IN THE HIGH COURT OF KERALA AT ERNAKULAM
RPFC.No. 256 of 2007()
1. ABDUL RAHMAN C.A., S/O. AHAMMAD,
... Petitioner
Vs
1. ZUHRA, AGED 35 YEARS,
... Respondent
2. SAFARIYA, D/O. ZUHRA,
3. SAINUL ABID, AGED 15 YEARS,
4. MOHAMMED HANEEFA, AGED 13 YEARS,
5. STATE OF KERALA,
For Petitioner :SRI.K.ANAND
For Respondent :SRI.K.V.SOHAN
The Hon'ble MR. Justice R.BASANT
Dated :06/11/2008
O R D E R
R. BASANT, J.
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R.P.F.C.No. 256 of 2007
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Dated this the 6th day of November, 2008
O R D E R
This revision petition really raises the vexing problem of
the helpless and hapless children on the one hand and their
father, a person who is tested HIV positive on the other.
Paternity is admitted. There are three minor children/claimants.
The mother of the minor children had also claimed maintenance.
Her claims stand rejected. There is no challenge against that part
of the order.
2. The claimants were granted maintenance at the rate of
Rs.1,000/- p.m. from the date of the order. When the matter
came up before this Court, as per order dt. 22.6.2007 interim
directions were issued obliging the petitioner to pay a total
amount of Rs.1,000/- p.m.
3. It is contended that the petitioner/father is unable to do
any work and that is the reason why he is not able to maintain his
children. He does not have sufficient means. He is a tested HIV
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positive and it is asserted that he is not able to engage himself in any
income earning activity because of his disease.
4. The claimants contend that it is not a case where he is not
having sufficient means. Though tested HIV positive, he is in a
position to work and earn his livelihood. There is also a suggestion
that he is a very affluent person as can be seen from the fact that while
the marriage with the mother of the claimants was in force, he had
married twice again and had begotten children in such marriage. No
tangible evidence of any income from property for the petitioner is
produced. Similarly the petitioner has not produced any tangible data
having a bearing on the question whether he is at present able to or
unable to work and earn his livelihood. I am, in these circumstances,
satisfied that the parties must be given a further opportunity to adduce
all such further evidence that they want to adduce. The claimants can
certainly attempt to introduce evidence to show that the petitioner has
properties. The petitioner, in turn, can adduce evidence, that he has
any such ailments which now affect his capacity to work. Direction
shall be issued to the Family Court to dispose of the matter afresh
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3
expeditiously. The Family Court can of course make a note of the
impression gathered by the Court about the physical condition of the
petitioner.
5. Until the matter is finally disposed of, as directed at the time
of admission on 22.6.2007, an amount at the rate of Rs.1,000/- p.m.
shall be paid towards the interim maintenance of the claimants. I make
it clear that when the matter is disposed of afresh, appropriate orders
shall be passed by the Family Court on the basis of the evidence,
including further evidence that is placed before court.
6. In the result:
a) This R.P.F.C. is allowed in part.
b) The impugned order is set aside.
c) The learned Judge of the Family Court is directed to dispose
of the matter afresh after giving both sides opportunity to adduce all
further evidence which they want to adduce in support of their
contentions.
d) The parties shall appear before the learned Judge of the
Family Court on 1.12.2008. The learned Judge shall dispose of the
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matter again as expeditiously as possible, at any rate, within a period of
45 days from 1.12.2008.
e) Any amount in deposit shall forthwith be released to the
claimants, who shall be entitled to enforce the claim for all amounts as
per order dt. 22.6.2007, which shall continue as interim direction for
payment of maintenance till disposal of the revision petition.
(R. BASANT)
Judge
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