IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 2ND MARCH 2009 / 11TH PHALGUNA 1930 MFA.No. 1278 of 2002(A) ---------------------------------- OP.181/2000 of FAMILY COURT, MALAPPURAM .................... APPELLANT/PETITIONER --------------------------------- PREETHI ALIAS RAJESH, S/O. MAMBATTA VALAPPIL GOPALAN, KOLOLAMBA, EDAPPAL BY ADV. SRI.K.RAMACHANDRAN RESPONDENTS/RESPONDENTS ------------------------------------------ 1. RASNA, D/O. VASU, ELIYATHU THARAYIL HOUSE KOLOLAMBA, VIA. EDAPPAL, MALAPPURAM DISTRICT. 2. RITHIK, MINOR AGED 5 YEARS, REPRESENTED BY MOTHER, 1ST RESPONDENT DO.DO. DO. ADV. SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE FOR R1 & R2 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 16.02.2009, THE COURT ON 02/03/2009 DELIVERED THE FOLLOWING: P.R.Raman & P.S.Gopinathan, JJ. ================================== M.F.A.No.1278 of 2002-A ================================== Dated this the 2nd day of March, 2009. JUDGMENT Gopinathan, J. Appellant is the petitioner in O.P.No.181 of 2000 on the file of the Family Court, Manjeri. Originally, it was instituted as a suit as O.S.No.29 of 1999, before the Subordinate Judge's Court, Tirur. The respondents are mother and son. They filed a petition as M.C.No.23 of 1996 before the Judicial Magistrate of the First Class, Ponnani seeking an order for maintenance under Section 125 of the Code of Criminal Procedure claiming that the first respondent is the legally wedded wife of the appellant and the second respondent is the son born out of the wedlock and that the appellant neglected to maintain them and hence the respondents are entitled to an order for maintenance. Though the appellant entered appearance and filed a counter statement, he did not care to defend the proceedings. Ultimately, on 26.8.1997 the petition was allowed ex-parte and the MFA 1278/02 -:2:- appellant was directed to give maintenance to the respondents at the rate of Rs.500/- each per month. The appellant did not heed to pay the amount. Consequently, the respondents were constrained to initiate proceedings for realization of the maintenance amount. When coercive steps were ahead, the appellant preferred the above suit on 24-9-1999 seeking a decree declaring that the first respondent is not the legally wedded wife of the appellant and the second respondent is not the son born to the appellant and for a decree of permanent prohibitory injunction restraining the respondents from realizing the maintenance awarded to the respondents as per order in M.C.No.23 of 1996. 2. It was alleged by the appellant that he is the son of a retired teacher and had been residing along with his parents and brothers and that the first respondent is residing a little more than one kilometer away from the house of the appellant and that the first respondent had begotten the child from her illicit relationship and when her attempt MFA 1278/02 -:3:- to impute the paternity of the second respondent against many other persons became futile, she turned against the appellant and that on 1-11-1994 the appellant and his father were called upon to the house of Raghavan, the then President of Vattamkulam Panchayat and under threat and coercion got executed a marriage agreement as well as an agreement to conduct paternity test to identify the paternity of the second respondent and that there was no matrimonial relationship between the appellant and the first respondent and that the appellant is not liable to maintain the respondents and that because of threat from the side of the respondents, he had to leave the locality and so he could not defend the proceedings before the Magistrate Court and that the order in M.C.No.23 of 1996 is not enforceable against the appellant. 3. The respondents, in their written statement, contended that the appellant and the respondents belong to Kanakka community and that the appellant and the first respondent are distantly related and MFA 1278/02 -:4:- that the mother of the first respondent was ailing with carcinoma and had been undergoing treatment at Amala Hospital and during that period, the appellant had been visiting the house of the first respondent frequently and that they fell in love and the appellant had been passing love letters and induced the first respondent to have sexual intercourse on promise that he would marry her and thus they had sexual intercourse on various occasions as a result of which the first respondent conceived and while so, a marriage ceremony was solemnized on 1.11.1994 and that the appellant executed two agreements, the original of which were marked as Exts.B8 and B9. Ext.B8 is the marriage agreement. Since the appellant had raised doubt about the paternity of the second respondent, Ext.B9 agreement was executed wherein both parties agreed to conduct paternity test after the confinement. But the appellant did not care to maintain the respondents or to undergo paternity test and in that circumstance M.C.No.23/1996 was MFA 1278/02 -:5:- filed and order obtained and the suit is devoid of merits. 4. After raising the issues, the parties were sent for trial. While so, the Family Court at Manjeri was established. Consequently, suit being one coming under the exclusive jurisdiction of the Family Court, it was made over to the Family Court wherein it was re-numbered. 