IN THE HIGH COURT OF KERALA AT ERNAKULAM
RPFC.No. 454 of 2007()
1. BIJI VARGHESE, S/O.VARGHESE,
... Petitioner
Vs
1. SINDHU, D/O.PATHROSE,
... Respondent
2. BRIJIT, MINOR, REPRESENTED BY THE
3. STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.JOHNSON P.JOHN
For Respondent :SRI.GEORGEKUTTY MATHEW
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :16/03/2010
O R D E R
M.N. KRISHNAN, J.
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R.P.(F.C).No.454 OF 2007
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Dated this the 16th day of March, 2010.
O R D E R
This revision is preferred against the order of the
Family Court, Thodupuzha in M.C.No.81/2006. The
maintenance petitioners moved an application against the
respondent claiming maintenance to the 2nd petitioner as
the child of the respondent and the family court granted
maintenance at the rate of Rs.1,250/= per month. It is against
that decision, the revision is preferred by the husband.
2. Heard. Admittedly there is no marriage between the
first petitioner and the respondent. According to the first
petitioner in the MC, she had come to the house of the
respondent to look after the young children of his brother
and during her stay there, the respondent had sexual act
with her with her consent as a result of which, she became
pregnant and gave birth to the second petitioner on
5.9.2004. On the other hand, the respondent would contend
that though she was staying in the house of the respondent,
there was no such relationship between the two and he cannot
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be conferred the paternity of the child.
3. The evidence available in the matter is the evidence
of PW1 and CPW1. The first petitioner moved an application
for the conduct of DNA test and it was allowed by the court.
But the respondent in the MC did not co-operate and
therefore, it could not be conducted. If the respondent was
so sure that he is not the father of the child, what
prevented him from going for a DNA test is a big question
that has to be considered in the backdrop of the evidence
adduced by PW1. I state so only for the reason that it is not
on the basis of an adverse inference the finding is arrived
at, but it is arrived at on the basis of the conduct of the
revision petitioner and also in the backdrop of the evidence of
PW1. The child was born on 5.9.2004 and most probably
that is why the revision petitioner wanted to curtail the
period of stay of the lady up to 15.11.2003 onwards. But the
lady would contend that she was there up to 15.12.2003.
PW1 had deposed that during her stay in the house there
had been several sexual acts and even she was taken to a
lodge and she had been subjected to sexual intercourse. A
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child is born and the father of the child is shown as the
revision petitioner.
4. So, the factum that the lady was staying in the house
of the respondent, non co-operation of the revision petitioner
to go for a DNA test as well as the size of the family house
all weighed with the family court to arrive at a decision
that preponderance of probability weigh with the version of
PW1 rather than CPW1. There is no mis-appreciation of
evidence or misapplication of law which requires interference
in the revisional jurisdiction on the said finding of fact.
5. Now turning to the quantum. It has come out in
cross examination that there is one acre of land in the name
of the mother. There is a land phone, mobile phone and a
two wheeler driving licence for the person. This man had
married in 2006 and he is staying comfortably with the
wife. The child at the time of filing of the application is two
years. Taking into consideration all these facts, I am inclined
to show slight leniency by reducing the quantum from
Rs.1,250 to Rs.1,000/=.
6. Therefore the revision is disposed of by modifying
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the order of maintenance per month from Rs.1,250/= to
Rs.1,000/= payable from the date of petition and it shall be
received by the mother of the child.
Disposed of accordingly.
M.N. KRISHNAN, JUDGE
cl
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