IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 4TH APRIL 2008 / 15TH CHAITHRA 1930 RPFC.No. 96 of 2008() --------------------- MC.729/2006 OF FAMILY COURT, PALAKKAD .................... REVN.PETITIONER/ COUNTER PETITIONER ----------------------------------- GANGADHARAN @ KANNAN, AGED 39 YEARS S/O.KUTTAPPAN, CHAKKARAPURA VEEDU, MATHUR MUDAPPALLUR P.O., ALATHUR TALUK PALAKKAD DISTRICT. BY ADV. SRI.H.BADARUDDIN RESPONDENTS: PETITIONERS ------------------------ 1. GEETHA, AGED 25 YEARS, D/O.KRISHNANKUTTY THEKKEMPURAM, MELARODE P.O., ALATHUR TALUK PALAKKAD DISTRICT. 2. HARITHA, AGED 5 1/2 YEARS, D/O.GEETHA 3. HARI KRISHNAN, AGED 3 YEARS, S/O.GEETHA (MINORS 2&3 ARE REPRESENTED BY MOTHER THE FIRST RESPONDENT HEREIN, RESIDING WITH THE 1ST RESPONDENT AT THEKKUMPURAM, MELARCODE ALATHUR TALUK, PALAKKAD DISTRICT) BY THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 04/04/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ```````````````````````````````````````````````````` R.P.F.C. No. 96 OF 2008 ```````````````````````````````````````````````````` Dated this the 4th day of April, 2008 O R D E R The petitioner claims to be aggrieved by an order passed by the Family Court under section 125 Cr.P.C. directing payment of maintenance at the rate of Rs.1,000/- for the first claimant wife and Rs.500/- each for the 2nd and 3rd claimants, minor children aged 4½ years and 2 years respectively. 2. That the marriage took place on 8.6.2000 is admitted. Paternity of the 2nd petitioner/1st child is admitted. Paternity of the 2nd child/3rd petitioner is disputed. That child was born on 30.11.03. The marriage was dissolved by an order of court on 5.10.05. 3. The claimants staked the claim for maintenance asserting that they are unable to maintain themselves and that the petitioner having sufficient means is neglecting and refusing to pay maintenance to them. The claim was filed after the divorce on 4.7.06. The petitioner raised the contention that the first claimant wife was living in adultery when the marriage was RPFC.96/08. : 2 : subsisting and that even thereafter she is living in adultery. It was contended that she is not hence entitled for maintenance. As stated earlier, the 2nd claimant's claim was not disputed. There was only dispute about the quantum so far as the 2nd claimant is concerned. Regarding the 3rd claimant/2nd child, it was contended that the said child was not that of the petitioner and that such child must have been begotten in the illicit relationship of the first claimant wife with some other persons. 4. Parties went to trial on these contentions and the first claimant and the petitioner examined themselves as PW1 and CPW1. Exts.P1 to P3 were marked on the side of the claimant. Exts.B1 to B3 were marked on the side of the petitioner. 5. The learned judge of the Family Court, on an anxious evaluation of all the relevant inputs, came to the conclusion that all the claimants are entitled for maintenance. Accordingly, the impugned order was passed directing payment of maintenance at the rates mentioned above. RPFC.96/08. : 3 : 6. The petitioner claims to be aggrieved by the impugned order. What is his grievance? The learned counsel for the petitioner, first of all, contends that the direction to pay maintenance to the wife is not justified. She having lived in adultery prior to the marriage and during the currency of the marriage and continues to live in adultery after the divorce, it is contended. 7. I am afraid this contention cannot legally stand. It is well established that adultery is not a ground on which the claim of a divorced wife can be resisted by a divorced husband. The law on the point is considered in detail and referred to in Sajeev Kumar Vs. P.Dhanya and another [2008 (2) KHC 118]. The earlier binding precedent in Valsarajan Vs. Saraswathy [2003 (2) KLT 548] was referred to in detail. Adultery is not an indiscretion which a divorced wife can ever commit against her former husband. The fact that the woman lived in adultery while the marriage was current or that she leads an immoral life after divorce are not both sufficient grounds by themselves to resist the claim for RPFC.96/08. : 4 : maintenance of the divorced wife. The said contention must hence fall to the ground. 8. We then come to the claim of the 2nd child/3rd petitioner. The marriage took place on 8.6.2000. The divorce took place on 5.10.05. The 3rd claimant/2nd child was born on 30.11.03. The presumption under section 112 of the Evidence Act applies with vigour and unless non-access is proved satisfactorily, the petitioner cannot avoid the liability to pay maintenance. To substantiate his contention of non- access, the petitioner examined only himself. The learned judge of the Family Court held that non-access has not been proved. Relying on Exts.P1 and P2 photographs wherein admittedly the petitioner was standing along with his wife carrying the said child whose paternity he now disputed, the court came to the conclusion that the plea of non-access is unacceptable. I find absolutely nothing wrong in the said conclusion of the learned judge of the Family Court. Non- access has not been proved in the manner in which it is expected to be proved in the light of the conclusive RPFC.96/08. : 5 : presumption under section 112 of the Evidence Act which can be rebutted only in the manner contemplated under section 4 of the Evidence Act read with section 112. Non-access has been proved satisfactorily. The said contention cannot hence help the petitioner. 9. The quantum of maintenance fixed is found to be absolutely justified. Invoking the revisional jurisdiction of superintendence and correction, I am not persuaded to interfere with the quantum of maintenance fixed. The meagre amounts of Rs.1,000/- for the wife and Rs.500/- each for the children cannot be said to be excessive or disproportionate to the means of the petitioner or the needs of the claimants. That contention cannot also hence succeed. 10. Finally, it is contended that the petitioner may be given an opportunity to adduce further evidence. What is the evidence which the petitioner wants to adduce? According to the petitioner, he wants to prove A1 agreement which has been produced before this Court in revision and which was not produced before the court below at any time. That is an RPFC.96/08. : 6 : agreement dated 1.7.99 whereunder the first claimant is alleged to have entered into an agreement with another to live with him. It is thereafter that the marriage between the petitioner and the 1st claimant took place on 8.6.2000. In any view of the matter, the agreement dated 1.7.99 cannot at all help the petitioner to contend that the wife was living in adultery during matrimony which commenced long later or that the child born in that wedlock is illegitimate and not his. In these circumstances, this contention cannot also succeed. 11. Additional evidence in revision cannot be received unless compelling reasons are there. It cannot be received as a matter of course. The document must be vitally relevant and helpful to render the decision on the disputed question. There must be valid and compelling reasons to explain non- production before the court below at the appropriate stage. Neither circumstances are available here. 12. Counsel contends that the petitioner will be put to great hardship. If the petitioner has a contention still that the 2nd child/3rd claimant is not born to him and he is not the father RPFC.96/08. : 7 : of the child then the petitioner will have to seek his relief of appropriate declaration from the civil court. If he feels confident that he will be able to adduce appropriate evidence to rebut the conclusive presumption under section 112, he has that option under law. An order passed under section 125 Cr.P.C., it is trite may at worst only cast a shadow on the disputed status of the parties and it is open to a party to go to the civil court to get the shadow removed by seeking appropriate declaration. If so advised, the petitioner has only that final option before him. 13. Lastly and finally, it is prayed that some further time may be granted to pay the amounts which have already become payable. I do not intend to express any opinion on this aspect. It is for the petitioner to approach the Family Court and seek appropriate relief/accommodation, after proving his bona fides after making substantial payments. 14. In the result, this R.P.F.C. is dismissed. (R.BASANT, JUDGE) aks