IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 1ST MARCH 2010 / 10TH PHALGUNA 1931 RPFC.No. 33 of 2007() --------------------- MC.364/2001 of FAMILY COURT, ERNAKULAM .................... REVISION PETITIONER/ 1ST PETITIONER. -------------------------------------------------------- KUTTIYAMMA @ KUNJUMOL, AGED 40 YEARS, W/O.JOSEPH, PLAKKAL HOUSE, AMBALAMEDU P.O., KUZHIKKADU. BY ADV. SMT.J.SHEEBA MARIAM RESPONDENT(S): RESPONDENT/RESPONDENT & PETITIONERS 2 TO 4. ---------------------------------------------------------------------------------- 1. JOSEPH, PLAKKAL HOUSE, C/O.THANKAMMA HABEL,PLAKKAL, POTTAMALA P.O., OLIPPONI, IDUKKI DISTRICT. 2. DINCE, AGED 18 YEARS, S/O.KUTTIYAMMA @ KUNJUMOL, PLAKKAL HOUSE, AMBALAMEDU P.O., KUZHIKKADU. 3. PRINCE, AGED 15 YEARS, -DO- 4. JINS, AGED 15 YEARS, -DO- THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 01/03/2010, ALONG WITH RPFC NO. 319 OF 2007 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = = R.P.(F.C.) NOs. 33 & 319 OF 2007 = = = = = = = = = = = = = = = Dated this the 1st day of March, 2010. O R D E R R.P.(FC) 33/07 is filed by the first petitioner in the M.C. against dis-allowance of maintenance to her and R.P.(FC) 319/07 is filed by the respondent in the case against the grant of maintenance to the petitioners 2 to 4 in M.C.364/01. The brief facts would reveal that the respondent in the M.C. is disputing everything including the husband and wife relationship as well as the paternity of the children. On the other hand the first petitioner would contend that she had married the respondent on 13.5.87 and in the matrimonial relationship three children had been born and therefore they are entitled to maintenance. 2. It is better to proceed to consider the question of legality of the marriage. It has come out that the first petitioner in the M.C. had married one Varghese Kuttikadan. It is also admitted by her that there was such a marriage and that marriage is not dissolved by any Court of law. It is R.P.(F.C.) NOs. 33 & 319 OF 2007 -:2:- submitted by the first petitioner in the M.C. that the said Varghese Kuttikadan abandoned her and thereafter he died. If he died prior to the alleged contract of marriage with the respondent herein then certainly if the marriage is proved it would entitle her to claim the status of the wife and maintenance. A perusal of the order of the Family Court would reveal that absolutely no scrap of paper was produced before the Court to show regarding the death of this Varghese Kuttikadan and it is seen from the order that he was summoned and it appears that he had been served but did not attend the Court. So unless and until the factum of death of this Varghese Kuttikadan is proved under the Christian law as well one lady cannot marry twice and if the marriage had taken place during the subsistence of the first marriage it is void and so I cannot find fault with the Family Court for rejecting her status as a wife in this case. 3. Now the 2nd question is regarding the children. The respondent in the M.C. had taken an attempt of denying everything. The Family Court had discussed the matter R.P.(F.C.) NOs. 33 & 319 OF 2007 -:3:- regarding the children and A4 is a photograph wherein the respondent in the M.C. is seen in the company of the petitioner and children. It is also stated therein it is an admitted one. Ext.A6 document reveal that the name of father relating to the 2nd petitioner is stated as P.H. Joseph who is none other than the respondent in the M.C. The name of the mother is also clearly shown in the document. The necessary details for Ext. A6 which is required at the time of the admission was given by the respondent herein according to PW2. There was an argument regarding the presumption by the counsel for the respondent in the M.C. It was the contention that as there is no divorce or as the death is not established it has to be presumed that there is a valid marriage in subsistence between Varghese Kuttikadan and the lady namely the first petitioner and therefore the presumption as contemplated u/s 112 of the Evidence Act would prevail. It has to be stated that Varghese Kuttikadan is not shown as her father. There is nothing to show that he had any access to this lady. So the presumption may not loom large whereas R.P.(F.C.) NOs. 33 & 319 OF 2007 -:4:- the convincing evidence made use of by the Family Court would reveal that the paternity of the children are only to be confirmed. Why should this man be in the photograph along with the lady if there is nothing to do with her. So it is only an attempt to get out of the liability to maintain and therefore as discussed and found by the Family Court I hold that the children are entitled to maintenance. 4. So far as the quantum is concerned with the available materials the Family Court has fixed the amount and therefore I do not want to disturb it but when there is change of circumstances the children can certainly move u/s 127 Cr.P.C. for enhancement of the maintenance. In the result both the revisions are dismissed. M.N. KRISHNAN, JUDGE. ul/-