IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF APRIL, 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR REGULAR FIRST APPEAL No.1043 OF 2018 BETWEEN Smt. N.Ashwini, W/o. G.Chetan, Aged about 34 years, R/a. No.302, 6th Main, Srinagar, Bengaluru-560050.
(By Sri. R.Kothwal, Advocate) AND 1. A.V.Ranganatha Swamy, S/o. Late Varadaraju, Aged about 42 years, R/a. No.306, 19th Main, Muneshwara Block, Bengaluru-560026.
2. G.Chetan, S/o. Gangadhara, Aged about 35 years, R/a. No.29, 14th Main, Indira Colony, Attiguppe, Vijayanagara II Stage, Bengaluru-560040.
(By Sri. Ravi Kiran, Advocate for R2, R1 – Served, unrepresented) …Appellant …Respondents This RFA is filed under Section 96 of CPC against the judgment and decree dated 26.02.2018 passed in O.S.No.3843/2017 on the file of the XXXI Additional City Civil and Sessions Judge, Bengaluru City (CCH-14), dismissing the suit for declaration.
This RFA coming on for admission, this day, the Court delivered the following :
JUDGMENT Heard the appellant’s counsel and the respondents’ counsel at the time of admission.
2. This appeal is filed by the plaintiff in O.S.No.3843/2017 on the file of 31st Addl. City Civil and Sessions Judge, Bengaluru. The gist of the pleadings is as follows:
The plaintiff’s marriage with 1st defendant was solemnized on 08.06.2000 and a male child viz., Master Likith was born to them in the said wedlock. Because of differences between the plaintiff and the 1st defendant, they could not live together and their marriage ended in a divorce granted by the Family Court in MC.No.2091/2010. After divorce the plaintiff married the 2nd defendant on 28.04.2013. It is stated that in the school records the name of one Nagaraj, father of the plaintiff is shown as the guardian of minor child Likith. On 21.09.2013, this Nagaraj died and therefore the plaintiff brought a suit seeking declaration that 2nd defendant is the father/guardian of her son Likith and for a direction to enter the name of 2nd defendant as the parent or guardian of her son.
3. The 1st defendant did not appear before the court.
The trial court recorded the oral evidence of the plaintiff who also produced 8 documents as per Ex.P.1 to P.8 and held that the 2nd defendant could not be declared as father of minor son of the plaintiff because the divorce between the plaintiff and the defendant did not result in severance of blood relationship between the 1st defendant and his son and therefore dismissed the suit.
4. Assailing the findings of the trial court, the learned counsel for the appellant argues that the minor child is being looked after by the plaintiff and her 2nd husband i.e., the 2nd defendant. In the school records, the name of Nagaraj was mentioned as guardian of the minor child and after his death, the name of the 2nd defendant is to be entered. He also submits that it is 2nd defendant who has been taking care of the child and he is entitled to be declared as father of the child. In support of his arguments he relies upon two judgments, one of the High Court of Punjab and Haryana at Chandigarh in Mohit Vs. Union of India and others (CWP.No.5862 of 2016) and another of the Madras High Court in the case of B.S.Deepa Vs. The Regional Passport Officer (WP.No.29105/2014).
5. The learned counsel for the 1st respondent submits that he has no objection for allowing the appeal.
6. On perusing the impugned judgment, I have to say that the trial court has not committed any error in dismissing the suit. It has rightly held that divorce between husband and wife does not sever the relationship between father and son. It may be true that in the school records the name of the plaintiff’s father Nagaraj might have been entered as the guardian of the child. Now after the death of Nagaraj, the plaintiff can herself act as guardian being the mother or if plaintiff wants her second husband to become guardian of her son, there is no impediment for him to approach the competent court seeking his appointment as guardian. In the case of Mohit (supra), it is held that the step-father of the petitioner is the legal guardian for all intents and purposes. So also in the case of B.S. Deepa (supra), it was ordered that passport should be issued to the daughter of the petitioner by indicating the name of R. Lakshmanan as the step-father in the column reserved for filling up the name of the father. Therefore it becomes clear that the 2nd defendant cannot be declared as father of the minor child Likith. His name can only be entered as step- father in all the school records. Only to this extent judgment of the trial court can be modified. Therefore the following :
ORDER Appeal is partly allowed. It is hereby directed that the name of the 2nd defendant shall be written as step-father in all the school records of the minor child Likith.
Sd/- JUDGE sd