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CASE NO.: Appeal (civil)  1792 of 2004

PETITIONER: Renubala Moharana & Anr.

RESPONDENT: Mina Mohanty & Ors.

DATE OF JUDGMENT: 23/03/2004

BENCH: RUMA PAL & P. VENKATARAMA REDDI.

JUDGMENT: JUDGMENT

(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\027 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 respondent\027Mina Mohanty, though married to  the second resondent\027Kanhu 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

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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. 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 son\027the 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.