IN THE HIGH COURT OF KERALA AT ERNAKULAM
RPFC.No. 60 of 2004()
1. ANUMON, 6 YEARS (MINOR) REPRESENTED BY
... Petitioner
Vs
1. KICHEN ALIAS RADHAKRISHNAN, STATE BANK
... Respondent
For Petitioner :SMT.K.V.BHADRA KUMARI
For Respondent :SRI.K.GOPALAKRISHNA KURUP
The Hon'ble MR. Justice R.BASANT
Dated :22/10/2008
O R D E R
R. BASANT, J.
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R.P.(FC) No. 60 of 2004
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Dated this the 22nd day of October, 2008
ORDER
This R.P.(FC) is filed by the claimant – an illegitimate
child, born to a unwed mother who was in her teens when she
was impregnated. The respondent/herein is a neighbour – a
married man with children. He was employed as a sweeper in
the State Bank of Travancore, Treasury Branch, Kottayam,
allegedly earning Rs.3,500/- per month. It was alleged that
the hapless mother of the claimant was raped by the
respondent and in such relationship the claimant/child was
born. For the said alleged act of rape, the respondent has
already been convicted by a criminal court and he is now
undergoing imprisonment in that case, it is submitted and
conceded. The respondent had denied the said allegation of
rape and paternity. On the side of the claimant/child, two
witnesses, including its mother, were examined as P.Ws.1 and
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2. Exts.A1 to A3 were marked on the side of the claimant. The
respondent examined himself as R.W.1. There was no other
evidence adduced. It is relevant to observe that though the
claimant offered to undergo DNA test, the respondent adamantly
refused to undergo such test.
2. The learned Judge of the Family Court, on an anxious
consideration of all the relevant inputs, came to the conclusion
that it was safe to place reliance on the evidence tendered by the
claimant to come to the conclusion that the respondent is the
father of the claimant/minor child. Accordingly, the learned
Judge proceeded to pass the impugned order.
3. The respondent has not chosen to challenge the order.
No revision has been preferred against the finding that he is the
father of the claimant. The claimant/child has come before this
Court through her grandmother to assail the quantum fixed as
also the direction that maintenance is liable to be paid only from
the date of the order and not from the date of the petition. The
claimant is represented by her grandmother. When the claim
was filed, the mother of the claimant was a minor.
4. Only two questions arise for consideration now. They
are: (1) Does the quantum of maintenance awarded deserve
upward modification? (2) Whether the direction that
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maintenance need be paid only from the date of the order
warrants revisional interference?
5. The petition was filed in 1998. The order was passed
only in 2003. There is no contention whatsoever that any
amount had been paid during the pendency of the proceedings
towards maintenance. During the relevant period, undisputedly
the respondent was employed as sweeper in the State Bank of
Travancore, Treasury Branch, Kottayam. He had a stable
employment and income. Of course, the materials show that his
wife and two children also had to be maintained. The materials
presently available further show that the respondent is
undergoing imprisonment in prison. Taking all the relevant
circumstances into account, I am of opinion that the quantum of
maintenance need not be enhanced now. But I clarify that the
quantum of maintenance must be reckoned as fixed on the basis
of the state of affairs prevailing in 1998 – the date of the claim. I
do further observe that as soon as the respondent comes out of
prison, the petitioner/claimant child shall be at liberty to claim
enhancement of maintenance which claim must be considered on
merits and on the basis of the evidence that shall be placed
before court by the Family Court and appropriate decision taken.
6. That leaves me with the contention that the
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maintenance must have been ordered from the date of the
petition and not from the date of the order. On this aspect,
Sec.125(2) Cr.P.C. is relevant. I extract the same below:
“125. Order for maintenance of
wives, children and parents.– (1)
x x x x x x x
(2) Any such allowance for the
maintenance or interim maintenance and
expenses for proceeding shall be payable
from the date of the order, or, if so ordered,
from the date of the application for
maintenance or interim maintenance and
expenses of proceeding, as the case may
be.”
(emphasis supplied)
7. The order is to take effect from the date of the order or
if so ordered from the date of the application for maintenance.
The question is whether the Family Court ought to have ordered
maintenance from the date of the petition. The law confers a
discretion on the court to direct payment of maintenance under
Sec.125 Cr.P.C. either from the date of the order or from the
date of the petition. All discretions conferred on courts must
be exercised judicially and judiciously taking note of all the
relevant circumstances. In a case where the liability is
established and there is no contention that any amount has been
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paid during the pendency of the proceedings, I find no reason
why such direction for payment should not take effect from the
date of the petition unless satisfactory reasons are there. Where
liability to pay maintenance is proved or undisputed and no
payment is made towards such liability during the pendency of
the proceedings, every court worth its salt exercising the
discretion must exercise such discretion in favour of the claimant
unless there be satisfactory reasons in the facts of a given case
to deny such maintenance from the date of the petition. No
such circumstances are shown to exist in this case. Admittedly,
the respondent was having stable employment and income
during the relevant period. That he has not paid the amount
promptly cannot deliver any advantage to him. If the discretion
is not exercised in favour of the claimant, there is always the
possibility of recalcitrant respondents attempting to prolong and
protract the proceedings and thereby attempting to gain
pecuniary advantage. The petition has been pending for an
inordinately long period of 5 years before the Family Court. In
any view of the matter, I am satisfied that there is no justifiable
ground to exercise the discretion against the claimant and in
favour of the respondent. I am satisfied that the gross error
committed in the exercise of discretion by the Family Court
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which definitely has resulted in miscarriage of justice deserves
to be corrected by invoking the revisional jurisdiction of
superintendence and correction.
8. In the result:
(a) This RP(FC) is allowed in part.
(b) It is directed that the maintenance under the impugned
order is liable to be paid from the date of the petition (17/10/97)
and not from the date of the order.
(c) It is observed that the amount of maintenance must be
deemed to have been fixed on the basis of the state of events on
the date of the petition and the claimant shall be entitled to
claim enhancement of maintenance as soon as the respondent
comes out of prison which claim will again have to be considered
on the basis of the pleadings and evidence in such claim and
appropriate orders passed.
Sd/-
(R. BASANT, JUDGE)
Nan/
//true copy//
P.S. to Judge
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