Dismissed

Alex John, v. Sheena Alex

Kerala HC12 Dec 2019OP (FC)/736/2019

Case brief

AI extract

What is this about?

Petitioner sought writ under Article 227 to quash Family Court order refusing leave to amend pleadings to disclaim paternity of some children. High Court dismissed petition, holding amendment totally inconsistent with original petition and that petitioner could not approbate and reprobate.

What did the court decide?

Original petition for quashing the Family Court order is dismissed; Family Court order stands affirmed.

Alex John, Vs Sheena Alex — Matrimonial and Divorce | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE K.HARILAL

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THE HONOURABLE MR.JUSTICE C.S.DIAS

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THURSDAY, THE 12TH DAY OF DECEMBER 2019 / 21ST AGRAHAYANA, 1941

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OP (FC).No.736 OF 2019

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AGAINST THE ORDER/JUDGMENT IN OP 287/2017 OF FAMILY COURT, MAVELIKKARA

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PETITIONER:

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ALEX JOHN, AGED 42 YEARS

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S/O.JOHN, PUTHUPALLY COTTAGE, PADINJATTUM MURI, NIRANAM P.O., NIRANAM VILLAGE, THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT, PIN- 689121.

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BY ADVS. SRI.JOSEPH GEORGE SMT.NICEY A. MENON SRI.P.A.REJIMON

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RESPONDENTS:

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1 SHEENA ALEX, AGED 36 YEARS W/O.ALEX JOHN, RESIDING AT MOOLACKAL SHIJU BHAVANAM, PADINJATTUM MURI, NIRANAM P.O., NIRANAM VILLAGE, THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT, PIN- 689621.

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2 C.M.MATHEW, AGED 70 YEARS MOOLACKAL SHIJU BHAVANAM, PADINJATTUM MURI, NIRANAM P.O., NIRANAM VILLAGE, THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT, PIN- 689621.

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3 SOSAMMA MATHEW, AGED 68 YEARS MOOLACKAL SHIJU BHAVANAM, PADINJATTUM MURI, NIRANAM P.O., NIRANAM VILLAGE, THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT, PIN- 689621.

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THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 12.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP (FC).No.736 OF 2019 2

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JUDGMENT

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Dated this the 12th day of December 2019

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C.S.Dias, J

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This original petition is filed Article 227 of the Constitution of India to set aside Ext.P3 order passed by the Family Court, Mavelikkara, refusing leave to the petitioner to amend the pleadings in O.P.No.287/2017. The petitioner has filed O.P.No.287/2017 seeking to declare that he is the legal guardian of the four daughters.

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According to the petitioner, during the mediation talk that was held on 13.08.2019, the first respondent openly declared that the petitioner is not the

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OP (FC).No.736 OF 2019 3

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father of the triplet children born in the

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second confinement. Accordingly the petitioner filed Ext.P1 application seeking leave to amend the pleadings for the purpose of declaring that he is only the father of the eldest child and not the

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younger triplet children.

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Application was opposed by the first respondent, who filed a detailed

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written objection. She contended that petitioner has some physical deformities and, therefore, all the children were born through artificial insemination, which can be substantiated by medical records.

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The Family Court, by Ext.P3 impugned

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order dismissed the petitioner's application, holding that the children cannot be branded to be illegitimate on the

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OP (FC).No.736 OF 2019 4

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plea sought to be amended and inserted by the petitioner in the original petition.

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It is assailing Ext.P3 order that

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this original petition is filed.

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Heard Sri.Joseph George, learned

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counsel for the petitioner.

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The learned counsel for the

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petitioner contended that the Family Court had passed Ext.P3 order, on the strength of

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photocopies of certain documents which were not marked by the Family Court and that the

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petitioner was not given a copy of the documents. The Family Court has arrived at a wrong conclusion, and therefore Ext.P3

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order is erroneous and liable to be set aside.

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Having considered the pleadings and

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exhibits on record and after hearing the

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OP (FC).No.736 OF 2019 5

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learned counsel for the petitioner, we are of the considered opinion that the amendment sought to be incorporated by the petitioner can never be permitted, because

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it is totally inconsistent with the pleadings in original petition. The petitioner has categorically admitted in the original petition that he is the father

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of four children. It was on the said

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assertion that he sought for a declaration

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that he is the legal guardian of the children. Subsequently, merely on the allegation that the first respondent had

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made an open declaration that the

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petitioner is not the father, he has sought leave to amend the pleadings and is now desirous of only declaring him as the legal guardian of the eldest child.

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OP (FC).No.736 OF 2019 6

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Section 112 of the Evidence Act,

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1872, stares at the petitioner. The said provision states it is conclusive proof that any child born in a wedlock is the

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legitimate child of the parents. The entire onus of proof is on the petitioner to prove

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that he had no access to the first respondent during the relevant period. The petitioner has no such pleading. The only allegation pleaded by the petitioner, to

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change his mind and seek leave for

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amendment is that the first respondent made an open proclamation that he is not the

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father of the younger triplet children.

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We are unable to accept the

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assertion of the petitioner in the affidavit accompanying the application, because the present stand is totally

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OP (FC).No.736 OF 2019 7

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contradictory to the earlier stand. The petitioner cannot be permitted to approbate and reprobate his pleadings, as per his whims and caprice, in a civil proceeding. The amendment if permitted would change the nature, fabric and structure of the original petition.

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The learned counsel for the petitioner also contended before us that the petitioner be given an opportunity to challenge the authenticity and genuineness of the documents, which were relied on by the first respondent at the time of hearing of the application. We make it clear that

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the Family Court shall provide the

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petitioner an opportunity to challenge the authenticity and genuineness of the documents which were purportedly produced

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OP (FC).No.736 OF 2019 8

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and relied by the first respondent, at the time of considering the application.

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We do not find any illegality, irregularity or perversity in Ext.P3 order passed by the Family Court, warranting the interference of this Court in exercise of its supervisory power as enshrined under under Article 227 of the Constitution of India. The original petition is devoid any merits and is consequentially dismissed.

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Sd/-

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K.HARILAL JUDGE Sd/C.S.DIAS JUDGE

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ACM/18.12.2018

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OP (FC).No.736 OF 2019 9

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE PHOTOCOPY OF I.A.NO.2793/2019 IN O.P. 287/2017 OF THE HON'BLE FAMILY COURT, MAVELIKKARA.

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EXHIBIT P2 TRUE PHOTOCOPY OF THE OBJECTION FILED BY THE 1ST RESPONDENT IN I.A 2793/2019 IN O.P. 287/2017 OF THE HON'BLE FAMILY COURT, MAVELIKKARA.

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EXHIBIT P3 TRUE PHOTOCOPY OF ORDER DATED 15.11.2019 IN I.A. 2793/2019 IN O.P 287/2017 OF THE HON'BLE FAMILY COURT, MAVELIKKARA.

Alex John, v. Sheena Alex

Case brief

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Alex John, v. Sheena Alex

Case brief

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