Point of Law: Declaration of legitimacy can be granted only when there is admitted or proved matrimonial relationship.

JUDGMENT :

1. This Original Petition is filed by the petitioner under Article 227 of the Constitution of India challenging an order passed by Family Court, Ernakulam on 07.05.2021 in M.P.No.254 A/2020. The above referred M.P. was filed by the petitioners in M.C.No.100/2020 pending on the files of Family Court, Ernakulam seeking for a direction to the respondent to undergo DNA test for proving the paternity of the 2nd petitioner and to get it approved by the court that the former is her father. The parties to this Original Petition will hereinafter be referred to as the petitioners and the respondent in accordance with their status in the M.C. as well as M.P.

2. The 1st petitioner is one Mrs.Aliesha, W/o. V.O.Mathew, residing at Sunratan, Plot 83, Flat No.301, Sector 10-A, Vashi, Navi Mumbai. The 2nd petitioner is her minor daughter born to the respondent during the long cohabitation of the 1st petitioner with him.

3. 1st petitioner and respondent fell in love and lived together as husband and wife. The respondent visited the 1st petitioner at Bombay and stayed with her as husband and wife. They also resided together in a house taken on rent at Vytila, Ernakulam and a Flat namely Star Homes at Ernakulam and during the stay together, 1st petitioner got conceived from the respondent. The respondent when informed about, sent the 1st petitioner to her house at Bombay. Respondent contacted the 1st petitioner over telephone and promised her that he will marry her and also look after the child in her womb. Respondent used to send money for her expenses and treatment. Respondent visited the 1st petitioner frequently at Bombay and continue to live as husband and wife. When the time for delivery reached, the respondent insisted the 1st petitioner to come down to Kollam so that he could attend her in the hospital daily from Cherthala.

4. In obedience to the instruction of the respondent, 1st petitioner came to Kollam and started residing in a rented house at Thanikkamukku, Anchalumoodu, Kollam. The 1st petitioner was admitted at Nani Memorial Nursing Home, Kollam and there she delivered the 2nd petitioner. During her stay at Kollam, the 1st petitioner came to know that the respondent married another lady and started their stay at Cherthala. Then the 1st petitioner contacted the respondent over Telephone and the latter promised her that he will look after herself and the child as earlier and threatened that if anyone comes to know about their relationship, he would not maintain them anymore.

5. According to the 1st petitioner due to her long cohabitation with the respondent, she gained the status as a wife and the marriage solemnised thereafter with another lady is ‘void ab initio’ and that lady cannot obtain the status as wife of the respondent.

6. Even after the above differences respondent cohabited with the 1st petitioner at Thanikkamukku. 1st birth anniversary of the 2nd petitioner was celebrated in the house and the respondent was present and expenses for the celebration were met with by him. Respondent had promised to look after herself and the child till his death.

7. Till the child attained 1½ years, petitioners stayed in a rented house at Kollam and the rent was paid by him. Thereafter as advised, the petitioners went to Bombay and started living there. During that time also the monthly maintenance allowance was either sent to the account of the 1st petitioner or directly paid to her during his visit there by the respondent. 2nd petitioner was admitted in a play school and then at Avelone Height International School at Navi Mumbai and expenses were met with by the respondent himself. During vacation, the petitioners and the respondent stayed together at Ernakulam, Thiruvananthapuarm, Goa and other places. 1st petitioner insisted the respondent to make some permanent arrangement to secure the life of the petitioners. Respondent then agreed to buy a flat in the name of he petitioners using his own money and also to take an insurance poli