A.J.Stephen vs Rosemariya
2024 Latest Caselaw 13070 Ker

Kerala High Court

A.J.Stephen vs Rosemariya on 23 May, 2024

Author: Raja Vijayaraghavan

Bench: V Raja Vijayaraghavan

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
        THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
                                &
              THE HONOURABLE MR. JUSTICE P.M.MANOJ
     THURSDAY, THE 23RD DAY OF MAY 2024 / 2ND JYAISHTA, 1946

                    OP (FC) NO. 284 OF 2024

ORDER DATED 10.01.2024 IN I.A NO.1/2023 IN OP NO.1530 OF 2022 OF
FAMILY COURT, KANNUR

PETITIONER/PETITIONER:

          A.J.STEPHEN
          AGED 50 YEARS
          S/O.JOSEPH EDAT KALAYIL HOUSE, KOSAVAN VAYALA P.O,
          THIROOR, IRIKKOOR (VIA), PADIYOOR AMSOM, DESOM KANNUR
          DISTRICT., PIN - 670593

          BY ADVS.
          M.SASINDRAN
          SATHEESHAN ALAKKADAN


RESPONDENT/RESPONDENT:

          ROSEMARIYA
          AGED 10 YEARS
          MINOR, REPRESENTED BY NEXT FRIEND MOTHER SHANI E.S.,
          AGED 28 YEARS, D/O. SUNNY, EDAKKUNNEL HOUSE,
          RAYAROM P.O., ALAKODE (VIA), KANNUR DISTRICT.,
          PIN - 670571

          BY ADVS.
          ATHUL BABU(K/940/2018)


          SRI PRANOY K KOTTARAM, FOR PARTY RESP.



     THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON
23.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP(FC) No.284 of 2024                 2




                                                                       "CR"
                                     JUDGMENT

Raja Vijayaraghavan, J.

Under challenge in this petition filed under Article 227 of the

Constitution of India is the order dated 10.01.2024 in I.A No.1 of 2023

in O.P No.1530 of 2022 on the file of the Family Court, Kannur. By the

aforesaid order, the application filed by the petitioner herein arraying

his 8-year-old daughter as respondent with a prayer to pass an order

under Section 151 of the CPC to undergo DNA test was rejected.

2. Short facts which led to the filing of the petition are as

under:

According to the petitioner, he was arrayed as the respondent in

MC No.345 of 2014 on the file of the Family Court, which was instituted

by the respondent minor child, through her guardian. In the aforesaid

maintenance case, it was contended that the petitioner was conducting

a private English Medium School at Sankarampett in the State of

Andhra Pradesh in the name and style as Don Bosco School. The

mother of the child had worked as a nursery teacher in the school for

the period from 2008 to July 2013. She contended that her mother

was accommodated in the residential home of the petitioner. It is

alleged that the petitioner subjected the mother of the child to rape on

various occasions. The mother became pregnant. In the meanwhile,

her marriage was fixed with a certain Sibi, and the betrothal ceremony

was held on 24.8.2013. Even thereafter, the petitioner continued to

subject her mother to rape. Later, her mother married the aforesaid Sibi

after about one month of the betrothal ceremony. Immediately after

marriage, the mother of the child showed signs of pregnancy and when

she was taken to the hospital, it was revealed that she was 5 ½

months pregnant. The child's mother was abandoned by her husband.

Immediately thereafter, the mother of the child approached the police

and lodged a complaint levelling allegations of rape and based on the

same, Crime No.548 of 2013 of the Irikkur Police Station was registered

inter alia under Section 376 of the IPC. Investigation was conducted

and the case was taken cognizance by the Fast Track Special Court,

Thaliparamba and the same was numbered was S.C.No. 318 of 2015 on

the files of the said court. The petitioner states that the case was tried

and he was acquitted of all charges by judgment dated 31.08.2021.

3. The petitioner contended in the application that he

reasonably doubts the paternity of the minor child. It is in the afore

circumstances that he had approached the Family Court seeking a

declaration that he is not the father of the child.

4. A counter affidavit was filed by the respondents. It was

contended therein that the petition itself was not maintainable before

the Family Court as there is no family relationship between the

petitioner and the mother of the child. It is further stated that the

failure of the petitioner to file an application under Order XXXII of the

CPC is fatal to the application. It was contended that when S.C.No. 318

of 2015 was posted for trial, the petitioner approached the mother of

the child for a negotiated settlement, and after considering the best

interest of the child, an agreement was entered into on 21.4.2021. As

per the terms of the agreement, the mother undertook not to depose in

terms of the prosecution version in the case in which the petitioner

herein was the accused. Consequently, the accused was acquitted of all

charges. It is further stated that the child had filed M.C.No.345/2014

before the Family court seeking maintenance. She filed an application

as C.M.P.No. 1007/2015 seeking to subject the petitioner to a DNA test.

Despite the vehement objections raised by the petitioner, the court

allowed the application and directed the petitioner to appear for the

test. Since the petitioner failed to appear, the test could not be

conducted. Consequently, the Family court proceeded to pass an ex

parte order on 5.1.2016 in the maintenance case. The petitioner

thereafter approached the Family court and filed an application to set

aside the ex parte order. The application was allowed on payment of a

cost of Rs.10000/-. Since the petitioner failed to pay the cost, his

application was rejected and he was ordered to pay maintenance at the

rate of Rs.5000/- to the minor child from 20.8.2014. The petitioner has

been paying the maintenance in terms of the directions issued by the

court. According to the respondent, it was much later, i.e., on

1.10.2022, that the petitioner has come up with a fresh petition seeking

declaration which according to her is not maintainable.

