High Court Kerala High Court

Biji Varghese vs Sindhu on 16 March, 2010

Kerala High Court
Biji Varghese vs Sindhu on 16 March, 2010
       

  

  

 
 
  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.
                   ...........................................
                   R.P.(F.C).No.454 OF 2007
                  .............................................
             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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R.P.(F.C).No.454 OF 2007

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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