IN THE HIGH COURT OF KERALA AT ERNAKULAM
RP(Family Court) No. 96 of 2008()
1. GANGADHARAN @ KANNAN, AGED 39 YEARS
... Petitioner
Vs
1. GEETHA, AGED 25 YEARS, D/O.KRISHNANKUTTY
... Respondent
2. HARITHA, AGED 5 1/2 YEARS, D/O.GEETHA
3. HARI KRISHNAN, AGED 3 YEARS, S/O.GEETHA
For Petitioner :SRI.H.BADARUDDIN
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :04/04/2008
O R D E R
R. BASANT, J.
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R.P.F.C. No. 96 OF 2008
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Dated this the 4th day of April, 2008
O R D E R
The petitioner claims to be aggrieved by an order
passed by the Family Court under section 125 Cr.P.C. directing
payment of maintenance at the rate of Rs.1,000/- for the first
claimant wife and Rs.500/- each for the 2nd and 3rd claimants,
minor children aged 4= years and 2 years respectively.
2. That the marriage took place on 8.6.2000 is admitted.
Paternity of the 2nd petitioner/1st child is admitted. Paternity of
the 2nd child/3rd petitioner is disputed. That child was born on
30.11.03. The marriage was dissolved by an order of court on
5.10.05.
3. The claimants staked the claim for maintenance
asserting that they are unable to maintain themselves and that
the petitioner having sufficient means is neglecting and refusing
to pay maintenance to them. The claim was filed after the
divorce on 4.7.06. The petitioner raised the contention that the
first claimant wife was living in adultery when the marriage was
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subsisting and that even thereafter she is living in adultery. It
was contended that she is not hence entitled for maintenance.
As stated earlier, the 2nd claimant’s claim was not disputed.
There was only dispute about the quantum so far as the 2nd
claimant is concerned. Regarding the 3rd claimant/2nd child, it
was contended that the said child was not that of the
petitioner and that such child must have been begotten in the
illicit relationship of the first claimant wife with some other
persons.
4. Parties went to trial on these contentions and the
first claimant and the petitioner examined themselves as PW1
and CPW1. Exts.P1 to P3 were marked on the side of the
claimant. Exts.B1 to B3 were marked on the side of the
petitioner.
5. The learned judge of the Family Court, on an
anxious evaluation of all the relevant inputs, came to the
conclusion that all the claimants are entitled for maintenance.
Accordingly, the impugned order was passed directing
payment of maintenance at the rates mentioned above.
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6. The petitioner claims to be aggrieved by the
impugned order. What is his grievance? The learned
counsel for the petitioner, first of all, contends that the
direction to pay maintenance to the wife is not justified. She
having lived in adultery prior to the marriage and during the
currency of the marriage and continues to live in adultery after
the divorce, it is contended.
7. I am afraid this contention cannot legally stand. It
is well established that adultery is not a ground on which the
claim of a divorced wife can be resisted by a divorced
husband. The law on the point is considered in detail and
referred to in Sajeev Kumar Vs. P.Dhanya and another
[2008 (2) KHC 118]. The earlier binding precedent in
Valsarajan Vs. Saraswathy [2003 (2) KLT 548] was referred
to in detail. Adultery is not an indiscretion which a divorced
wife can ever commit against her former husband. The fact
that the woman lived in adultery while the marriage was
current or that she leads an immoral life after divorce are not
both sufficient grounds by themselves to resist the claim for
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maintenance of the divorced wife. The said contention must
hence fall to the ground.
8. We then come to the claim of the 2nd child/3rd
petitioner. The marriage took place on 8.6.2000. The divorce
took place on 5.10.05. The 3rd claimant/2nd child was born on
30.11.03. The presumption under section 112 of the
Evidence Act applies with vigour and unless non-access is
proved satisfactorily, the petitioner cannot avoid the liability to
pay maintenance. To substantiate his contention of non-
access, the petitioner examined only himself. The learned
judge of the Family Court held that non-access has not been
proved. Relying on Exts.P1 and P2 photographs wherein
admittedly the petitioner was standing along with his wife
carrying the said child whose paternity he now disputed, the
court came to the conclusion that the plea of non-access is
unacceptable. I find absolutely nothing wrong in the said
conclusion of the learned judge of the Family Court. Non-
access has not been proved in the manner in which it is
expected to be proved in the light of the conclusive
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presumption under section 112 of the Evidence Act which can
be rebutted only in the manner contemplated under section 4
of the Evidence Act read with section 112. Non-access has
been proved satisfactorily. The said contention cannot hence
help the petitioner.
9. The quantum of maintenance fixed is found to be
absolutely justified. Invoking the revisional jurisdiction of
superintendence and correction, I am not persuaded to
interfere with the quantum of maintenance fixed. The meagre
amounts of Rs.1,000/- for the wife and Rs.500/- each for the
children cannot be said to be excessive or disproportionate to
the means of the petitioner or the needs of the claimants.
That contention cannot also hence succeed.
10. Finally, it is contended that the petitioner may be
given an opportunity to adduce further evidence. What is the
evidence which the petitioner wants to adduce? According to
the petitioner, he wants to prove A1 agreement which has
been produced before this Court in revision and which was
not produced before the court below at any time. That is an
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agreement dated 1.7.99 whereunder the first claimant is
alleged to have entered into an agreement with another to live
with him. It is thereafter that the marriage between the
petitioner and the 1st claimant took place on 8.6.2000. In any
view of the matter, the agreement dated 1.7.99 cannot at all
help the petitioner to contend that the wife was living in
adultery during matrimony which commenced long later or
that the child born in that wedlock is illegitimate and not his.
In these circumstances, this contention cannot also succeed.
11. Additional evidence in revision cannot be received
unless compelling reasons are there. It cannot be received
as a matter of course. The document must be vitally relevant
and helpful to render the decision on the disputed question.
There must be valid and compelling reasons to explain non-
production before the court below at the appropriate stage.
Neither circumstances are available here.
12. Counsel contends that the petitioner will be put to
great hardship. If the petitioner has a contention still that the
2nd child/3rd claimant is not born to him and he is not the father
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of the child then the petitioner will have to seek his relief of
appropriate declaration from the civil court. If he feels
confident that he will be able to adduce appropriate evidence
to rebut the conclusive presumption under section 112, he
has that option under law. An order passed under section
125 Cr.P.C., it is trite may at worst only cast a shadow on the
disputed status of the parties and it is open to a party to go to
the civil court to get the shadow removed by seeking
appropriate declaration. If so advised, the petitioner has only
that final option before him.
13. Lastly and finally, it is prayed that some further time
may be granted to pay the amounts which have already
become payable. I do not intend to express any opinion on
this aspect. It is for the petitioner to approach the Family
Court and seek appropriate relief/accommodation, after
proving his bona fides after making substantial payments.
14. In the result, this R.P.F.C. is dismissed.
(R.BASANT, JUDGE)
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