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Krishnankutty vs Vineeth on 1 September, 2008

Kerala High Court
Krishnankutty vs Vineeth on 1 September, 2008
       

  

  

 
 
  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.
            -------------------------------------------------
                   R.P.(FC) No. 24 of 2004
            -------------------------------------------------
        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.

————————————————-

R.P.(FC) No. 24 of 2004

————————————————-
Dated this the 1st day of September, 2008

ORDER

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