IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 13TH AUGUST 2009 / 22ND SRAVANA 1931 RPFC.No. 163 of 2009() ---------------------- MC.209/2007 of FAMILY COURT, KOZHIKODE .................... REVISION PETITIONER/RESPONDENT ------------------------------ GANESH KUMAR, AGED 41 YEARS, S/O. SANKARAN, VAYAPPURATH HOUSE, EDAKKAD POST, KUNDOOPARAMBA, KOZHIKODE TALUK, (NADAKAVU POLICE STATION LIMIT) BY ADV. SRI.K.M.JAMALUDHEEN SMT.LATHA PRABHAKARAN RESPONDENT(S): PETITIONERS -------------------------- 1. KOMALAM, 35 YEARS, D/O. LATE BITHUNNI, MALAYIL HOUSE, KIZHAKOTH AMSOM AND DESOM, KOZHIKODE TALUK. 2. ANJU SAGARIKA, AGED 10 YEARS, D/O. GANESH KUMAR. 3. ARJUN, AGED 8 YEARS, S/O. GANESH KUMAR, 2ND AND 3RD MINORS REP. BY IST RESPONDENT MOTHER AS GUARDIAN ADV. SRI.SANTHARAM.P FOR R1-R3 THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 13/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.P.(FC) No.163 of 2009 -------------------------------------- Dated this the 13th day of August, 2009. ORDER Heard both sides. 2. This revision is at the instance of the husband who has been directed by the order under challenge to pay maintenance to the respondents the aggregate amount per month being Rs.2,100/-. It is not disputed that petitioner married respondent No.1 on 7.4.1996. Respondent Nos.2 and 3, daughter and son are born concededly in the wedlock and at a time when marriage between petitioner and respondent No.1 subsisted. Respondent No.1 alleged that petitioner ill-treated her and ultimately, she had to withdraw to her parental home on 25.1.2005. Respondents alleged that petitioner neglected and refused to maintain them. According to them, petitioner is earning Rs.6,000/- from his landed properties and is a painter by occupation. Petitioner denied paternity of respondent No.3. He claimed that respondent No.1 has unholy affair with the husband of her elder sister. He denied that he subjected respondent No.1 to ill-treatment. His capacity to pay maintenance as pleaded by respondents is also denied. He filed O.P.N0.349 of 2007 seeking divorce on the ground that respondent No.1 living in adultery and O.P.No.864 of 2007 for custody of respondent No.2. In the court below both sides adduced evidence. Evidence was recorded in the petition for divorce. Petitioner gave RP(FC) No.163/2009 2 evidence as PW1 and asserted that respondent No.1 has unholy affair with the husband of her elder sister. He denied paternity of respondent No.3. Though he produced chief affidavit of his witnesses, PWs 2 and 3 supporting his case that respondent No.1 has illicit intimacy with the husband of her elder sister, when PWs 2 and 3 were put in the box they denied that they had any such information. Respondent No.1 mounted the witness box and denied that there was any such affair between her and husband of her elder sister. Petitioner also made an attempt, notwithstanding Section 112 of the Indian Evidence Act (for short, “the Act”) to prove that he is not the biological father of respondent No.3 by getting a DNA test conducted as per the order of the court below. Ext.X1 is the test report which states that petitioner is the biological father of respondent No.3. Court below accepted the evidence of respondent No.1 and negatived the contention of petitioner. He was directed to pay maintenance as aforesaid. It is contended by learned counsel that petitioner was not obliged to pay maintenance to respondents. At any rate, maintenance awarded is excessive and the very fact that respondent No.1 had not claimed any interim maintenance indicated that atleast during the pendency of the petition in the court below she was able to maintain herself and respondent Nos.2 and 3. Learned counsel for respondents submitted that there is no reason to interfere with the order under challenge. RP(FC) No.163/2009 3 3. As aforesaid there is no dispute that there is a valid marriage between respondent No.1 and petitioner and that respondent No.2 is born during the wedlock when the marriage was subsisting. Section 112 of the Act provides for a conclusive presumption as per which petitioner must be taken as the biological father of respondent No.3 leaving it open to the petitioner to prove non access during the time respondent No.3 was begotten. In this case not only that there is no evidence to show such non access and during the time respondent No.3 was begotten, it is proved that during then respondent No.1 was staying with petitioner and at her parental home. Apart from that, there is the report of DNA test which proves that petitioner is the biological father of respondent No.3. Finding of court below that petitioner is the father of respondent No.3 is therefore based on the conclusive presumption which is not rebutted as well as evidence on record which does not require interference. 4. What remained for consideration is only whether maintenance awarded to the respondents is excessive. At the time of filing petition for maintenance respondents were aged 35, 10 and 8 years, respectively. To them what is awarded is Rs.1,000/-, Rs.600/- and Rs.500/- respectively, per month. Having regard to the basic needs of the respondents and cost of living I am not persuaded to think that the amount awarded is a luxury. 5. On the question whether the amount awarded is beyond the reach of petitioner, it is not disputed that he is a painter by occupation and now aged about 41 years. Considering the labour charges payable to manual labourers in RP(FC) No.163/2009 4 this part of the country and the fact that petitioner is able-bodied, capable of earning and is a skilled worker, I find no reason to think that the amount awarded is beyond his reach. That, respondents did not claim and obtain interim maintenance during the pendency of the proceeding in the court below in my view cannot indicate that they were otherwise capable of maintaining themselves. I find no reason to interfere with the order under challenge. Resultantly, this revision petition fails. It is dismissed. THOMAS P.JOSEPH, Judge. cks