IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 17TH FEBRUARY 2010 / 28TH MAGHA 1931 RPFC.No. 351 of 2009() ----------------------------------- MC.229/2006 of OF THE FAMILY COURT, KASARAGOD .................... REVISION PETITIONER/RESPONDENT ---------------------------------- C.A.MOHAMMED MUSTHAFA, S/O.S.M.AHAMED, PUTHIYAVALAPPIL HOUSE, P.O.CHANDRAGIRI, KALNAD VILLAGE, KASARAGOD TALUK. BY ADVS.MR.K.V.SOHAN SMT.SREEJA SOHAN.K. RESPONDENT(S): PETITIONERS -------------------------- 1. K.A.AYSHA, D/O.PAYIKARA HASSAINAR, CHATHANKAI, P.O.CHANDRAGIRI, KALNAD VILLAGE, KASARAGOD TALUK. 2. MUFAISA C.M., D/O.K.A.AYSHA, AGED 11 YEARS(MINOR), REP. BY HER MOTHER GUARDIAN NO.1, K.A.AYSHA, DO. DO. 3. ABDUL RAHIMAN BASTHITH C.M., S/O.K.A.AYSHA, AGED 7 YEARS, (MINOR), REP. BY HIS MOTHER GUARDIAN NO.1, K.A.AYSHA, DO. DO. THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 17/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.MA. NO.9091/2009 IN RP(FC) NO.351/2009 DISMISSED 17/02/2010 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE tss M.N. KRISHNAN, J. ........................................... R.P.(F.C).No.351 OF 2009 ............................................. Dated this the 17th day of February, 2010. O R D E R This revision is preferred against the order of the Family Court, Kasaragod in M.C.No.229/2006. The petitioners therein claimed to be the wife and children of the respondent therein had claimed maintenance. The family court ordered maintenance at the rate of Rs.2,000/= to the wife and Rs.1,000/= each to the children. It is against that decision, the husband has come up in revision. 2. Heard the learned counsel for the revision petitioner. The other side is not represented. I had perused the records. The facts of the case would really shock the human conscience for the reason that it cuts at the root of the morality in the society which has been downgraded by this incident. I do not want to add anything further. 3. The first petitioner in the M.C was admittedly the wife of one Abdul Rahiman and a child was born during the subsistence of the marriage with Abdul Rahiman. The child was born on 19.10.1998 and even the marriage with the : 2 : R.P.(F.C).No.351 OF 2009 revision petitioner took place on 3.10.1999, in other words, at the time of the marriage, there was a child with her. But the wife took the stand that during the subsistence of the marriage with the said Abdul Rahiman, the revision petitioner, who is the nephew, came to the house and that ended in the relationship and thereafter she begotten a child. But, it is admitted that they had married from the gulf country. So, naturally there will be a situation where one will suspect since a child is born during the subsistence of the previous marriage. A presumption will be with respect to that with the husband and not otherwise. The interesting feature in this case is that the wife took the bold step of taking DNA test which the husband initially did not. When he came to the High Court, this Court ordered that he need not undergo DNA test with the observation of adverse inference. But, he changed his attitude and ultimately had undergone the DNA test. The DNA test proved that he is the biological father of the first child. We can take into other things into consideration. A lady cannot hide a child that too a child who is hardly about 6-7 months and with : 3 : R.P.(F.C).No.351 OF 2009 that child this man admittedly had taken the lady as his wife by performing the marriage in gulf country or in other words he was totally aware of existence of the first child and with that child, he had married her and under ordinary human course of conduct, no man would venture to it unless he is satisfied about what is spoken to by the wife. So, it is very clear that this man had relationship with her and a child was begotten and subsequently they got married and therefore it is very sad on the part of the husband to contend for the position that the first child is not of him. The family court has correctly analysed and found that he is the father. There is no dispute regarding the paternity of the second child. Attribution of unchastity on a lady is very cruel and that itself is sufficient to live separately especially in the back drop that he had again married another lady. Therefore, I uphold the finding of the family court that the wife and children are entitled to maintenance. 4. The next question is regarding the quantum. In almost all family court matters the difficulty is to find out the approximate income to fix the liability. Admittedly the : 4 : R.P.(F.C).No.351 OF 2009 husband was in gulf and even the marriage had taken place at abroad. Therefore even if he is not there at this point of time he was a man who is employed in gulf country with some income. The conduct of the man again reveals that he is having sufficient strength to maintain a lady in spite of his arrival back to India. This matter also has to be taken into consideration. 5. But the argument of the learned counsel for the petitioner that there is no precise material to fix the income. It has also to be stated that the wife was not loyal to her first husband is also evidenced by the materials before the court. 6. So taking note of the entire materials, I am of the view that justice can be met by directing the revision petitioner to pay maintenance at the rate of Rs.1,500/= to the wife and Rs.800/= to the first child and Rs.600/= to the second child and let it be paid from the date of petition and the amount already paid or deposited shall be deducted and only the balance be paid. If it is settled out of court, parties are given opportunity to move the family court : 5 : R.P.(F.C).No.351 OF 2009 again under Section 127 of the Cr.P.C for cancellation of the award. Disposed of accordingly. M.N. KRISHNAN, JUDGE cl : 6 : R.P.(F.C).No.351 OF 2009