IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 22ND OCTOBER 2008 / 30TH ASWINA 1930 RPFC.No. 60 of 2004() --------------------- MC.128/1998 OF THE FAMILY COURT, KOTTAYAM. .................... REVISION PETITIONER/PETITIONER -------------------------------------------------- ANUMON, 6 YEARS (MINOR) REPRESENTED BY HIS MOTHER K.R.ANJU, KOLLAMPARAMBIL HOUSE, CHIRAYAPADAM BHAGOM, THIRUNAKKARA KARA, KOTTAYAM. BY ADV. SMT.K.V.BHADRA KUMARI RESPONDENT(S): RESPONDENT ------------------------- KICHEN ALIAS RADHAKRISHNAN, STATE BANK OF TRAVANCORE, TREASURY BRANCH, COLLECTORATE P.O., KOTTAYAM-2. ADV. SRI.K.GOPALAKRISHNA KURUP FOR R1 THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 22/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- R.P.(FC) No. 60 of 2004 ------------------------------------------------- Dated this the 22nd day of October, 2008 ORDER This R.P.(FC) is filed by the claimant – an illegitimate child, born to a unwed mother who was in her teens when she was impregnated. The respondent/herein is a neighbour – a married man with children. He was employed as a sweeper in the State Bank of Travancore, Treasury Branch, Kottayam, allegedly earning Rs.3,500/- per month. It was alleged that the hapless mother of the claimant was raped by the respondent and in such relationship the claimant/child was born. For the said alleged act of rape, the respondent has already been convicted by a criminal court and he is now undergoing imprisonment in that case, it is submitted and conceded. The respondent had denied the said allegation of rape and paternity. On the side of the claimant/child, two witnesses, including its mother, were examined as P.Ws.1 and R.P.(FC) No. 60 of 2004 -: 2 :- 2. Exts.A1 to A3 were marked on the side of the claimant. The respondent examined himself as R.W.1. There was no other evidence adduced. It is relevant to observe that though the claimant offered to undergo DNA test, the respondent adamantly refused to undergo such test. 2. The learned Judge of the Family Court, on an anxious consideration of all the relevant inputs, came to the conclusion that it was safe to place reliance on the evidence tendered by the claimant to come to the conclusion that the respondent is the father of the claimant/minor child. Accordingly, the learned Judge proceeded to pass the impugned order. 3. The respondent has not chosen to challenge the order. No revision has been preferred against the finding that he is the father of the claimant. The claimant/child has come before this Court through her grandmother to assail the quantum fixed as also the direction that maintenance is liable to be paid only from the date of the order and not from the date of the petition. The claimant is represented by her grandmother. When the claim was filed, the mother of the claimant was a minor. 4. Only two questions arise for consideration now. They are: (1) Does the quantum of maintenance awarded deserve upward modification? (2) Whether the direction that R.P.(FC) No. 60 of 2004 -: 3 :- maintenance need be paid only from the date of the order warrants revisional interference? 5. The petition was filed in 1998. The order was passed only in 2003. There is no contention whatsoever that any amount had been paid during the pendency of the proceedings towards maintenance. During the relevant period, undisputedly the respondent was employed as sweeper in the State Bank of Travancore, Treasury Branch, Kottayam. He had a stable employment and income. Of course, the materials show that his wife and two children also had to be maintained. The materials presently available further show that the respondent is undergoing imprisonment in prison. Taking all the relevant circumstances into account, I am of opinion that the quantum of maintenance need not be enhanced now. But I clarify that the quantum of maintenance must be reckoned as fixed on the basis of the state of affairs prevailing in 1998 – the date of the claim. I do further observe that as soon as the respondent comes out of prison, the petitioner/claimant child shall be at liberty to claim enhancement of maintenance which claim must be considered on merits and on the basis of the evidence that shall be placed before court by the Family Court and appropriate decision taken. 6. That leaves me with the contention that the R.P.(FC) No. 60 of 2004 -: 4 :- maintenance must have been ordered from the date of the petition and not from the date of the order. On this aspect, Sec.125(2) Cr.P.C. is relevant. I extract the same below: “125. Order for maintenance of wives, children and parents.-- (1) x x x x x x x (2) Any such allowance for the maintenance or interim maintenance and expenses for proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be.” (emphasis supplied) 7. The order is to take effect from the date of the order or if so ordered from the date of the application for maintenance. The question is whether the Family Court ought to have ordered maintenance from the date of the petition. The law confers a discretion on the court to direct payment of maintenance under Sec.125 Cr.P.C. either from the date of the order or from the date of the petition. All discretions conferred on courts must be exercised judicially and judiciously taking note of all the relevant circumstances. In a case where the liability is established and there is no contention that any amount has been R.P.(FC) No. 60 of 2004 -: 5 :- paid during the pendency of the proceedings, I find no reason why such direction for payment should not take effect from the date of the petition unless satisfactory reasons are there. Where liability to pay maintenance is proved or undisputed and no payment is made towards such liability during the pendency of the proceedings, every court worth its salt exercising the discretion must exercise such discretion in favour of the claimant unless there be satisfactory reasons in the facts of a given case to deny such maintenance from the date of the petition. No such circumstances are shown to exist in this case. Admittedly, the respondent was having stable employment and income during the relevant period. That he has not paid the amount promptly cannot deliver any advantage to him. If the discretion is not exercised in favour of the claimant, there is always the possibility of recalcitrant respondents attempting to prolong and protract the proceedings and thereby attempting to gain pecuniary advantage. The petition has been pending for an inordinately long period of 5 years before the Family Court. In any view of the matter, I am satisfied that there is no justifiable ground to exercise the discretion against the claimant and in favour of the respondent. I am satisfied that the gross error committed in the exercise of discretion by the Family Court R.P.(FC) No. 60 of 2004 -: 6 :- which definitely has resulted in miscarriage of justice deserves to be corrected by invoking the revisional jurisdiction of superintendence and correction. 8. In the result: (a) This RP(FC) is allowed in part. (b) It is directed that the maintenance under the impugned order is liable to be paid from the date of the petition (17/10/97) and not from the date of the order. (c) It is observed that the amount of maintenance must be deemed to have been fixed on the basis of the state of events on the date of the petition and the claimant shall be entitled to claim enhancement of maintenance as soon as the respondent comes out of prison which claim will again have to be considered on the basis of the pleadings and evidence in such claim and appropriate orders passed. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge R.P.(FC) No. 60 of 2004 -: 7 :-