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2024 Supreme(Ker) 478
IN THE HIGH COURT OF KERALA AT ERNAKULAM
RAJA VIJAYARAGHAVAN V., P.M. MANOJ, JJ.
A.J. Stephen, S/o. Joseph – Petitioner
Versus
Rosemariya, Represented By Next Friend Mother- Shani E.S., D/o. Sunny – Respondent
OP (FC) No. 284 Of 2024
Decided On : 23-05-2024
For the Petitioner: M. Sasindran, Satheeshan Alakkadan.
For the Respondent: Athul Babu, Sri. Pranoy K Kottaram.
IMPORTANT POINT
The doctrine of Paternity by Estoppel and the importance of preserving a child's familial identity as recognized by law and public policy.
Headnote:
DNA Test - Paternity Dispute - Section 151 of the CPC - Section 376 of the IPC - Article 227 of the Constitution of India - T.E.B. v. C.A.B. v. P.D.K. Jr., 74 A.3d 170 - Brinkley v. King, 2013 Pa. Super. 211 - Aparna Ajinkya Firodia v. Ajinkya Arun Firodia, 2023 SCC OnLine SC 161 - Article 8 of the Convention on the Rights of the Child
Fact of the Case:
The petitioner sought a declaration that he is not the father of the child based on doubts about paternity. The court found that the petitioner had previously entered into an agreement accepting paternity and had been paying maintenance to the child.
Finding of the Court:
The court concluded that the petitioner's conduct and previous agreement precluded him from challenging the paternity of the child. The court also referenced the doctrine of Paternity by Estoppel and the importance of preserving a child's familial identity.
Issues: Paternity dispute, application under Section 151 of the CPC, failure to file application under Order XXXII of the CPC, suppression of material facts, and the right of the child to preserve identity.
Ratio Decidendi: The court applied the doctrine of Paternity by Estoppel and referenced the importance of preserving a child's familial identity as recognized by law and public policy.
Final Decision: The petition seeking a declaration that the petitioner is not the biological father of the minor respondent was dismissed.
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
