IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 3RD DECEMBER 2009 / 12TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 1933 of 2003() ------------------------------ MC.144/1996 of JUDL. MAGISTRATE OF FIRST CLASS COURT, PATTAMBI .................... REVN. PETITIONER(S): COUNTER PETITIONER: ---------------------------------------- BABU, S/O. VELAYUDHAN, THADATHIL HOUSE, PATTISSERI DESOM, CHALISSERY DESOM, OTTAPALAM TALUK. BY ADV. SRI.P.VIJAYA BHANU SMT.P.MAYA RESPONDENT(S): 2ND PETITIONER & STATE: -------------------------------------- 1. RESHMA (MINOR), REPRESENTED BY HER GUARDIAN (MOTHER) SAROJINI, D/O. VELAYUDHAN, KARIPPARAMBIL VEEDU, KAPPUR AMSOM DESOM, OTTAPALAM TALUK. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SMT.T.D.RAJALAKSHMI FOR R1 SRI.E.R.VENKATESWARAN FOR R1 GOVT. PLEADER SRI.AMJAD ALI THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.1933 OF 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of December, 2009 ORDER Revision petitioner is the counter petitioner in M.C.No.144/1996 of Judicial First Class Magistrate Court, Pattambi. He challenges the order of the learned Magistrate dated 12-6-2003 granting maintenance to the revision first respondent, his daughter at the rate of Rs. 350/- per mensum under Section 125 of Cr.P.C. 2. The revision first respondent, a minor represented by her guardian mother and the mother filed M.C.No.144/1996 before the Judicial First Class Magistrate Court, Pattambi claiming maintenance from the revision petitioner under Section 125 of Cr.P.C. The case of the revision first respondent as testified by PW1 her mother before the trial court in brief is this : PW1 married the revision petitioner about 5 years back and during their wedlock revision first respondent, a minor child was born. When the revision first respondent, the child was aged about 5 months, the revision petitioner illtreated PW1 and sent her out of the house. Crl.R.P.No.1933/2003 Thereafter the revision first respondent and her mother filed the M.C.for her maintenance. Revision petitioner is now residing with another lady. Revision petitioner is having an Autorickshaw and getting a daily income of Rs.250/ . Besides he is also having landed properties. 3. Initially the mother of the revision first respondent also claimed maintenance. She was shown as the first petitioner in the M.C. Subsequently she has given up her claim and claimed maintenance only for her child, revision first respondent. She claimed maintenance at the rate of Rs. 500/-per month. 4. Revision petitioner in his counter statement before the trial court contended that PW1 is the wife of one Unnikrishnan of Pattambi, that the revision first respondent is the child of the said Unnikrishnan, that the revision petitioner has no connection with PW1, that the revision petitioner is only a coolie earning Rs. 60/- per day. 5. Initially first petitioner in the M.C. who is the mother of the revision first respondent was examined as PW1 and Exts.P1 and P2 were marked . The revision petitioner was examined as CPW1 and he Crl.R.P.No.1933/2003 filed Ext.D1. The trial court by judgment dated October 29, 1998 allowed the petition and granted maintenance to the revision first respondent i.e. the second petitioner in the M.C. at the rate of Rs. 350/- per mensum. On revision by the revision petitioner before the Additional Sessions Court, Palakkad as Crl.R.P.No.6/1999, the said order was confirmed. As against that order, the revision petitioner filed Crl.M.C.No.5271/2000 before this court and this court by order dated February 20, 2003 set aside the orders of the trial court as well as the Sessions Court and remanded the case to the trial court for fresh disposal after giving opportunity to the parties to adduce further evidence if any. In that remand order, this court has found that as the marriage between PW1 and her first husband was not proved to be dissolved, the petitioner has to prove that he has no connection to each other at the time when the child was begotten. 6. After remand, PW2 the first husband of PW1 was examined . No further evidence was adduced by the revision petitioner. Learned Magistrate on an appreciation of evidence found that the revision first respondent was the daughter of revision petitioner and that he has Crl.R.P.No.1933/2003 sufficient means to pay maintenance to the revision first respondent and granted maintenance at the rate of Rs. 350/- per mensum. Now the counter petitioner in the M.C. has now come up in revision challenging the said order. 7. The following points arise for consideration : 1) Whether the revision petitioner is the father of the revision first respondent ? 2) Whether the revision first respondent is entitled to any maintenance from the revision petitioner ? 3) Whether the order of the lower court granting maintenance at the rate of Rs. 350/- per mensum to the revision first respondent can be sustained ? 8. Counsel for the revision petitioner argued that there is no reliable evidence to show that the marriage between PW1 and PW2 has been dissolved and that therefore it has to be presumed as provided under Section 112 of Evidence Act that the revision first respondent is Crl.R.P.No.1933/2003 the child of PW2. 9. Counsel for the revision first respondent supporting the order of the trial court would argue that the evidence of PW2 coupled with Ext.P2 report of DNA test clearly shows that the revision first respondent is the child of the revision petitioner and that therefore she is entitled to maintenance from revision petitioner. 10. It is not disputed that Ext.P2 report of DNA test shows that revision petitioner is the biological father of the revision first respondent. That apart, PW2 the first husband of PW1 has testified that his marriage with PW1 was dissolved customarily and thereafter he married another lady and he has three children in that wedlock and that after the marriage between himself and PW1 was dissolved, he has no access to PW1. He was extensively cross examined by the counsel for the revision petitioner before the trial court. But nothing was elicited in his cross examination to discredit his evidence. In my view, the evidence of PW2 coupled with Ext.P2 report of DNA test shows that PW2 has no access to PW1 when the revision first respondent was begotten and that the revision first respondent is the child of the Crl.R.P.No.1933/2003 revision petitioner. That being so, revision petitioner is bound to maintain revision first respondent. The finding of the learned Magistrate on this point is confirmed. 11. Regarding the quantum of maintenance, there is no document to show that petitioner is having any means . But PW1 testified that revision petitioner is an Auto rickshaw driver . Revision petitioner as CPW1 admitted that he is a coolie worker. As rightly pointed out by the learned Magistrate, a coolie worker can easily earn Rs. 150/- per day. Taking into consideration all these aspects, I feel that the maintenance awarded by the trial court at the rate of Rs. 350/- per mensum is quite reasonable. I find no reason to interfere with the quantum of maintenance awarded by the learned Magistrate. In the result, I find no merit in this revision petition and the same is hereby dismissed. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.1933/2003