IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 28TH OCTOBER 2008 / 6TH KARTHIKA 1930 RPFC.No. 269 of 2007 ------------------------------ MC.NO.82/2003 OF THE FAMILY COURT, KOZHIKODE) .................... REV.PETITIONER/ RESPONDENT: ------------------------------------------------ P.MUHAMMED, AGED 30 YEARS, S/O.AVARANKUTTY, RESIDING AT NELLIAMBA, WAYANAD. BY ADV. SRI.V.V.SURENDRAN, ADV. SRI.P.A.HARISH. RESPONDENTS/ PETITIONERS: --------------------------------------------- 1. JAMEELA, D/O.MUHAMMED KUTTY, RESIDING AT KUZHIKKALLATTU, P.O.FAROOQ COLLEGE, KOZHIKODE. 2. JASMINE, AGED 4 YEARS, D/O.P.MUHAMMED, REPRESENTED BY MOTHER, RESIDING AT KUZHIKKALLATTU, P.O.FAROOQ COLLEGE, KOZHIKODE. 3. JASNA, AGED 2 YEARS, D/O.P.MUHAMMED, REPRESENTED BY MOTHER, RESIDING AT KUZHIKKALLATTU, PO FAROOQ COLLEGE, KOZHIKODE. ADV. SRI.K.P.SUDHEER. THIS REV.PETITION (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 28/10/2008,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. R.BASANT, J ---------------------- R.P.F.C.No.269 of 2007 ---------------------------------------- Dated this the 28th day of October 2008 O R D E R The petitioner in this R.P.F.C challenges an order passed under Section 125 Cr.P.C obliging him to pay maintenance to claimants 2 and 3, allegedly his minor children at the rate of Rs.500/- per mensum each. 2. Marriage is admitted. The currency and validity of the marriage during the time when the children could have been conceived is also admitted. There is no contention that access was impossible. The petitioner claimed an opportunity to get the DNA test conducted to confirm paternity. Three children were born during the marriage. He admitted the paternity of the first and disputed the paternity of the other two, claimants herein. On the side of the claimants, their mother was examined as PW1. On the side of the petitioner, he was examined as RW1. The mother of the children had offered to undergo the DNA test; but the petitioner did not make himself available for the conduct of the said test. The learned Judge of the Family Court, in these circumstances, proceeded to pass the impugned order. It is submitted before me that later the maintenance amounts have been enhanced to Rs.750/- each per mensum. R.P.F.C.No.269/2007 2 3. It is also brought to my notice that a writ petition was filed by the petitioner before this court for a further opportunity to get the DNA test conducted and that petition was dismissed by this court as per judgment dated 07/10/2006 in W.P.C.No.13253/2006. 4. The presumption under Section 112 Cr.P.C stares at the petitioner. Marriage is admitted. Birth of the children during the validity and currency of the marriage is admitted. Non-access has not been proved. In these circumstances, I am of the opinion that the contention of the petitioner that he is aggrieved by the impugned order is without any merit. In law, the direction for payment of maintenance is absolutely correct and unassailable. 5. Regarding the quantum, no worthwhile challenge has been raised before me, that is at the rate of Rs.500/- per mensum . 6. This R.P.F.C is in these circumstances only deserves to be and is hereby dismissed. 7. It is submitted subsequently that the order of maintenance has been enhanced. Consequent to the dismissal of this petition, unless the enhancement order is challenged, needless to say, the petitioner shall be liable to pay maintenance at the enhanced rates. (R.BASANT, JUDGE) jsr R.P.F.C.No.269/2007 3 R.P.F.C.No.269/2007 4 R.BASANT, J R.P.F.C.No. ORDER 11/02/2008