IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 16TH MARCH 2010 / 25TH PHALGUNA 1931 RPFC.No. 454 of 2007() ---------------------- MC.81/2006 of FAMILY COURT, THODUPUZHA .................... REVISION PETITIONER/COUNTER PETITIONER: ---------------------------------------------------------------------- BIJI VARGHESE, S/O.VARGHESE, AGED 32 YEARS, NAGAROOR HOUSE, VIMALAGIRI KARA, UPPUTHODU VILLAGE, UDUMBANCHOLA TALUK, VIMALAGIRI P.O., IDUKKI DIST. BY ADVS. MR.JOHNSON P.JOHN, MR.RAJU VADAKKEKARA. RESPONDENT(S): PETITIONERS & STATE: --------------------------------------------------------------- 1. SINDHU, D/O.PATHROSE, AGED 27 YEARS, KOLATHINALPADAM HOUSE, POOMANKANDOM KARA, VATHIKUDY VILLAGE, UDUMBANCHOLA TALUK, RAJAPURAM P.O., IDUKKI DIST. 2. BRIJIT, MINOR, REPRESENTED BY THE MOTHER THE IST RESPONDENT. 3. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 & R2 BY ADV. MR.GEORGEKUTTY MATHEW R3 BY PUBLIC PROSECUTOR MR. BENNY VARGHESE THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 16/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss ORDER ON CRL.M.A.NO.11381/2007 IN RP(FC) NO.454/2007 DISMISSED 16/03/2010 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.A.TO JUDGE Kss M.N. KRISHNAN, J. ........................................... R.P.(F.C).No.454 OF 2007 ............................................. Dated this the 16th day of March, 2010. O R D E R This revision is preferred against the order of the Family Court, Thodupuzha in M.C.No.81/2006. The maintenance petitioners moved an application against the respondent claiming maintenance to the 2nd petitioner as the child of the respondent and the family court granted maintenance at the rate of Rs.1,250/= per month. It is against that decision, the revision is preferred by the husband. 2. Heard. Admittedly there is no marriage between the first petitioner and the respondent. According to the first petitioner in the MC, she had come to the house of the respondent to look after the young children of his brother and during her stay there, the respondent had sexual act with her with her consent as a result of which, she became pregnant and gave birth to the second petitioner on 5.9.2004. On the other hand, the respondent would contend that though she was staying in the house of the respondent, there was no such relationship between the two and he cannot : 2 : R.P.(F.C).No.454 OF 2007 be conferred the paternity of the child. 3. The evidence available in the matter is the evidence of PW1 and CPW1. The first petitioner moved an application for the conduct of DNA test and it was allowed by the court. But the respondent in the MC did not co-operate and therefore, it could not be conducted. If the respondent was so sure that he is not the father of the child, what prevented him from going for a DNA test is a big question that has to be considered in the backdrop of the evidence adduced by PW1. I state so only for the reason that it is not on the basis of an adverse inference the finding is arrived at, but it is arrived at on the basis of the conduct of the revision petitioner and also in the backdrop of the evidence of PW1. The child was born on 5.9.2004 and most probably that is why the revision petitioner wanted to curtail the period of stay of the lady up to 15.11.2003 onwards. But the lady would contend that she was there up to 15.12.2003. PW1 had deposed that during her stay in the house there had been several sexual acts and even she was taken to a lodge and she had been subjected to sexual intercourse. A : 3 : R.P.(F.C).No.454 OF 2007 child is born and the father of the child is shown as the revision petitioner. 4. So, the factum that the lady was staying in the house of the respondent, non co-operation of the revision petitioner to go for a DNA test as well as the size of the family house all weighed with the family court to arrive at a decision that preponderance of probability weigh with the version of PW1 rather than CPW1. There is no mis-appreciation of evidence or misapplication of law which requires interference in the revisional jurisdiction on the said finding of fact. 5. Now turning to the quantum. It has come out in cross examination that there is one acre of land in the name of the mother. There is a land phone, mobile phone and a two wheeler driving licence for the person. This man had married in 2006 and he is staying comfortably with the wife. The child at the time of filing of the application is two years. Taking into consideration all these facts, I am inclined to show slight leniency by reducing the quantum from Rs.1,250 to Rs.1,000/=. 6. Therefore the revision is disposed of by modifying : 4 : R.P.(F.C).No.454 OF 2007 the order of maintenance per month from Rs.1,250/= to Rs.1,000/= payable from the date of petition and it shall be received by the mother of the child. Disposed of accordingly. M.N. KRISHNAN, JUDGE cl : 5 : R.P.(F.C).No.454 OF 2007