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2015 DIGILAW 554 (ORI)

Rajendra Narayan Santi v. Bailochan Santi

2015-09-23

A.K.RATH

body2015
JUDGMENT : A.K. Rath, J. By this petition under Article 227 of the Constitution of India, challenge is made to the order dated 23.7.2007 passed by the learned Civil Judge (Junior Division), Jajpur in Civil Suit No.76 of 2007. By the said order, the learned trial court returned the plaint to the petitioner to present the same before the Family Court, Cuttack. 2. The petitioner as plaintiff filed a suit, for declaration that he is the natural born son of defendant no.1 and not Madhu Santi and his widow, in the court of learned Civil Judge (Junior Division), Jajpur, which was registered as Civil Suit No.76 of 2007. By order dated 23.7.2007, the learned trial court returned the plaint to the petitioner to present the same before the Family Court, Cuttack. The learned trial court came to hold that the relief sought for in the suit pertains to status and legitimacy of the plaintiff. 3. Heard Mr. Mohapatra, learned counsel for the petitioner. None appeared for the opposite party in spite of valid service of notice. 4. Mr. Mohapatra, learned counsel for the petitioner, submitted that the relief claimed in the suit cannot be granted by the Family Court. The same is essentially a common law remedy and the Civil Court has jurisdiction to decide the issue. On a wrong interpretation of Section 7 of the Family Courts Act, the learned trial court returned the plaint to the petitioner. He relied on a decision of the apex Court in the case of Renubala Moharana and another v. Mina Mohanty and others, AIR 2004 SC 3500 . 5. Section 7(1) of the Family Courts Act, 1984, which is the hub of the issue, reads as follows:- “7. Jurisdiction.-(1) Subject to the other provisions of this Act, a Family Court shall- (a) have and exercise all the jurisdiction exercisable by any district court or any subordinate civil court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation; and (b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a district court or, as the case may be, such subordinate civil court for the area to which the jurisdiction of the Family Court extends. Explanation.-The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely:- (a) a suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage; (b) a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person; (c) a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them; (d) a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship; (e) a suit or proceeding for a declaration as to the legitimacy of any person; (f) a suit or proceeding for maintenance; (g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor. xxx xxx xxx” 6. On a conspectus of the said Section, it is evident that if the nature of the suit or proceeding falls in Explanation (a) to (g) of Section 7 of the Family Courts Act, then only the Family Court can exercise its jurisdiction. Explanation (e) to Section 7(1) vests jurisdiction in the Family Court to decide an issue as to the legitimacy of a person. Legitimacy and adoption are two different and distinct concepts. Adoption of child does not depend upon the legitimacy of the said child. Section 10 of the Hindu Adoptions and Maintenance Act, 1956 deals with eligibility of a child, male or female, for adoption. The same reads as follows:- “10. Person who may be adopted.-No person shall be capable of being taken in adoption unless the following conditions are fulfilled, namely :- (i) he or she is a Hindu; (ii) he or she has not already been adopted; (iii) he or she has not been married, unless there is a custom or usage applicable to the parties which permits persons who are married being taken in adoption; (iv) he or she has not completed the age of fifteen years, unless there is a custom or usage applicable to the parties which permits persons who have completed the age of fifteen years being taken in adoption.” 7. A bare reading of the said Section makes it clear that any boy or girl may be adopted subject to fulfilment of conditions (i) to (iv) mentioned in Section 10 of the Hindu Adoptions and Maintenance Act. The said Section does not lay down any bar to adoption on the ground of illegitimacy of a child. 8. The essential ingredient of Section 7 of the Family Courts Act should be a dispute between the husband and the wife and the said dispute can be with regard to marital status, divorce, restitution of conjugal rights, judicial separation, custody of a child, maintenance and sharing of property. 9. In Renubala Moharana (supra), the appellants therein filed a petition before the Family Court, Cuttack under Section 7 of the Guardians and Wards Act praying, inter alia, for a declaration 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-respondent no.2 and the birth certificate obtained by respondent no.1 is not valid as the same is based on false information, to appoint the appellants as guardians of the minor child and direct the respondents to deliver the custody of the child. The Family Court by judgment dated 2.5.2000 dismissed the petition on the ground that the same 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, a Division Bench of the 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. But then the order of the Family Court was reversed in so far as petition related to the custody of the minor child. This Court held that the prayer for guardianship and custody is entertainable by the Family Court under Explanation (g) to Section 7(1) of the Family Courts Act. But then the order of the Family Court was reversed in so far as petition related to the custody of the minor child. This Court held that the prayer for guardianship and custody is entertainable by the Family Court under Explanation (g) to Section 7(1) of the Family Courts Act. While directing the Family Court to consider the prayer for guardianship and/or custody of the minor, the 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 Division Bench 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. The appellants filed SLP before the apex Court challenging the judgment and order of this Court. The apex Court held that declaratory relief as regards the illegitimacy of the child cannot be granted by the Family Court. It was further held that 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. 10. The prayer in the suit does not fall under Explanation (a) to (g) of Section 7(1) of the Family Courts Act. The nature of relief claimed cannot be granted by the Family Court. Thus the Civil Court has jurisdiction to decide the suit. 11. In view of the same, this Court has no hesitation to quash the impugned order. Accordingly, the order dated 23.7.2007 passed by the learned Civil Judge (Junior Division), Jajpur in Civil Suit No.76 of 2007 is quashed. The learned trial court is directed to proceed with the suit. The petition is allowed.