VANESSA FERNANDES Vs. FRANCISCO FERNANDES

JUDGEMENT

(1.) Whether a suit instituted for a declaration that the plaintiff is not the father of a minor child, born to his legally wedded wife whilst the marriage is subsisting, can validly be proceeded with and decreed against a minor if, on the refusal of the appointed guardian ad litem to accept the appointment and to act on behalf of such child, the Court fails to make a fresh appointment, is the main question that this Letters Patent Appeal gives rise to. Appellant answered this question in the negative, whilst the first respondent held that opposite view. The learned single Judge of this Court (Kamat, J.), while disposing the appeal filed by the present second respondent against the judgment dt. 24th January, 1979, whereby the learned Civil Judge, Senior Division, Mapusa, decreed the suit, upheld the view of the first respondent. Hence, this appeal.

(2.) A few facts may, as necessary for the proper understanding of the case, be stated. Respondents herein got married at Bombay, their marriage having been solemnized under the Catholic religious rites on 4th October, 1952 and thereafter, registered in the office of the Civil Sub-Registrar, Mapusa in the year 1959. Admittedly, prior to 1973, five legitimate issues were born out of wedlock and on 13-4-1973, the second respondent gave birth, at Thane, to the appellant Vanessa. On 24th January, 1977, almost four years after the birth of the appellant, the first respondent filed a suit in the Court of the Civil Judge, Senior Division, Mapusa, against the second respondent and the minor Vanessa for a declaration that the appellant herein is not his legitimate daughter and for the consequential relief of cancellation of the relevant entry in the registration records, on the ground that she could not have been conceived from him since he was absent on board of ships outside India from February 1971 to April 1973 and had, as such, no contact at all, physical or otherwise with the second respondent. He also prayed, in the plaint itself, that a guardian ad litem be appointed to the minor Vanessa as required by Art. 16 of Decree No.2 of 1910 and Art.113 of the Portuguese Civil Code and suggested therefor the name of one Benjamin Fernandes, Step-brother of the second respondent. Then, by a separate application dt. 29th January, 1977, the plaintiff/first respondent herein, once again, prayed that the said Benjamin be appointed guardian ad litem to the said minor in terms of the aforesaid Art. 16 of the Decree No. 2 and O. 32, R. 3, C.P.C. By his order dt. 29th January, 1977, the learned trial Judge appointed Benjamin Fernandes as guardian to Vanessa, but as he informed the Court that he was not willing to act as guardian, the trial Judge made, on the same day, an order appointing Mrs. Claudina Noronha as guardian ad litem to the minor Vanessa/appellant herein in substitution of Benjamin. The newly appointed guardian, in her turn, also informed the Court in writing that she was not prepared to act as guardian. The learned trial Judge, however, held the view that since the said Mrs. Claudina was the Grandmother of the minor and no satisfactory reasons were given for not accepting the guardianship, she could not refuse it. He further recorded a statement of Mrs. Claudina Noronha to the effect that she did not wish to file a written statement on behalf of the minor Vanessa, nor she desired to make any other statement. The second respondent, however, filed her written statement, and thus, the suit was proceeded with unopposed by the minor/appellant herein, who was only three years old at the relevant time, and finally decreed against her and the second respondent by judgment dt. 24th January, 1979.

(3.) An appeal against this judgment and decree was filed by the present second respondent and then, at the time of the hearing, the Special Officer of this Court was appointed as guardian ad litem to the minor Vanessa/appellant herein. The learned single Judge, who heard the said appeal, was pleased, by his judgment delivered on 4-8-84, to affirm the judgment and decree passed by the trial Court. He negatived the preliminary objections raised on behalf of the appellant present second respondent in respect of the maintainability of the suit on account of, (1) want of territorial jurisdiction of the trial Court; (2) bar of limitation; and (3) non-appointment of a guardian ad litem to the minor in the suit, as well as the contention of the learned counsel appearing on behalf of the minor that the decree passed by the trial Court was a nullity as there was no proper representation for the minor since guardianship cannot be foisted on a person who is not willing to accept it, and as, in the circumstances, there was no effective guardian. Now, it is on account of the findings of the learned single Judge as regards the last point that this Letters Patent Appeal was filed on behalf of the minor Vanessa.