IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 1ST JULY 2009 / 10TH ASHADHA 1931 Mat.Appeal.No. 452 of 2009() ---------------------------- OP.613/2008 of FAMILY COURT, MALAPPURAM .................... PETITIONER(S): APPELLANT/RESPONDENT ----------------------------------- P.MOHAMED YOUSUF ALIAS YOUSUF, AGED 43 YEARS,S/O.ALIHAJI, PAVASANKATHU HOUSE, JANATHA BAZAR, NIRAMARUTHOOR AMSOM DESOM, NIRAMMARUTHOOR P.O. TIRUR TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.K.M.FIROZ RESPONDENT(S): APPELLANT ------------------------ SUFAINATH, AGED 14 YEARS, REP.BY HER MOTHER AND GUARDIAN CHAKKATTU MUKKIL FATHIMA, AGED 35 YEARS, D/O.ABDULLA, KALADI AMSOM, DESOM, NADAKKAVU, KALADI P.O. PONNANI TALUK, MALAPPURAM DISTRICT. THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 01/07/2009, ALONG WITH RPFC NO. 170 OF 2009 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT & M.C.HARIRANI, JJ. * * * * * * * * * * * * * Mat.Appeal No.452 of 2009 & R.P.F.C.No.170 of 2009 ---------------------------------------- Dated this the 1st day of July 2009 J U D G M E N T BASANT,J The appellant/revision petitioner herein challenges a common order passed by the Family Court, Malappuram directing payment of past maintenance under the civil law and future maintenance under Section 125 Cr.P.C at the rate of Rs.1,200/- per mensum to the claimant, allegedly the daughter of the appellant/petitioner. 2. On fundamental facts, there is no dispute before us. The mother of the claimant/minor child was married to the appellant/petitioner on 13/5/1991. The claimant/child was born on 18/1/1996. Marriage was dissolved by pronouncement of talaq long later. The minor child represented by her mother claimed maintenance past and future from its father. 3. The claim for maintenance was resisted on various grounds. It was first of all suggested that the appellant/petitioner is not the father of the child. Alternatively, Mat.Appeal 452 & R.P.F.C 170 of 2009 2 it was contended surprisingly that the duty to maintain the child has been discharged by execution of Exts.B3 and B4 documents in favour of he mother of the child. Quantum of maintenance claimed was excessive, it was contended. Parties went to trial on these contentions. The mother of the child examined herself as PW1 and the appellant/petitioner herein examined himself as RW1. Exts.B1 to B4 were marked. Exts.B1 and B2 are documents produced to show that the appellant/petitioner earns an income of Rs.950/- per mensum only from his employment as a teacher in a Madrassa. Exts.B3 and B4 are documents executed by the appellant/petitioner in favour of the mother of the child. 4. The Family Court found the contentions raised by the petitioner to be unsustainable. Accordingly, the court proceeded to pass the impugned common order. 5. R.P.F.C.No.170/09 has been admitted already by another Bench. When Mat.Appeal No.452/09 came up for hearing, detailed arguments were heard in both these matters. We are not satisfied that these matters deserve to be pending before this court any longer. We are satisfied that the contentions can be considered on merits and the matter can be Mat.Appeal 452 & R.P.F.C 170 of 2009 3 disposed of straight away. 6. The first contention raised is about paternity. Less said about this plea the better. Marriage took place on 13/5/1991. Child was born on 18/1/1996 and the divorce took place long later. The presumption under Section 112 of the Evidence Act stares at the appellant/petitioner. Non access is the only plea by which he can rebut the conclusive presumption under Section 112 of the Evidence Act. There is not a scintilla of valid pleadings of evidence to show that there was non-access at the time when the child could have been begotten. The fact that the marriage continued for some period after child birth is also an indication of the emptiness of the plea raised. 7. The learned counsel for the petitioner submits that in this appeal, he may be permitted to produce documents. What are the documents? The appellant/petitioner wants to produce documents to show that he is impotent. Such a plea was not specifically raised nor there was any evidence adduced in support of such plea. The belated attempt made now to raise the plea of non-access on the ground of impotency of the petitioner has no legs to stand on. The same only deserves to be rejected. Mat.Appeal 452 & R.P.F.C 170 of 2009 4 8. The second plea raised is that the duty to maintain the child is sufficiently discharged by the assignments made by Exts.B3 and B4. The learned counsel for the appellant was specifically queried as to whether there is any recital in Exts.B3 and B4 to show that the duty to maintain the child was discharged thereby. Admittedly there is no such recital in Exts.B3 and B4. There are no other documents to show that the consideration for the assignments in Exts.B3 and B4 is the duty to maintain the child till it attains majority. In these circumstances, the 2nd contention raised must also fall to the ground. 9. Thirdly and lastly, it is contended that the direction to pay an amount of Rs.1,200/- per mensum is excessive. Going by the needs of the child - admittedly a child aged 13 years, the amount of Rs.1,200/- awarded cannot be said to be excessive. The court is entitled to take into account realistically common course of events. Considering the cost of living index and the price of commodities and the needs of a 13 year old child, the amount of Rs.1,200/- can only be said to be absolutely fair, reasonable and just. The appellant admittedly has an employment. He wants the court to believe on the basis of Mat.Appeal 452 & R.P.F.C 170 of 2009 5 Exts.B1 and B2 that his total monthly income is Rs.950/- only. He is a young man aged 42 years. One fails to understand why he should continue on such employment drawing only an amount of Rs.950/- per mensum if actually that were his income. The court below took note of the fact that even going by his evidence, the teaching assignment in the Madrassa consumes only two hours a day. He has the rest of the day available to him. He is shown to be an able bodied person. He must work, earn his livelihood and support his child. Even as against such an able bodied person who has no stable employment, the amount of Rs.1,200/- per mensum awarded to the claimant do not appear to be excessive as to warrant appellate or revisional interference. It follows that there is no merit in the challenge raised in this appeal and R.P.F.C. 10. Mat.Appeal and R.P.F.C are hence dismissed. (R.BASANT, JUDGE) (M.C.HARIRANI, JUDGE) jsr Mat.Appeal 452 & R.P.F.C 170 of 2009 6 Mat.Appeal 452 & R.P.F.C 170 of 2009 7 Mat.Appeal 452 & R.P.F.C 170 of 2009 8 R.BASANT & M.C.HARIRANI, JJ. .No. of 200 ORDER/JUDGMENT 18/06/2009