5. The appellant filed a petition as I.A.No.857 of 2000 requesting for according sanction to conduct DNA test. The first respondent agreed for the same. Though the appellant was directed to report before the Rajiv Gandhi Centre for Bio- technology, Thiruvananthapuram on 17-9-2001 to collect the blood sample for DNA test, he did not care to give blood sample. So trial was proceeded without conducting DNA test. 6. On the side of the appellant, himself and his father were examined as P.Ws.1 and 2. The husband of the niece of P.W.2 was examined as P.W.3. On the side of the appellant, copy of the MFA 1278/02 -:6:- marriage agreement and another agreement dated 1.11.1994 were marked as Exts.A1 and A2. On the side of the respondents, the first respondent was examined as R.W.1 and another witness was examined as R.W.2. Exts.B1 to B7 were marked as letters handed over to the first respondent by the appellant. Exts.B8 and B9 are the originals of Exts.A1 and A2. Ext.B10, a cancelled train ticket and Ext.B11 series photographs were marked on the side of the respondents. 7. The learned trial Judge, on appraisal of the evidence, arrived a finding that there is no legal marriage in between the appellant and the first respondent, but the appellant is the father of the second respondent. Consequently, the suit was decreed in part whereby it was declared that the first respondent is not the legally wedded wife of the appellant. Consequently, the first respondent was restrained by a decree of perpetual injunction restraining the execution of the order for maintenance in M.C.No.23 of 1996 as far as it MFA 1278/02 -:7:- relates to the 1st respondent. The prayer for declaration that the second respondent is not the son of the appellant was declined. Resultingly, the prayer to restrain the respondents from enforcing the maintenance order in favour of the 2nd respondent was not allowed. 8. Assailing the decree and judgment declining to declare that the second respondent is not the son of the appellant, this appeal was preferred. 9. The point that arises for consideration is: whether the appellant is entitled to a decree declaring that the second respondent is not the son born to the appellant. The point 10. The first respondent had not cared to challenge the decree whereby it was declared that the first respondent is not the legally wedded wife of the appellant. So, that part of the decree and judgment had become final and it can be safely concluded that there is no marital relationship MFA 1278/02 -:8:- between the appellant and the first respondent. So, the evidence had to be analyzed as to whether the second respondent is the son born to the appellant or not. 11. The appellant and his father who were examined as P.Ws.1 and 2 had admitted that Exts.B8 and B9 agreements, copies of which were marked as Exts.A1 and A2, produced by the appellant were signed by them. It is specifically stated therein that the appellant and the first respondent were in love for about one year and consequently they were having sexual intercourse on various occasions and as a result, the first respondent was impregnated and that since the appellant raised doubt about the paternity, they mutually agreed to undergo scientific test to determine the paternity. Though P.Ws.1 and 2 had deposed that they have signed both the documents under threat and coercion and without reading or understanding the contents, Exts.A1 and A2 were given to the appellant on the date of its execution. The documents are dated MFA 1278/02 -:9:- 1.11.1994. The appellant did not care to challenge the same till he instituted the suit on 24-5-1999. He rushed to the court only when coercive steps were taken by the first respondent to execute an order for maintenance obtained under Section 125 of the Cr.P.C. and that he had no other go but to surrender to the coercive steps. It is admitted that P.W.2 is a retired teacher. PW.3, as I mentioned earlier, is the husband of the niece of P.W.2. He is an attester to both documents. He had deposed that he had signed those documents without reading the contents and that those who gathered there told him that he could not go from the spot unless the document was signed. But, in cross-examination, he had to admit that the documents were signed according to the interest of P.Ws.1 and 2. That part of the evidence of PW.3 belies his evidence that Exts.B8 and B9 were got signed under threat or coercion. 12. The cause of action for the suit is alleged to be 30.3.1996 on the day when M.C.23 of 1996 was MFA 1278/02 -:10:- filed and 26-8-1997 when the petition was allowed and 4-10-1997 when the first respondent filed petition for realization of the amount due as per order in M.C.23 of 1996. The appellant had not produced any of these documents. However, it is not disputed that the first respondent preferred the above petition under Section 125 of the Cr.P.C. alleging that the appellant married the first respondent and that the second respondent is the son born to the appellant. In the plaint, the appellant had denied the marital relationship between him and the first respondent as well as the paternity of the second respondent. In the written statement, the respondents had taken a contention that the appellant and the first respondent were in love and had sexual intercourse on various occasions and thus the first respondent was impregnated and that the second respondent is the child born to the appellant. Though the appellant had denied the marital relationship, which is not now relevant, the appellant did not have any MFA 1278/02 -:11:- whisper in his evidence denying the sexual intercourse between himself and the first respondent. On the other hand, the first respondent as R.W.1 had specifically deposed that before the alleged marriage, the appellant and herself were in love and the appellant, on promise of marriage, induced her to have sexual intercourse and as a result she was conceived and the second respondent was born. Though R.W.1 was subjected to searching cross-examination, no material was disclosed to disbelieve R.W.1. On the other hand, the appellant as P.W.1 had not denied the sexual intercourse between himself and the first respondent. His silence regarding the sexual intercourse looms large. So, the testimony of R.W.1 remains not controverted. Her