IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 6TH MARCH 2009 / 15TH PHALGUNA 1930 RPFC.No. 168 of 2004(E) ----------------------- MC.341/2000 OF THE FAMILY COURT, THIRUVANANTHAPURAM .................... REVISION PETITIONER/ RESPONDENT ----------------------------------------------- S.RAMESAN ASARI, S/O.SANKARAN ASARI, CHERUKONATHU VEEDU, POTHENCODU P.O., THIRUVANANTHAPURAM DIST. BY ADV. SRI.KRB.KAIMAL, SENIOR ADVOCATE SRI.V.D.SUDHEER RESPONDENT(S)PETITIONERS & STATE: ------------------------------------------------ 1. KUMARI LATHA, THUSHARA, VAZHATTUKONAM, VATTIYOORKKAVU, KODUNGANOOR P.O., THIRUVANANTHAPURAM. 2. AKSHAYA (MINOR), DO. DO. 3. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.G.UNNIIKRISHNON FOR R1 & R2 R3 BY PUBLIC PROSECUTOR SRI. GIKKU JACOB. THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 06/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = R.P(F.C.) NO. 168 OF 2004 = = = = = = = = = = = = = = = Dated this the 6th day of March, 2009. O R D E R This revision is preferred against the order of the Family Court, Thiruvananthapuram in M.C.341/00. The wife and child preferred a claim for maintenance against the husband and the Court below ordered maintenance at the rate of Rs.500/- each. The unfortunate couple got married on 31.3.1997. The child was born on 11.1.1998 but the paternity of the child is disputed by the father. The Family Court after analysis of the materials held that the petitioners are entitled to maintenance at the rate of Rs.500/- each and it is against that decision the husband has come up in revision. 2. The husband has disputed the paternity of the child and contends that he is not liable to maintain the wife and children. There was also a matrimonial divorce petition as O.P.619/00 wherein the husband also attributed adultery against the wife. The Court ultimately found that all those R.P(F.C.) NO. 168 OF 2004 -:2:- allegations of unchastity is absolutely incorrect and the child is born in their wedlock but granted a divorce on the ground that they have been residing separately for more than 3 years and that the marriage has irretrievably broken down. Learned counsel would contend that the marriage has not been consummated at all and therefore the child cannot be that of the revision petitioner. Admittedly the marriage took place on 31.3.1997. A perusal of the records produced in this case would show that they were living together at least till 31.10.97. Exts.A2 and A2(a) would show that the husband and wife got involved in an accident and she was brought to the hospital by the husband. That would indicate that they were travelling together which will further indicate that they were living together. Exts.A3 and A4 would show that a child was given birth on 11.1.1998 and that the name of the father is Remesan Asari and the name of the mother is Latha Remesan Asari. A5 series are letters written by the father-in-law to the daughter-in-law. Exts.A5(a) and A5 would show that the father-in-law had great affinity for the daughter-in-law and he was not happy with the conduct of the husband and it was on account of his ill-health he was R.P(F.C.) NO. 168 OF 2004 -:3:- not able to see her from the hospital. In Annexure 5(b) a specific reference is made with respect to the ceremony of the new born child and the disappointment of the father for non-participation of the husband of the petitioner. So the materials available would conclusively indicate that the husband and wife had been living together under the same roof at least up to 31.10.97. U/s 112 of the Evidence Act there is a presumption regarding the legitimacy of the child. When a child is born during the subsistence of marriage and it can be only rebutted if non access is proved. The Apex Court has also cautioned that for the purpose of DNA test also the materials incorporated u/s 112 of the Evidence Act has to be taken into consideration otherwise there will be a large tendency to challenge the paternity of each and every child. So in a case where the marriage is admitted and living together is proved and access is proved from the materials available the normal logical conclusion is that the child born during the subsistence of the marriage is legitimate. In this case though the husband speaks about DNA test he is never prepared to spend any amount but wants to challenge the paternity of the child. A husband cannot be more cruel when R.P(F.C.) NO. 168 OF 2004 -:4:- he challenges the chastity of the wife and it shows the inherent intolerance of the husband towards the wife. When such is the attitude no wife is expected to stay with that husband and therefore living separately by the wife is something which is substantiated by valid reasons. Therefore I hold from the materials that the Court was perfectly right in arriving at a decision regarding the paternity of the child. The Court has only ordered a maintenance of Rs.500/- each to be paid to the mother and child. Ext.B1 document produced would show that the income of the husband is more than Rs.7,800/-. So by any stretch of imagination one cannot hold that maintenance awarded is excessive. I do not find any ground to interfere with the decision rendered by the learned Family Court Judge and therefore the R.P.(F.C) is dismissed. M.N. KRISHNAN, JUDGE. ul/-