 2. Sri.C.S.Manu, the learned counsel for the appellant submitted that as far as the appellant is concerned she is not particular that her case should be decided by the Family Court itself. It will suffice for her if decree is given to her by a competent Civil Court. But the learned Munsiff according to the appellant has expressed a view that the view taken by the Family Court in the impugned order is erroneous. According to the learned Munsiff there are sufficient pleadings in the OP submitted before the Family Court regarding the existence of a legal marriage between the Mat. Appeal No.432 of 2012 -3- parents of the appellant. Hence it was requested that the appeal be admitted and the correctness of the impugned order be examined. It was submitted by Sri.Manu further that the respondent who had raised a contention before the Family Court that the Family Court does not have jurisdiction and it is the Civil Court which is having jurisdiction is now contending before the Munsiff Court that the Munsiff Court does not have jurisdiction. The appellant is being put to difficulty because of this, so submitted Sri.Manu. 3. The learned counsel for the respondent would support the impugned order. 4. The appellant having admitted the impugned order and having filed a Original Suit before the Munsiff Court on the basis of the permission granted under the impugned order cannot now at this stage challenge the impugned order. We enquired of the learned counsel for the respondent as to which court has jurisdiction to grant the reliefs claimed in the OP according to her. The learned counsel had no answer to give us. Mat. Appeal No.432 of 2012 -4- 5. We have considered the submissions addressed at the Bar. We have gone through the impugned order. Though not in so many words what has been found by the Family Court in the impugned order is that even according to the pleadings raised by the appellant in the OP, there is no valid matrimony between her parents (Rosamma-mother, a Christian and Hilal Babu-father, a Muslim) especially as there is no case that Rosamma was converted to Islam before the marriage. In that view of the matter, the learned Family Court, according to us was justified in following the two decisions referred to in the order and taking the view that it lacks in jurisdiction to entertain the OP. We do not think that the learned Munsiff has made any observation regarding the correctness of the view taken by the Family Court. The Munsiff is not sitting in judgment over the decision taken by the Family Court. The learned Munsiff is expected to take a decision in the suit filed by the appellant accepting the decision taken by the Family Court. If the respondent is blowing hot and cold as to the court which has jurisdiction to Mat. Appeal No.432 of 2012 -5- grant the relief sought for by the appellant we are sure that the learned Munsiff will be able to take a decision regarding the bona fides of the inconsistent stand taken by the respondent regarding the identity of the court which is having jurisdiction of the matter. The appeal is dismissed in limine. Sd/PIUS C. KURIAKOSE JUDGE Sd/BABU MATHEW P. JOSEPH JUDGE kns/- //TRUE COPY// P.A. TO JUDGE Mat. Appeal No.432 of 2012 -6- PIUS C. KURIAKOSE & C. K. ABDUL REHIM, JJ. -----------------------------------------------C. M. Application No.1672 of 2012 in Mat. Appeal No.432 of 2012 -----------------------------------------------Dated this the 12[th] day of September, 2012 ## **ORDER** ## _Pius C. Kuriakose, J_ This application seeking condonation of delay of 449 days is very stiffly opposed by the learned counsel for the respondent. She in fact sought time to file counter. We are not inclined to grant time to file counter. We are of the view that on terms, the application can be allowed. Accordingly, we allow the application and condone the delay subject to the following conditions:- a) The appellant shall pay a sum of ` 1,500/- as cost to the respondent through her counsel in this Court within ten days from today and produce receipt. b) The appellant shall pay ` 500/- to the Kerala High Court Advocate's Welfare Fund Trust also and produce Mat. Appeal No.432 of 2012 -7- receipt. Once the Registry notices receipt against payment of the above two amounts, the appeal will be posted for admission. Sd/PIUS C. KURIAKOSE JUDGE Sd/C. K. ABDUL REHIM JUDGE kns/- //TRUE COPY// P.A. TO JUDGE