IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 20TH AUGUST 2009 / 29TH SRAVANA 1931 RPFC.No. 305 of 2009() ---------------------- MC.94/2005 of FAMILY COURT, THIRUVANANTHAPURAM .................... REVISION PETITIONER/RESPONDENT: ------------------------------- SIVANKUTTY NAIR, S/O.BALAKRISHNAN NAIR, AGED 48, ALAKUNNAM, PAYAD P.O., THIRUVANANTHAPURAM. BY ADV. SRI.A.N.RAJAN BABU RESPONDENT/RESPONDENT: -------------------------- 1. MAHESWARY, AGED 36, D/O.SAROJINI, RESIDING AT SAROJALAYAM, ENCHIPULLUVILA JRA 70, PAPPANAMCODE P.O., THIRUVANANTHAPURAM. 2. ADARSH, RESIDING AT SAROJALAYAM, ENCHIPULLUVILA JRA 70, PAPPANAMCODE P.O., THIRUVANANTHAPURAM. 3. AJESH, RESIDING AT SAROJALAYAM, ENCHIPULLUVILA JRA 70, PAPPANAMCODE P.O., THIRUVANANTHAPURAM. THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 20/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- R.P.F.C.No.305 of 2009 --------------------------------------- Dated this 20th day of August 2009 ORDER This revision is in challenge of the order passed by the Family Court, Thiruvananthapuram in M.C.No.94 of 2005 directing petitioner to pay maintenance to the respondents at the rate of Rs.1000/- for respondent No.1 and Rs.750/- each for respondent Nos.2 and 3, per month. It is not disputed that petitioner married respondent No.1 on 23-03-1992 and that respondent Nos.2 and 3 are born during the time of the subsistence of that valid marriage. So far as the paternity of respondent No.2 is concerned there is no dispute. Petitioner disputed paternity of respondent No.3 who also was born indisputably in the wedlock. Respondents claimed that after the birth of respondent No.3 petitioner neglected and refused to maintain them. Petitioner also does not dispute the fact that after the birth of respondent No.3 he has not cared for the respondents. He admits that he has refused to take back respondents after the birth of respondent No.3, according to him for the reason that he is not the father of respondent No.3. It is the further case of respondents that petitioner is employed in Titanium Factory as Canteen Masdoor earning Rs.10000/- per month. Petitioner denied that and claimed that he was working in Kerala Special Refractory Limited as Peon and that firm having being closed he is now without any job. On the other hand respondent No.1 is earning R.P.F.C.No.305 of 2009 2 Rs.7500/- per month as a teacher. She has also landed properties and buildings in her name giving her an earning Rs.3500/- per month. Parties adduced evidence in support of their respective contentions. At one stage of the proceeding petitioner agreed to take back respondent Nos.1 to 3 if a DNA test is conducted and that report went in favour of respondent Nos.1 and 3. Accordingly, a DNA test was conducted. Ext.C1 is the report. That report revealed that petitioner is the biological father of respondent No.3. Petitioner backed out from his offer contenting that respondents managed to get a report like Ext.C1. Court below did not accept that contention and found that petitioner is the biological father of respondent No.3, is bound to maintain respondent Nos.1 and 3 and awarded maintenance as aforesaid. It is contended by learned counsel that finding of the court below is not correct. According to the learned counsel, a second DNA test is required. 2. Apart from contenting that DNA test report was managed by respondent Nos.1 and 3, no effort was made by the petitioner to prove or probabilise that contention. Ext.C1 remains as such. That apart, the birth of respondent No.3 was during the subsistence of a valid marriage and hence the conclusive presumption under section 112 of the Evidence Act stares at the petitioner. In defence, petitioner can only plead and prove non access during the relevant time. There is R.P.F.C.No.305 of 2009 3 no such evidence on record. Coupled with the conclusive presumption there is Ext.C1 also that petitioner is the biological father of respondent No.3. A further DNA test is not warranted or required. 3. What remains is only whether the amount awarded is excessive and beyond the reach of the petitioner. For respondent No.1, wife aged 30years at the time of application what is awarded is only Rs.1000/- per month. For respondent Nos.2 and 3 aged 12 and 4 years, respectively on the date of application the amount awarded is Rs.750/- each per month. Having regard to the basic needs of the respondents and the cost of living I am not inclined to think that the amount awarded is a luxury calling for interference at the instance of petitioner. 4. So far as capacity of petitioner to pay the said amount is concerned, respondents claimed that he is working in Titanium Factory as a canteen Masdoor. According to the petitioner, he was working in Kerala Special Refractory Limited as a Peon, that firm has been closed and hence he is without job. But in evidence he admitted that though at the time of marriage he was working in Kerala Special Refractory Limited, he moved to the Titanium Factory as canteen masdoor. Therefore the contention that on account of closure of Kerala Special Refractory Limited he lost his job is not correct. Even otherwise, he was aged 45 years at the time of application, not shown to be is R.P.F.C.No.305 of 2009 4 suffering from any physical or mental infirmity which prevented him from earning. He is able bodied and has to earn and maintain the respondents. There is no merit in this revision calling for interference. Resultantly revision petition fails. It is dismissed. THOMAS P JOSEPH, JUDGE Sbna/