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Illegitimacy of child is not with Family court – SC

CASE NO.:Appeal (civil) 1792 of 2004

PETITIONER:Renubala Moharana & Anr.

RESPONDENT:Mina Mohanty & Ors.

DATE OF JUDGMENT: 23/03/2004


(arising out of S.L.P. (CIVIL) No. 22395 of 2001)

P. Venkatarama Reddi, J.

Leave granted.

The appellants herein filed a petition before the Family Court, Cuttack describing it as a ‘petition under Section 7 of the Guardians and Wards Act read with Section 7 of the Family Courts Act’. The prayers made therein are as follows:
(a) To declare that late Samuel Maharana nick named as ‘Gulu’ is the father of the minor child ‘pupun’ alias ‘Pallav Pratik Maharana’ and not Kanhu Ch. Pattnaik the respondent No.2 and the birth certificate obtained by respondent No.1 is not valid as the same is based on false information. Only the DNA finger print will prove the truth of the respondent No.1.
(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 Hon’ble Court.

According to the petitioners, their son, named Samuel
Maharana developed intimacy with the first respondent
Meena Mohanty and both of them lived together in the
Departmental Quarter allotted to Samuel Maharana. On
account of their cohabitation, a male child was born to them
on 25th January, 1991. Samuel Maharana and Respondent
No.1 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
Patnaik and Kanhu Charan Patnaik as his father. It is alleged
that the first respondentMina Mohanty, though married to
the second resondentKanhu Charan Patnaik, they were
living separately from 1987. Samuel Maharana died on 7th
November, 1994 ‘under mysterious circumstances’. After the
death of Samuel, the 2nd 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 Respondent
No.1 was frequently visiting the house of the appellants to
see the child. On one such occasion i.e., 1st April, 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 post on
22nd September, 1995 to send back the child. However, it
was returned undelivered. Hence the petition was filed as
aforesaid in the Family Court.
Respondents 1 & 2 took the stand that the child was
born through their wedlock and denied the illicit relationship
between Samuel and respondent No.1. They claimed to be
the natural guardians of the child.
After trial, the Family Court, by its judgment dated 2nd
May, 2000 dismissed the petition on the ground that the
petition itself was not maintainable in the light of Section 7
of the Family Courts Act. As regards the prayer for
guardianship, the learned Judge observed that respondent
No.1 being the natural mother against whom there was no
adverse allegation, there was no need to appoint any other
person as guardian. On appeal to the High Court, the
Division Bench of the High Court agreed with the conclusion
of the Family Court that the first relief sought for by the
appellants cannot be granted by the Family Court for the
reason that declaration as to the legitimacy of any person
without any claim of marital relationship is not directly
entertainable by the Family Court. In view of the admitted
fact that Samuel Maharana and respondent No.1 were not
married, the child allegedly born through Samuel Maharana
can never be a legitimate child. However, the High Court
reversed the order of the Family Court insofar as the petition
related to the custody of the minor. The High Court held that
the prayer for guardianship and custody is entertainable by
the Family Court under Explanation (g) to Section 7(1) of
the Act. While directing the Family Court to consider the
prayer for guardianship and/or custody of the minor, the
High Court, having noted the fact that the evidence adduced
on behalf of the parties was not discussed and considered,
also observed that “in order to determine the question of
guardianship or custody of the minor, if it becomes
collaterally necessary to consider the question of status of
the minor or the parties to the proceedings, the Family Court
may be required to consider the same and give its finding”.
In effect, the High Court held that while deciding the petition
for guardianship/custody, the question of status or inter se
relationship of the parties can be incidentally considered by
the Family Court.

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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 the 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
Respondent No.1 with their sonthe late Samuel Maharana.
Accepting the case of the appellants, the child cannot
obviously be treated as a legitimate child of Samuel and
Meena Mohanty (R1). 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. That liberty has been granted to the
Family Court. However, as rightly held by the Family Court
and the High Court, the declaratory relief as regards the
illegitimacy of the child cannot be granted. In effect, that is what the appellants want under prayer No.1.
We therefore see no ground to interfere with the

judgment under appeal. Appeal is dismissed without costs.

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