IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 1ST SEPTEMBER 2008 / 10TH BHADRA 1930 RPFC.No. 24 of 2004() --------------------- MC.193/1996 OF THE FAMILY COURT, KOZHIKODE. .................... REVISION PETITIONER/RESPONDENT ----------------------------------------------- KRISHNANKUTTY, S/O.MOOTHORAN, CHEKIDANPARAKUNNU, KINALOOR AMSOM & DESOM OF KOYILANDY TALUK BY ADV. SRI.SUNNY MATHEW RESPONDENTS: 2ND PETITIONER --------------------------- VINEETH, AGED ABOUT 6 YEARS MINOR, REP.BY GUARDIAN MOTHER NEETPURAM CHALIL VYJAYANTHIMALA, SIVAPURAM AMSOM, IYYAD DESOM, KOYILANDY TALUK. BY THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 1/9/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.A.NO.2533/04 IN RP(FC) NO.24/04: DISMISSED 1/9/2008 SD/- R. BASANT, JUDGE. //TRUE COPY// P.S. TO JUDGE R. BASANT, J. ------------------------------------------------- R.P.(FC) No. 24 of 2004 ------------------------------------------------- Dated this the 1st day of September, 2008 ORDER The petitioner in this case assails an order passed under Sec.125 Cr.P.C. by the Family Court obliging him to pay maintenance at the rate of Rs.250/- per mensem to the 2nd claimant – allegedly his child, from the date of the petition i.e., 7/5/96. The 1st claimant is the mother of the 2nd claimant. She claimed maintenance for herself and her child from the petitioner at the rate of Rs.500/- each per mensem. 2. There was no contention that there was any valid marriage. It was contended that the petitioner and the 1st claimant were neighbours and that they had intimacy. The petitioner promising to marry the 1st claimant had started residing in the house of the 1st claimant and they had sexual intercourse. In such relationship, the 2nd claimant was born. R.P.(FC) No. 24 of 2004 -: 2 :- Initially, the relationship went well; but later, there were disagreements and the petitioner allegedly went away. Long later, the present claim under Sec.125 Cr.P.C. was filed. 3. The petitioner denied the allegations and averments in the complaint. According to him, he had no relationship with the claimant. 4. Parties went to trial on these contentions. The 1st claimant/wife examined herself as P.W.1. She proved Exts.A1 and A2. The petitioner examined himself as R.W.1. No other evidence was adduced. 5. The court below, on an anxious consideration of all the rival contentions, came to the conclusion that the evidence of P.W.1 could be safely accepted and acted upon. In coming to this conclusion, the learned Judge of the Family Court took note of Ext.A2 – extract of the birth certificate, which showed that as early as on 10/6/92, about 4 years prior to the initiation of this claim, the name of the petitioner was shown as father of the child born to P.W.1. The court below, in these circumstances, came to the conclusion that it was safe to accept and act upon the oral evidence of P.W.1. Accordingly, the court below proceeded to pass the impugned order. R.P.(FC) No. 24 of 2004 -: 3 :- 6. The learned counsel for the petitioner has advanced arguments. There is no appearance for the respondent. The learned counsel for the petitioner has taken me through the pleadings, evidence and the impugned order. The short question that arises for determination is whether the conclusion of the court below warrants revisional interference. 7. At the outset, I must take note of the nature, quality and contours of the jurisdiction of this Court sitting as a court of revision. It is by now trite that unless the findings of fact are grossly erroneous or perverse and such findings result in failure/ miscarriage of justice, a court of revision must be slow to invoke its revisional jurisdiction of superintendence and correction. 8. In the instant case, the crucial dispute is about the paternity of the 2nd claimant. The evidence clearly shows that at the time when the 2nd claimant was conceived by the 1st claimant, there was possibility of access between the petitioner and the 1st claimant. The petitioner did not advance any reason as to why the 1st claimant was staking a false claim against him. She had earlier been married to another person on the strength of an agreement executed by her; but the same relationship was brought to termination by Anneuxre-A1 agreement. One child R.P.(FC) No. 24 of 2004 -: 4 :- had been born in the said relationship. The petitioner in the counter statement did not raise any contention to explain why the 1st claimant was staking such an allegedly false claim against him. However, in the course of evidence, he attempted to advance a contention that the 1st claimant had requested him to own the paternity of the 2nd claimant so that she can stake a claim for benefits arising from the status of the child as the child of a person belonging to the Scheduled Caste community to which the petitioner belonged. It is significant that this explanation was not advanced at the earlier stage of filing the counter statement. 9. The evident advantage which a trial court has in the matter of appreciation of evidence cannot also be lost sight of by a superior court. An alert trial Judge makes perceptions which are crucialy vital in the appreciation of evidence. The preference given by the trial court to the evidence of the 1st claimant as P.W.1 must, in these circumstances, be realistically considered. Of course, there was no attempt to get the D.N.A. test conducted to resolve the dispute regarding paternity of the child. In the final analysis the better quality of evidence tendered by P.W.1, the absence of any explanation on the part of the petitioner to R.P.(FC) No. 24 of 2004 -: 5 :- explain why P.W.1 was staking false claim against him, as also the document – Ext.A2 which had come into existence at a point of time when no dispute was existing between the parties are, according to me, sufficient indications to tilt the scales in favour of the claimant. At any rate, I am not persuaded to agree that the revisional jurisdiction of superintendence and correction can or ought to invoked to interfere with the finding. 10. I am conscious of the predicament of a person against whom allegations of paternity are raised by a divorcee who already has a child. I am cognizant of the burden of responsibility on an unwed mother (a divorcee already having a child in the instant case) who points out an individual as the father of the illegitimate child born to her. But I note that the court below had strained to test the veracity of the oral evidence of P.W.1 and R.W.1 and has chosen, on the basis of the circumstances rendered above, particularly Annexure-A2 to prefer to accept the oral evidence of P.W.1. I do not find any compelling reasons to disagree with that conclusion. The course adopted by the court below appears to be cogent, reasonable, just and fair. The petitioner had not offered to get a DNA test conducted to resolve the controversy and to a specific R.P.(FC) No. 24 of 2004 -: 6 :- query by this Court the response is that the petitioner is unwilling to undergo the test. 11. I am, in these circumstances, of opinion that this RP (FC) does not deserve to be allowed. This RP(FC) is accordingly dismissed. (R. BASANT, JUDGE) Nan/ R.P.(FC) No. 24 of 2004 -: 7 :- R. BASANT, J. ------------------------------------------------- R.P.(FC) No. 24 of 2004 ------------------------------------------------- Dated this the 1st day of September, 2008 ORDER