SINDHU @ LINTA Vs. HILAL BABU

JUDGEMENT

(1.) 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 Mini 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 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.) 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 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.