Prayer: Writ Petition filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Certiorarified Mandamus calling for the records relating to the impugned order passed by the first respondent in Na.Ka.No.H1/7025/2015, dated 29.09.2017 and quash the same as illegal and consequently to direct the Respondents to issue the birth certificate of minor T.Haresha by altering his father name as P.Rajavelpandian.
For Petitioner :Mr.I.Velpradeep For Respondents :Mr.N.Dilip Kumar http://www.judis.nic.in 2 O RD E R Heard the learned counsel on either side.
2.One K.Thirumalai Murugan got married to one T.Ganga Parameswari on 09.12.2002 and minor Haresha (male) was born to Ganga Parameswari during the subsistence of the marital relationship between Thirumalai Murugan and Ganga Parameswari. While so, the said Thirumalai Murugan filed O.S.No.196 of 2013 before the District Munsif Court, Sivagiri for declaring that Haresha is not his legal heir and that he is the legal heir of Ganga Parameswari and Rajavelpandian, the writ petitioner herein. In other words, Thirumalai Murugan wants to disown his paternity in respect of minor Haresha. The matter was referred to lok adalat. In the lok adalat, the parties arrived at an amicable settlement. Ganga Parameswari and Rajavelpandian admitted before the lok adalat that Haresha was the biological son of Rajavelpandian born through Ganga Parameswari and that Thirumalai Murugan was not the actual father. The compromise arrived at among the parties was duly recorded and an award was passed in terms of the said compromise.
3.On the strength of the said lok adalat award, Rajavelpandian filed an application before the Rajapalayam Municipality for deleting the name of Thirumalai Murugan in the birth certificate of minor Haresha. Since the said http://www.judis.nic.in 3 request was declined by the first respondent, by order dated 29.07.2017, the writ petition came to be filed.
4.There is no basic dispute on the facts set out above. The only question that arises is whether the first respondent is obliged to act in terms of the aforesaid lok adalat award dated 16.10.2015. It is not in dispute that Thirumalai Murugan got married to Ganga Parameswari on 09.12.2002 and that the said Thirumalai Murugan filed H.M.O.P.No.27 of 2013 before the Sub Court, Sankarankovil, for dissolving his marriage with Ganga Parameswari and the said Ganga Parameswari remained exparte and that is how, the marriage was dissolved on 12.06.2013. Since it is admitted that the marital relationship was dissolved between Thirumalai Murugan and Ganga Parameswari only on 12.06.2013, one has to come to the conclusion that it was very much in subsistence till then. Minor Haresha born to Ganga Parameswari on 29.05.2012. Thus, he was born to Ganga Parameswari when her marital relationship with Thirumalai Murugan was very much in subsistence. Therefore, the conclusive presumption laid down in
Section 112 of Indian Evidence Act, 1872, will come into play.
Section 112 of the Act reads as under:-
“1 1 2 . B i r t h d u r i n g m a r r i a g e , c o n c l u s i v e p r o o f o f l e g it i m a c y : T h e fa ct th at a n y p e r s o n w a s b o r n d urin g th e c o ntin u a n c e o f a v alid m a rri a g e b e t w e e n hi s m o t h e r a n d a n y m a n , http://www.judis.nic.in o r wit hin t w o h u n d r e d a n d e i g ht y d a y s aft e r it s di s s ol uti o n , th e 4 m o t h e r r e m ai nin g u n-m a rri e d , s h all b e c o n cl u si v e p r o o f th at h e i s th e l e giti m at e s o n o f th at m a n , u nl e s s it c a n b e s h o w n th at th e p arti e s t o th e m a rri a g e h a d n o a c c e s s t o e a c h ot h e r at a n y ti m e w h e n h e c o ul d h a v e b e e n b e g o tt e n .”
5.I am surprised to note that the lok adalat award has been so casually passed. The result of the said award is to bastandise the child in question.
Therefore, the first respondent has rightly taken the stand that he will not take cognizance of the compromise between the parties. I find no ground to interfere with the impugned order and the order impugned in this writ petition is sustained. The writ petition shall stand dismissed. Since the issue concerns the interest of a minor child, the Registry is directed to suppress the names of the parties. No costs. Consequently, connected Miscellaneous Petition is also dismissed.
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1.The Commissioner, Rajapalayam Municipality, Rajapalayam, Virudhunagar District.
2.The Registrar of Birth and Death, Rajapalayam Municipality, Rajapalayam, Virudhunagar District.
http://www.judis.nic.in 6 G . R. S WAMIN AT HA N , J .
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