IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 3RD OCTOBER 2011 / 11TH ASWINA 1933 RPFC.No. 159 of 2009() ---------------------- MC.42/1995 DATED 11/7/08 BY THE FAMILY COURT, THRISSUR. .................... REVISION PETITIONER/PETITIONER (S): ----------------------------------- NAKULAN, S/O PALLATH AYYAPPANKUNJI, PERINJANAM VILLAGE DESOM, KODUNGALLUR TALUK. BY ADV. SRI.M.SHAJU PURUSHOTHAMAN SRI.K.S.RAJESH RESPONDENT(S): -------------------------- 1. AMBIKA,D/O PALLAYI AYYAPPANKUNJI, PERINJANAM VILLAGE DESOM, KODUNGALLUR TALUK. 2. GREESHMA, D/O AMBIKA, PERINJANAM VILLAGE DESOM, KODUNGALLUR TALUK. ADV. SRI.P.VIJAYA BHANU FOR R1& 2 SRI.P.M.RAFIQ FOR R1 PUBLIC PROSECUTOR, SRI.SABU SREEDHARAN THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 03/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: SU R.P.F.C.NO.159/2009 APPENDIX PETITIONER'S ANNEXURES: NIL. RESPONDENTS' ANNEXURES: ANNEXURE A- COPY OF THE MEDICAL CERTIFICATE ISSUED BY THE MEDICAL BOARD EVIDENCING THE FACT THAT THE 1ST RESPONDENT IS SUFFERING FROM 40% VISUAL DISABILITY. /TRUE COPY/ P.A. TO JUDGE SU S.S.SATHEESACHANDRAN, J. ------------------------------------------------------ R.P.(FC) No.159 of 2009 -------------------------------------------------------- Dated this the 3rd day of October, 2011. ORDER The respondent in a proceeding under Section 125 of the Code of Criminal Procedure has filed this revision challenging the order of the learned Judge, Family Court, Thrissur, directing him to pay maintenance to the petitioners in the aforesaid proceedings who claimed to be his wife and child. Claim of the respondents in the revision, hereinafter referred to as the petitioners, was resisted by the revision petitioner who is hereinafter referred to as the husband, denying his marital relationship with the first petitioner and also the paternity of the second petitioner. He contended that two years prior to the date of marriage alleged with the first petitioner, he had entered into a legally wedded marriage with one Prema and that in such relationship he has got two children. The first petitioner is not his legally wedded wife, and 2nd petitioner not his child, was his case. The learned counsel for the husband would state that though grounds R.P.(FC) No.159 of 2009 2 are canvassed in the revision to impeach the maintenance awarded to the child that is not pressed, and the awarding of maintenance to the child holding that he is her biological father is not disputed. Challenge in the revision, it is submitted by the counsel, is only against the awarding of maintenance to the first petitioner disputing her status as his wife. 2. The proceedings by way of revision as between the parties are coming before this Court for the third time, with the previous two revisions having been filed by the petitioners, wife and child, against the dismissal of their claims. Disposing the last revision, R.P(FC) 16 of 2002, by order dated 5.4.2005, this Court directed for determining the paternity of the second petitioner allowing the application moved by the petitioners for having a DNA test. Pursuant to such test disclosing that the revision petitioner is the biological father of the second petitioner child, the court below has upheld the claim of the petitioner for maintenance from him. So far as the finding made by the court below on the basis of the DNA test that the Second petitioner is the child of the revision petitioner and, thus, awarding maintenance R.P.(FC) No.159 of 2009 3 to her, as already indicated, there is no challenge at all. The only question is whether the first petitioner, the mother of that child, is the wife of the revision petitioner. Her status as his wife was challenged setting forth a case that two years before her claim of having a marriage with him, revision petitioner had married another lady by name Prema and he has got two children born out of that relationship. The extracts of the birth certificates of those children were produced by the revision petitioner to substantiate the challenge so canvassed. Second petitioner was born in 1989 and the children born to him out of his relationship with Prema were born in 1982 and 1988 respectively were thrust upon to contend that his marriage with Prema had preceded whatever relationship he had with the first petitioner. This Court disposing the previous revision took note of the defence so projected with reference to the birth certificate of the children born to the revision petitioner through Prema and observed that it would not clinch the issue involved. The earlier dismissal order rendered by the court below was set aside with observations that the status of the second petitioner after conducting of DNA test, R.P.(FC) No.159 of 2009 4 determining whether she is the child born to the revision petitioner, with other proved facts and circumstances involved in the case, would be decisive to resolve the controversy. Parties were given opportunity to bring in fresh materials, after remission, to substantiate their respective case. After such remission, it appears, other than conducting of the DNA test over the blood sample of the child with that of the revision petitioner no more evidence was let in by both sides. The DNA test revealed that second petitioner was born to the first petitioner out of her relationship with the revision petitioner, who has been proved to be the biological father of that child. The crucial question whether the revision petitioner married Prema in 1978, as contended by him, two years prior to his marriage with first petitioner, as claimed by her, was not established by any material. The evidence let in on behalf of the first petitioner, it was found by the court below, was sufficient to accept her case that her marriage with revision petitioner took place in 1980 in accordance with the rites and custom of the parties. The evidence of PW3, who, at the time of examination, was aged 71 years, was found sufficient by the court below to uphold R.P.(FC) No.159 of 2009 5 the case of the first petitioner that her marriage with the revision petitioner took place in the year 1980. That finding of fact entered by the court below appreciating the materials in a proceeding under Section 125 of the Code is not liable to be disturbed unless it is shown to be suffering from serious infirmity to hold that the conclusion formed is perverse and unacceptable. Merely because the revision petitioner is having relationship with another woman, even if it be by way of marriage, and he has got two children in that relationship, it does not follow that such relationship was on the basis of a legally wedded alliance with that lady which had commenced prior to the marriage with the first petitioner in the case. He has set up a definite case that his marriage with Prema was in the year 1978. To establish that case other than his oral evidence nothing more was produced except the extract of the birth certificates of the two children, which as already indicated, both of them, born on or after 1980. When such be the case, the challenge against the order of the court below granting maintenance to the first petitioner accepting her case that a marriage as claimed by her took place between her and the revision R.P.(FC) No.159 of 2009 6 petitioner in the year 1980, in the back drop of the finding entered that the revision petitioner is the biological father of the second petitioner, and also absence of any convincing evidence to sustain the version that his marriage with Prema was in the year 1978, has necessarily to fail. The quantum of maintenance awarded to the wife and child till the date of the order of court below is only Rs.300/- per month and thereafter at the rate of Rs.500/- per month. That also cannot be stated to be excessive or unreasonable. There is no merit in the revision, and it is dismissed. S.S.SATHEESACHANDRAN, JUDGE mns