IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 12TH FEBRUARY 2008 / 23RD MAGHA 1929 RPFC.No. 38 of 2008() --------------------- MC.380/2003 of THE FAMILY COURT, KANNUR .................... REVISION PETITIONER/PETITIONERS ------------------------------------------------ 1. V.RAMSHEENA, D/O.VILLAN HUSSAIN, PARAKKANDI VEEDU, NALANKERI, P.O.PORARA, KANNUR DISTRICT. 2. SALMAN FARIS, S/O.V.RAMSHEENA, AGED 4 YEARS AND 4 MONTHS, (MINOR) REPRESENTED BY THE FIRST APPELLANT. BY ADV. SRI.P.M.PAREETH RESPONDENTS: COUNTER PETITIONER ------------------------------- PUTHUKKALAN SAKKARIYA, S/O.NAROTH YOUSUF, AGED 26 YEARS, NALANKERI, P.O.PORARA, KANNUR DISTRICT. BY ADV. SRI.C.P.PEETHAMBARAN THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 12/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - R.P.F.C.No. 38 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 12th day of February, 2008 O R D E R This Revision Petition is directed against an order passed by the Family Court dismissing the application filed under Section 125 Cr.P.C. by the claimant, a four months old minor child, through its guardian and mother, claiming maintenance at the rate of Rs.600/- p.m. from the respondent herein. 2. The mother of the child/PW1 claimed that she had conceived the petitioner in the sexual relationship which she had with the respondent. They are neighbours. There is no contention that there was any love lost between them. The very specific contention is that the respondent trespassed into the house and committed rape on the claimant's mother/PW1. The respondent denied the allegation altogether and contended that he had not committed rape on PW1. 3. The parties went for trial on these contentions. The mother of the claimant examined herself as PW1. Her father R.P.F.C.No. 38 of 2008 2 was examined as PW2. Ext.P1, birth certificate showing the name of the respondent as the father of the child in the birth register, was produced. The respondent examined himself as CPW1. He denied the allegation that he had ever had sexual relationship with PW1. The DNA test was got conducted and Ext.C1 report was made available to the Court. That scientific evidence shows that the respondent is not the father of the claimant child. 4. The learned Judge of the Family Court, in these circumstances, did not choose to accept and act upon the oral evidence of PW1 that she had conceived the child in the forcible sexual intercourse which the respondent had with her. PW2, as stated earlier, is the father of PW1 and his information is limited to what PW1 had conveyed to him. 5. The learned Judge in these circumstances came to the conclusion that the claim under Section 125 Cr.P.C. only deserves to be dismissed. The petitioner claims to be aggrieved by the impugned order. R.P.F.C.No. 38 of 2008 3 6. What is the grievance? The learned counsel for the petitioner urges a contention that the Family Court does not have jurisdiction to consider a dispute regarding legitimacy of the child. He has relied on the decision in Bharat Kumar v. Selma Mini (2007 (1) KLT 945). I am afraid the said decision can have absolutely no application to the facts of the case. The instant one is a claim under Section 125 Cr.P.C. and the Family Court has undoubted jurisdiction under Section 7(2)(a) to consider and dispose of any application filed under Section 125 Cr.P.C. even when the claim is made by an illegitimate child asserting to be the child of the respondent. In the light of Section 7(2)(a) this contention can have no legs to stand on and the decision in Bharat Kumar has no application in the present case. 7. The learned counsel next contends that the learned Judge erred in not accepting the claim of PW1 that the claimant child was conceived in her relationship with the respondent. The learned Judge, I find, has dealt with the question in detail. The learned Judge has referred to the improbability and artificiality of the case set up by PW1 that she was raped by the respondent in the manner alleged by her. It is R.P.F.C.No. 38 of 2008 4 significant to note that admittedly there is no legal marriage. Admittedly PW1 and CPW1, though neighbours, were not in love. Admittedly it was not a case of sexual intercourse with the consent of PW1 and CPW1 so as to justify the case of PW1 that she did not reveal it to any one until the pregnancy had advanced. I am satisfied in the totality of circumstances that the evidence of PWs 1 and 2 is insufficient to establish the case of the claimants that the child was born in the sexual intercourse between PW1 and CPW1. The DNA test was conducted and Ext.C1 report has been marked. No evidence has been adduced to challenge the said report. The learned counsel, before me, contends that the test was not properly conducted and the blood samples were not properly drawn. Even Ext.C1 were discarded in its entirety, the conclusion appears to be inescapable that the claimants have not succeeded in proving that the respondent is the father of the claimant child. In any view of the matter, the impugned order does not hence warrant interference. 8. The learned counsel submits that the option of the claimants to seek appropriate declaration from the competent civil court may be R.P.F.C.No. 38 of 2008 5 left open. It is by now trite that in proceedings under Section 125 Cr.P.C. disputed questions of status are not finally determined by the court exercising jurisdiction under Section 125 Cr.P.C. A dispute regarding paternity can certainly be raised before appropriate civil court. The order passed under Section 125 Cr.P.C. may at worst cast a cloud on the disputed status. But such cloud can be sought to be removed by a properly instituted suit for declaration of status. Needless to say, dismissal of the petition under section 125 Cr.P.C. or this revision petition by this Court will not fetter the rights of the claimants to get the dispute resolved by initiating proceedings before competent civil courts. This Revision Petition is accordingly dismissed. (R. BASANT) Judge tm