5. The Family Court, after evaluating the facts and

circumstances, came to the conclusion that the petitioner had

suppressed material facts before the court. The court concluded that

the petitioner was acquitted as the mother of the child turned hostile to

the prosecution in compliance with the terms of the agreement entered

into between the parties. In the agreement, the petitioner had

accepted the paternity of the child and had agreed to pay maintenance

as well as compensation to the child. The petitioner had refused to

subject himself to DNA Test in the application filed by the child before

the Family Court seeking maintenance. Though the petitioner had

preferred R.P.(F.C.) No.176/2018 before this Court assailing the order of

maintenance passed in M.C.No.345/2014, the said Revision Petition was

dismissed as withdrawn. The Family Court noted that none of these

aspects were stated by the petitioner in the petition filed by him before

the court below. The fact that he has been paying maintenance to the

child and that he had sought for visitation rights was also adverted to.

Finally, it was held that the fresh application had been filed after a lapse

of several years and his only assertion in the petition is that he

reasonably suspects the paternity of the child.

6. We have heard Sri.M.Sasindran, the learned counsel

appearing for the petitioner, and the learned counsel appearing for the

respondent.

7. We have carefully gone through the records.

8. The instant petition was filed seeking a declaration that the

petitioner herein is not the biological father of the minor respondent.

The records disclosed that such a contention is raised by the petitioner

for the first time only on 1.10.2022, on which day, this petition was

filed. However, the facts disclosed that a crime was registered in the

year 2013 itself at the instance of the mother of the respondent

wherein the allegation is that the petitioner had subjected her to rape

in the month of June and July, 2013, before, and thereabouts. The

aforesaid case has ended in acquittal as rightly contended by the

petitioner. However, we find that the petitioner had entered into an

agreement with the mother of the respondent admitted that they had a

relationship, and accepted the paternity of the child. He had agreed to

pay maintenance to the respondent and also agreed to pay

compensation of Rs.4 lakhs. In terms of the agreement, the mother of

the respondent did not depose in tune with the prosecution version and

it was in the said circumstances that the petitioner was acquitted. We

also find that when the petitioner failed to pay maintenance, the

respondent instituted M.C.No.345/2014 which was allowed. When the

petitioner challenged the paternity of the respondent in the said

proceeding, an application was filed by the respondent to subject the

petitioner to DNA test. However, the petitioner objected to the request.

Though an order was passed against him, he refused to appear for the

test. We also find that the revision petition filed by the petitioner

before this Court was dismissed as withdrawn as early as in the year

2018. None of these aspects were mentioned by the petitioner in his

application. The overwhelming materials against the petitioner clearly

disentitle the petitioner from challenging the paternity of his child.

9. In the above context, we were able to come across a

persuasive precedent rendered by the Pennsylvania Supreme Court in

T.E.B. v. C.A.B. v. P.D.K. Jr.1, which has a bearing on the facts of the

instant case. The facts of the American case make interesting reading.

Essentially the question was whether a man who has held out a child as

74 A.3d 170

his own would be precluded from challenging the paternity of the child

at a later time. Applying the doctrine of Paternity by Estoppel, which is

based on the concept of equitable estoppel, it was held that once a

man, by his conduct, has held out to be a child's father, he will not be

permitted to deny the child's parentage. The above judgment was

passed relying on an earlier judgment in Brinkley v. King2 wherein it

was held that "estoppel is based on the public policy that children

should be secure in knowing who their parents are. If a certain person

has acted as the parent and bonded with the child, the child should not

be required to suffer the potentially damaging trauma that may come

from being told that the father he had known all his life is not in fact his

father".

10. Furthermore, Article 8 of the Convention on the Rights of the

Child states that "State Parties undertake to respect the right of the

child to preserve his or her identity, including nationality, name and

family relations as recognised by law without unlawful interference". It

is thus a matter of public policy to ensure that the familial identity of a

child is preserved. The Supreme Court in Aparna Ajinkya Firodia v.

2013 Pa. Super. 211

Ajinkya Arun Firodia3 relying on Article 8 of the Convention on the

Rights of the Child held that long-accepted notions about a child's

parentage must not be frivolously challenged before Courts of Law.

11. We are satisfied that the order passed by the Family Court

is reasonable and does not warrant any interference.

This petition is dismissed.

Sd/-

RAJA VIJAYARAGHAVAN V, JUDGE

Sd/-

P.M.MANOJ JUDGE IAP

2023 SCC OnLine SC 161

APPENDIX OF OP (FC) 284/2024

PETITIONER'S EXHIBITS:

Exhibit P1 TRUE COPY OF THE O.P.NO.1530 OF 2022 FILED BY THE PETITIONER AND PENDING BEFORE THE FAMILY COURT, KANNUR DATED 01.10.2022.

Exhibit P2 TRUE COPY OF THE COUNTER SUBMITTED BY THE RESPONDENT IN O.P.NO.1530 OF 2022 BEFORE THE FAMILY COURT, KANNUR.

Exhibit P2(a) TRUE COPY OF THE AGREEMENT DATED 21.04.2021 EXECUTED BETWEEN THE PETITIONER AND THE MOTHER OF THE RESPONDENT.

Exhibit P3                A TRUE COPY OF THE I.A.NO.1 OF 2023 IN
                          O.P.NO.1530 OF 2022 FILED BY THE PETITIONER
                          BEFORE THE FAMILY COURT, KANNUR

Exhibit P4                TRUE COPY OF THE COUNTER IN I.A.NO.1 OF
                          2023 IN O.P.NO.1530 OF 2022 FILED BY THE
                          RESPONDENT BEFORE THE FAMILY COURT, KANNUR.

Exhibit P5                TRUE COPY OF THE ORDER DATED 10.01.2024 IN
                          I.A.NO.1 OF 2023 IN O.P.NO.1530 OF 2022 ON
                          THE FILES OF FAMILY COURT, KANNUR