IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 6TH NOVEMBER 2008 / 15TH KARTHIKA 1930 RPFC.No. 256 of 2007() ---------------------- MC.81/2006 OF THE FAMILY COURT, KASARAGOD .................... PETITIONER/RESPONDENT: ------------------------------------------ ABDUL RAHMAN C.A., S/O. AHAMMAD, AGED 45 YEARS, NAZIYA MANZIL, CHETTUMKUZHI, P.O. HIDAYATH NAGAR, KASARAGOD TALUK, KASARAGOD DISTRICT. BY ADV. SRI.K.ANAND RESPONDENT(S): PETITIONERS: --------------------------- 1. ZUHRA, AGED 35 YEARS, D/O. MOHAMMED, W/O. ABDUL RAHMAN C.A., RESIDING AT BEKAL KUNNU, HADDAD NAGAR, P.O. PALLIKERE, HOSDURG TALUK, KASARAGOD DISTRICT. 2. SAFARIYA, D/O. ZUHRA, RESIDING AT BEKAL KUNNU, HADDAD NAGAR, P.O. PALLIKERE, HOSDURG TALUK, KASARAGOD DISTRICT. 3. SAINUL ABID, AGED 15 YEARS, RESIDING AT BEKAL KUNNU, HADDAD NAGAR, P.O. PALLIKERE, HOSDURG TALUK, KASARAGOD DISTRICT. 4. MOHAMMED HANEEFA, AGED 13 YEARS, RESIDING AT BEKAL KUNNU, HADDAD NAGAR, P.O. PALLIKERE, HOSDURG TALUK, KASARAGOD DISTRICT. (PTNR NOS.3 & 4 ARE MINORS, REP.BY THEIR MOTHER ZUHRA 1ST RESPONDENT, RESIDING AT BEKKALKUNNU, HADDAD NAGAR,P.O.PALLIKERE,HOSDURG TALUK,KASARAGOD 5. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.K.V.SOHAN FOR R1 SMT.SREEJA SOHAN.K. FOR R1 THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 07/11/2008, THE COURT ON 06/11/2008 PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - R.P.F.C.No. 256 of 2007 - - - - - - - - - - - - - - - - - - - - - - Dated this the 6th day of November, 2008 O R D E R This revision petition really raises the vexing problem of the helpless and hapless children on the one hand and their father, a person who is tested HIV positive on the other. Paternity is admitted. There are three minor children/claimants. The mother of the minor children had also claimed maintenance. Her claims stand rejected. There is no challenge against that part of the order. 2. The claimants were granted maintenance at the rate of Rs.1,000/- p.m. from the date of the order. When the matter came up before this Court, as per order dt. 22.6.2007 interim directions were issued obliging the petitioner to pay a total amount of Rs.1,000/- p.m. 3. It is contended that the petitioner/father is unable to do any work and that is the reason why he is not able to maintain his children. He does not have sufficient means. He is a tested HIV R.P.F.C.No. 256 of 2007 2 positive and it is asserted that he is not able to engage himself in any income earning activity because of his disease. 4. The claimants contend that it is not a case where he is not having sufficient means. Though tested HIV positive, he is in a position to work and earn his livelihood. There is also a suggestion that he is a very affluent person as can be seen from the fact that while the marriage with the mother of the claimants was in force, he had married twice again and had begotten children in such marriage. No tangible evidence of any income from property for the petitioner is produced. Similarly the petitioner has not produced any tangible data having a bearing on the question whether he is at present able to or unable to work and earn his livelihood. I am, in these circumstances, satisfied that the parties must be given a further opportunity to adduce all such further evidence that they want to adduce. The claimants can certainly attempt to introduce evidence to show that the petitioner has properties. The petitioner, in turn, can adduce evidence, that he has any such ailments which now affect his capacity to work. Direction shall be issued to the Family Court to dispose of the matter afresh R.P.F.C.No. 256 of 2007 3 expeditiously. The Family Court can of course make a note of the impression gathered by the Court about the physical condition of the petitioner. 5. Until the matter is finally disposed of, as directed at the time of admission on 22.6.2007, an amount at the rate of Rs.1,000/- p.m. shall be paid towards the interim maintenance of the claimants. I make it clear that when the matter is disposed of afresh, appropriate orders shall be passed by the Family Court on the basis of the evidence, including further evidence that is placed before court. 6. In the result: a) This R.P.F.C. is allowed in part. b) The impugned order is set aside. c) The learned Judge of the Family Court is directed to dispose of the matter afresh after giving both sides opportunity to adduce all further evidence which they want to adduce in support of their contentions. d) The parties shall appear before the learned Judge of the Family Court on 1.12.2008. The learned Judge shall dispose of the R.P.F.C.No. 256 of 2007 4 matter again as expeditiously as possible, at any rate, within a period of 45 days from 1.12.2008. e) Any amount in deposit shall forthwith be released to the claimants, who shall be entitled to enforce the claim for all amounts as per order dt. 22.6.2007, which shall continue as interim direction for payment of maintenance till disposal of the revision petition. (R. BASANT) Judge tm