IN THE HIGH COURT OF KERALA AT ERNAKULAM
RPFC.No. 24 of 2004()
1. KRISHNANKUTTY, S/O.MOOTHORAN,
... Petitioner
Vs
1. VINEETH, AGED ABOUT 6 YEARS
... Respondent
For Petitioner :SRI.SUNNY MATHEW
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :01/09/2008
O R D E R
R. BASANT, J.
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R.P.(FC) No. 24 of 2004
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Dated this the 1st day of September, 2008
ORDER
The petitioner in this case assails an order passed under
Sec.125 Cr.P.C. by the Family Court obliging him to pay
maintenance at the rate of Rs.250/- per mensem to the 2nd
claimant – allegedly his child, from the date of the petition i.e.,
7/5/96. The 1st claimant is the mother of the 2nd claimant. She
claimed maintenance for herself and her child from the
petitioner at the rate of Rs.500/- each per mensem.
2. There was no contention that there was any valid
marriage. It was contended that the petitioner and the 1st
claimant were neighbours and that they had intimacy. The
petitioner promising to marry the 1st claimant had started
residing in the house of the 1st claimant and they had sexual
intercourse. In such relationship, the 2nd claimant was born.
R.P.(FC) No. 24 of 2004 -: 2 :-
Initially, the relationship went well; but later, there were
disagreements and the petitioner allegedly went away. Long
later, the present claim under Sec.125 Cr.P.C. was filed.
3. The petitioner denied the allegations and averments in
the complaint. According to him, he had no relationship with
the claimant.
4. Parties went to trial on these contentions. The 1st
claimant/wife examined herself as P.W.1. She proved Exts.A1
and A2. The petitioner examined himself as R.W.1. No other
evidence was adduced.
5. The court below, on an anxious consideration of all the
rival contentions, came to the conclusion that the evidence of
P.W.1 could be safely accepted and acted upon. In coming to
this conclusion, the learned Judge of the Family Court took note
of Ext.A2 – extract of the birth certificate, which showed that as
early as on 10/6/92, about 4 years prior to the initiation of this
claim, the name of the petitioner was shown as father of the
child born to P.W.1. The court below, in these circumstances,
came to the conclusion that it was safe to accept and act upon
the oral evidence of P.W.1. Accordingly, the court below
proceeded to pass the impugned order.
R.P.(FC) No. 24 of 2004 -: 3 :-
6. The learned counsel for the petitioner has advanced
arguments. There is no appearance for the respondent. The
learned counsel for the petitioner has taken me through the
pleadings, evidence and the impugned order. The short question
that arises for determination is whether the conclusion of the
court below warrants revisional interference.
7. At the outset, I must take note of the nature, quality and
contours of the jurisdiction of this Court sitting as a court of
revision. It is by now trite that unless the findings of fact are
grossly erroneous or perverse and such findings result in failure/
miscarriage of justice, a court of revision must be slow to invoke
its revisional jurisdiction of superintendence and correction.
8. In the instant case, the crucial dispute is about the
paternity of the 2nd claimant. The evidence clearly shows that at
the time when the 2nd claimant was conceived by the 1st claimant,
there was possibility of access between the petitioner and the 1st
claimant. The petitioner did not advance any reason as to why
the 1st claimant was staking a false claim against him. She had
earlier been married to another person on the strength of an
agreement executed by her; but the same relationship was
brought to termination by Anneuxre-A1 agreement. One child
R.P.(FC) No. 24 of 2004 -: 4 :-
had been born in the said relationship. The petitioner in the
counter statement did not raise any contention to explain why
the 1st claimant was staking such an allegedly false claim against
him. However, in the course of evidence, he attempted to
advance a contention that the 1st claimant had requested him to
own the paternity of the 2nd claimant so that she can stake a
claim for benefits arising from the status of the child as the child
of a person belonging to the Scheduled Caste community to
which the petitioner belonged. It is significant that this
explanation was not advanced at the earlier stage of filing the
counter statement.
9. The evident advantage which a trial court has in the
matter of appreciation of evidence cannot also be lost sight of by
a superior court. An alert trial Judge makes perceptions which
are crucialy vital in the appreciation of evidence. The preference
given by the trial court to the evidence of the 1st claimant as
P.W.1 must, in these circumstances, be realistically considered.
Of course, there was no attempt to get the D.N.A. test conducted
to resolve the dispute regarding paternity of the child. In the
final analysis the better quality of evidence tendered by P.W.1,
the absence of any explanation on the part of the petitioner to
R.P.(FC) No. 24 of 2004 -: 5 :-
explain why P.W.1 was staking false claim against him, as also
the document – Ext.A2 which had come into existence at a point
of time when no dispute was existing between the parties are,
according to me, sufficient indications to tilt the scales in favour
of the claimant. At any rate, I am not persuaded to agree that
the revisional jurisdiction of superintendence and correction can
or ought to invoked to interfere with the finding.
10. I am conscious of the predicament of a person against
whom allegations of paternity are raised by a divorcee who
already has a child. I am cognizant of the burden of
responsibility on an unwed mother (a divorcee already having a
child in the instant case) who points out an individual as the
father of the illegitimate child born to her. But I note that the
court below had strained to test the veracity of the oral evidence
of P.W.1 and R.W.1 and has chosen, on the basis of the
circumstances rendered above, particularly Annexure-A2 to
prefer to accept the oral evidence of P.W.1. I do not find any
compelling reasons to disagree with that conclusion. The
course adopted by the court below appears to be cogent,
reasonable, just and fair. The petitioner had not offered to get a
DNA test conducted to resolve the controversy and to a specific
R.P.(FC) No. 24 of 2004 -: 6 :-
query by this Court the response is that the petitioner is
unwilling to undergo the test.
11. I am, in these circumstances, of opinion that this RP
(FC) does not deserve to be allowed. This RP(FC) is accordingly
dismissed.
(R. BASANT, JUDGE)
Nan/
R.P.(FC) No. 24 of 2004 -: 7 :-
R. BASANT, J.
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R.P.(FC) No. 24 of 2004
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Dated this the 1st day of September, 2008
ORDER