evidence itself would convincingly establish that the appellant had sexual intercourse with the first respondent and that the first respondent was impregnated and the second respondent was thus born to the appellant. MFA 1278/02 -:12:- 13. It is admitted by P.W.1 that the first respondent caused a notice demanding maintenance even prior to the institution of M.C.23 of 1996. Admittedly no reply was caused. The appellant would explain that there was an agreement to have paternity test and that on hope that the first respondent would take steps to have paternity test, he did not reply. As I mentioned earlier, the appellant was directed by the lower court to go to the Rajiv Gandhi Centre for Bio-technology to give blood sample for DNA test. But the appellant did not care to give blood sample. According to the appellant, since he had no money to meet the expenditure, he did not give blood samples. That version of the appellant is only a lame excuse. There is no case for the appellant that he was asked to meet the expenditure. Admittedly, P.W.2, the father of the appellant, was always defending him. He has no case that he had any financial difficulty to meet the expenditure for undergoing paternity test. There is no whisper in his MFA 1278/02 -:13:- evidence that the appellant did not undergo paternity test for want of money. The lower court had, while arriving a conclusion against the appellant, taken note of the withdrawal of the appellant from undergoing the paternity test. The non response of the appellant to the notice demanding maintenance also leads to an inference that he had no defence. Having gone through the pleadings and evidence on record and arguments advanced on either side, we are of the opinion that the appellant cleverly avoided DNA test. Hence the presumption canvassed against the appellant is absolutely correct and requires no interference. 14. It is the very case of the appellant that he did not contest the proceedings before the Magistrate Court. According to him, because of threat, he had to leave the station and so he could not defend the proceedings. Other than the oral exercise, there is no material on record to conclude that there was any threat from the side of the first respondent so as to compel the appellant MFA 1278/02 -:14:- leaving the station. The appellant could have very well defended proceedings before the learned Magistrate and establish his case, but he did not care to defend the proceedings. On the other hand, the suit was instituted long after the order to pay maintenance, that too, when the first respondent initiated coercive proceedings against the appellant. It appears that the suit was instituted on experimental basis. The omission of the appellant not to reply to the notice demanding maintenance and to defend the proceedings for maintenance are strong circumstances against the appellant and in support of the plea of the respondents. 15. Exts.A1 and A2 would show that, as early as 1.11.1994, the appellant had admitted that he had sexual intercourse with the first respondent. True that the appellant had raised a doubt about the paternity of the second respondent and had been cautious to incorporate a provision in Ext.A2 that paternity test is to be conducted. Though the MFA 1278/02 -:15:- appellant has got a case that Exts.A1 and A2 were executed under threat and coercion, as I mentioned earlier, there is little evidence to come to a conclusion that there was in fact any threat or coercion to get Exts.A1 and A2 executed by the appellant. On the other hand, the evidence of Pws.2 and 3 would show that the extra-martial relationship between the appellant and the first respondent was practically admitted by the appellant. Though the appellant has got a case that the first respondent was impregnated in her illicit relationship, there is no whisper either in the pleadings or in the evidence that the first respondent had got any illicit relationship with any person other than the appellant or that she is a lady with loose morals. Such being the materials on record regarding the sexual relationship between the appellant and the first respondent, it is legitimate to arrive an inference in favour of the paternity of the 2nd respondent imputed against the appellant. MFA 1278/02 -:16:- 16. It is also pertinent to note that the appellant could not bring out any material to arrive at a conclusion that the 1st respondent had any ill motive to implicate the appellant. The appellant has no peculiar reason to put forward for having the appellant imputed as the father of the 2nd respondent. There is no material coming forward to conclude that the appellant was falsely implicated for any good reason. No reason is coming forward for the 1st respondent preferring the appellant as the father of the 2nd respondent, in case the 1st respondent had any sexual relationship with any other person. Appellant has no case that he had any good charm for he being imputed as the father of the 2nd respondent. 17. Having heard either side and on a critical analysis of the evidence on record and taking into account the preponderance of probabilities, we find that the trial court had correctly analyzed the evidence and arrived a conclusion that the appellant is the father of the second respondent. MFA 1278/02 -:17:- We find little reason to interfere with the impugned judgment. Point found accordingly. 18. In the result, the appeal fails. Accordingly it is dismissed with costs. The appellant is given three months' time for discharge of the maintenance arrears, provided, one third of the maintenance arrears is deposited within one month. P.R.Raman, Judge. P.S.Gopinathan, Judge. sl/mt. MFA 1278/02 -:18:- P.R.Raman & P.S.Gopinathan, JJ. ================================== M.F.A.No.1278 of 2002-A JUDGMENT Dated:2-3-2009