Moharana & Anr Vs. Mina Mohanty & Ors  Insc 186 (23 March 2004)
Pal & P. Venkatarama Reddi.
out of S.L.P. (CIVIL) No. 22395 of 2001) P. Venkatarama Reddi, J.
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:
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.
appoint the petitioners as guardians of the person of the said minor child.
direct the respondents to deliver the custody of the child to the petitioners
within such period as deemed fit by the Hon'ble Court.
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.
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.
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.
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".
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.
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.
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.
therefore see no ground to interfere with the judgment under appeal. Appeal is
dismissed without costs.