IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 2991 of 2009()
1. CHODONVEETTIL NARAYANAN, S/O.GOVINDAN,
... Petitioner
Vs
1. P.ARUNKUMAR (MINOR), AGED 12 YEARS,
... Respondent
2. STATE OF KERALA REPRESENTED BY
For Petitioner :SRI.V.RAMKUMAR NAMBIAR
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :19/10/2009
O R D E R
M.SASIDHARAN NAMBIAR,J.
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CRL.M.C.NO. 2991 OF 2009
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Dated 19th October 2009
O R D E R
Petitioner is the counter petitioner and
first respondent the petitioner in M.C.55/1998 on the
file of Judicial First Class Magistrate-II, Kannur.
First respondent filed petition before the learned
Magistrate claiming maintenance under Section 125 of
Code of Criminal Procedure contending that his mother
had married one Haridasan, but they separated in 1995
and petitioner was immediate neighbour of the mother
of first respondent and petitioner assured the mother
of first respondent that he would marry her the
moment she gets divorce and on the inducement and
believing the said representation, petitioner had
continuous sexual intercourse with the mother of
first respondent which lead to the birth of first
respondent on 23/8/1997. When the pregnancy of first
respondent was revealed to the family members, there
was a mediation organised at Kattiattoor Grama
Panchayat Hall in the presence of panchayat member
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Sri.K.Nanu and in the mediation, petitioner had
acknowledged paternity of the child and expressed
his willingness to maintain him and an agreement
was also entered into in the presence of the
mediators and later petitioner failed to take care
of the mother or marry her and even refused to
pay maintenance. In such circumstances, minor child
had sought maintenance at the rate of Rs.10,000/-
per month.
2. Petitioner resisted the claim
contending that he is not the father of first
respondent and he never assured the mother of the
first respondent that he will marry her and he
never had sexual intercourse with her and he is
not liable to pay any maintenance. It is contended
that first respondent was born to her in her
wedlock with Haridasan and petitioner is a
married man and his marriage was solemnised on
24/5/1998 and hence, he is not liable to pay
maintenance.
3. Before the learned Magistrate four
witnesses including mother and previous husband of
the mother were examined and two exhibits were
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marked. On the side of the petitioner, he was
examined as CPW1. Learned Magistrate on the
evidence found that though PW4 was the former
husband of the mother of first respondent, from
1995 onwards they were living separately and non
access of PW4 to the mother was conclusively
established and therefore, the bar provided under
Section 112 of the Indian Evidence Act is not
applicable. Accepting the evidence of mother as
PW1 and as well as her brother PW2 and panchayat
member, who was examined as PW3 and taking note of
the refusal of the petitioner to undergo DNA test,
learned Magistrate found that petitioner is the
father of the minor child. He was directed to pay
monthly maintenance of Rs.400/-. Petitioner
challenged that order before the Sessions court,
Thalassery in Crl.R.P.15/2002. Learned Additional
Sessions Judge re-appreciated the entire evidence
and confirmed the findings of the learned
Magistrate and dismissed the revision. As no second
revision is permissible, this petition is filed
under Section 482 of Code of Criminal Procedure
challenging Annexure-A4 order of learned Magistrate
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and Annexure-A5 order of learned Sessions Judge.
4. Learned counsel appearing for the
petitioner was heard. Learned counsel argued that
evidence of PW1, mother of the child establishes
that she used to meet PW4, her former husband and
in such circumstances, finding about non access is
not sustainable. It is found that when there was a
subsisting legal marriage and non access was not
proved, courts below should have found that first
respondent is the son of PW4 born to PW1. Learned
counsel also argued that additional documents
produced before this court namely, copy of the
admission form of first respondent submitted to the
school dated 2/6/2003 does not show petitioner as
the father of the child and in such circumstances,
it is to be found that petitioner is not the
father.
5. On hearing the learned counsel and
going through Annexures-A4 and A5 judgments of the
learned Magistrate and learned Sessions Judge, I
find no reason to interfere with the orders passed
by the learned Magistrate or the Additional
Sessions Judge, invoking extra ordinary powers of
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this court under Section 482 of Code of Criminal
Procedure. True, so long as a legal marriage
subsists, in view of Section 112 of Evidence Act,
first respondent mother cannot claim that father of
the child is not her husband but somebody else.
But, if non access is proved, Section 112 will not
be a bar. That exactly is the case herein. Learned
Magistrate and learned Sessions Judge accepted the
evidence of the mother who was examined as PW1 and
her previous husband who was examined as PW4 and
found that there was no connection between them
during the period when first respondent was born or
begotten and evidence establish that there was
complete non access. Accepting the evidence of
Pws.1 and 2, it was found that during that period
petitioner was having sexual relationship with the
mother of first respondent and first respondent was
born in that relationship. Additional documents
sought to be produced by the petitioner does not
establish that petitioner is not father of the
child. At best, it could be said that in the
columns where details of the parents are to be
shown, for getting admission to first respondent
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to the school, mother who had signed the
application form did not show the name of the
petitioner as father. But she has not shown any
other name as the father. Therefore, failure to
show name of the father in the application form by
itself is not a ground to hold that child has no
father or that petitioner is not the father of
first respondent. Both trial Magistrate and
Additional Sessions Judge appreciated the evidence
in the proper perspective and correctly found that
petitioner is the father of first respondent. I
find no reason to differ with the findings or the
orders of the learned Sessions Judge.
Petition is dismissed.
M.SASIDHARAN NAMBIAR,
JUDGE.
uj.