IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 6TH JANUARY 2010 / 16TH POUSHA 1931 RPFC.No. 123 of 2005() -------------------------------- MC.149/2002 of FAMILY COURT, KOZHIKODE. .................... PETITIONERS/PETITIONERS ----------------------------------------- 1. MAVULLA THARAMMEL RABIYA, AGED 25 YEARS, D/O.ABDULLA, P.O.VELAM, PERUVAYAL, KOYILANDY TALUK, KOZHIKODE DISTRICT. 2. MOHAMMED SHAHID, S/O. BASHEER, MINOR, AGED 5 YEARS, REPRESENTED BY THE 1ST PETITIONER. BY ADV. MR.P.K.SURESH KUMAR MR.K.P.SUDHEER RESPONDENT/RESPONDENT: ------------------------------------------ KURIKKALAKANDI BASHEER, S/O. MOIDEEN, AGED 31 YEARS, ERAVATTOOR AMSOM, KALLODE DESOM, PERAMBRA, KOZHIKODE DISTRICT. BY ADV. MR.NIDHI BALACHANDRAN . THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 06/01/2010,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.N. KRISHNAN, J. = = = = = = = = = = = = = = = R.P.(F.C.) NO. 123 OF 2005 = = = = = = = = = = = = = = = Dated this the 6th day of January, 2010. J U D G M E N T This revision is preferred against the order of the Family Court, Kozhikode in M.C.149/02. It is the case of the first petitioner that she had married the respondent therein and a child had been born to them in the wedlock and that the husband has treated her with cruelty and therefore she is entitled to maintenance. On the other hand, the husband would contend that the wife had cheated him and she had conceived even before the marriage and therefore the marriage is null and void and so she is not entitled to any maintenance. 2. From the facts available in this case it can be seen that the marriage was conducted on 19.2.2000 and the child was born on 9.10.2000. It has also come out in evidence that the child was a fully grown up child at the time of delivery. It has to be stated that as per the decision reported in R.P.(F.C.) NO. 123 OF 2005 -:2:- Mahendra Manilal Nanavati v. Sushila Mahendra Nanavati (AIR 1965 SC 364) it is held as follows. “The usual period of gestation from the date of first coitus is between 265 and 270 days and delivery is expected in about 280 days from the first day of the menstruation period prior to a woman conceiving a child. Where the child was born after 171 days of the first coitus between the husband and wife, and the child and the delivery was normal, normally the Court should hold that the child was not a child born after 171 days' gestation and was not the child of the husband, unless there is evidence which would justify the Court in holding otherwise.” 3. Now in this case the evidence of RW2 would indicate that when the wife had undergone scan on 8.5.00 the fetus was about 18 to 19 weeks. In this case DNA test was conducted and it was found that the respondent is not the biological father of the child. So the factum of delivery within a period of 233 days coupled with the fact that the child was R.P.(F.C.) NO. 123 OF 2005 -:3:- born as a fully grown up child and the result of the DNA test indicating that the husband was not the biological father of the child, I have no hesitation to hold that the Family Court was right in coming to the conclusion that the child is not born to the respondent in the first petitioner in the M.C. Case. 4. Now the next question is regarding the entitlement of the maintenance. The learned Family Court Judge held that the lady was living in adultery and therefore she is not entitled to maintenance. The word 'adultery' signifies sexual act with the spouse of any person and admittedly at the time of the alleged conception the petitioner was not married and since she had not married another person it could not be said she had committed adultery. Then the significance of S.125(4), i.e. living in adultery may not arise if no sexual act with a third person is proved after the marriage. In that angle the matter has not been considered. Whether there were sufficient reasons for her to live separately was also not considered by the Family Court. Though it is contended in the counter statement that the wife is having much extent of property etc. R.P.(F.C.) NO. 123 OF 2005 -:4:- that also is not adverted to in this case. Therefore whether the wife is entitled to maintenance in such a back ground is a question that requires further probe and for the said purpose the matter is remitted back to the Family Court with a direction to permit both the parties to adduce both documentary as well as oral evidence in support of their contentions and then the matter be disposed of in accordance with law. I confirm the finding that the 2nd petitioner is not the son of 2nd respondent in the case. Parties are directed to appear before the Family Court on 15.2.2010. R.P.(F.C.) is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-