IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN THURSDAY, THE 1ST OCTOBER 2009 / 9TH ASWINA 1931 RPFC.No. 205 of 2005() -------------------------------- MC.103/2005 of FAMILY COURT, KALPETTA. .................... REVISION PETITIONER/COUNTER PETITIONER: ------------------------------------------------------------------- BABU, AGED 30 YEARS, S/O. GOVINDAN, KALIYAN THOTTATHIL VEEDU, THOOTHALERI, ATHIRATTUKUNNU, BATHERY TALUK, KENICHIRA, WYNAD. BY ADV. MR.T.G.RAJENDRAN RESPONDENTS/PETITIONERS: ------------------------------------------- 1. RATHI, AGED 26 YEARS, D/O. KAMALASANAN, VALUMMAL VEEDU, THOOTHALERI, ATHIRATTUKUNNU, BATHERY TALUK, KENICHIRA, WYNAD. 2. MALAVIKA, 2 YEARS (MINOR), D/O. RATHI, RESIDING DO, (REPRESENTED BY 1ST RESPONDENT). BY ADV. MR.LALJI P.THOMAS. THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 01/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. P.S.GOPINATHAN, J. == = = = = = = = == = = = R.P.(FC).No.205 of 2005. = = = == = = = = == = = = Dated this the 1st day of October, 2009. O R D E R The counter-petitioner in MC.No.103/2005 on the file of the Family Court, Kalpetta is the revision petitioner. The respondent herein filed the above petition before the trial court under Section 125 of the Criminal Procedure Code seeking an order directing the revision petitioner to pay monthly maintenance at the rate of Rs.1,500/- to the 2nd respondent with a plea that the revision petitioner is the neighbour and close friend of the brother of the first respondent and on 29.8.2000 while the first respondent along with a mentally retarded sister were alone in her house, the revision petitioner came there and had committed rape on the first respondent and as a result she was conceived and delivered the second respondent on 2.5.2001 and that though the revision petitioner promised R.P.(FC).No.205 of 2005. -: 2 :- to marry her, he later retracted and he neglected the respondents and that the 2nd respondent needed a sum of Rs.1,500/- per month which the revision petitioner could afford. 2. The revision petitioner took up a contention that he had no sort of relationship with the respondents and that the story that he had committed rape on the first respondent is a cooked up case, because of the enmity and that the revision petitioner is not the father of the second respondent and that he is not liable to pay any maintenance to the second respondent. 3. The first respondent was examined as Pw1. The revision petitioner was examined as CPw1. On his side Exts.D1 to D3 were marked. The lower court on appraisal of the evidence arrived a finding in favour of the respondents that the revision petitioner is the father of the second respondent and he is liable to maintain. Accordingly, the petition was allowed and the maintenance R.P.(FC).No.205 of 2005. -: 3 :- was awarded at the rate of Rs.500/-. Assailing the legality, correctness and propriety of that order, this revision petitioner was filed. 4. Heard the learned counsel on either side and perused the order impugned and the evidence on record. The first respondent had given evidence in support of the plea that the revision petitioner had sexual inter-course with the revision petitioner against her will on 29.8.2000 and that thus she had become pregnant and the second respondent is the daughter born on 2.5.2001 to the revision petitioner. According to Pw1, the revision petitioner is a close friend of her brother and neighbour and they were well acquainted and on the fateful day when the revision petitioner visited her house the second respondent and her mentally retarded sister were alone in the house and exploiting the situation the revision petitioner had sexual inter-course with the first respondent against her will. Revision petitioner denied the same. So, as regards the R.P.(FC).No.205 of 2005. -: 4 :- sexual inter-course on 29.8.2000 there is oath against oath. The trial court who had the occasion to watch the demeanour of the parties found nothing to disbelieve the evidence of Pw1. The lower court had also taken note of the circumstance that the revision petitioner on some pretext or other avoided to undergo the DNA test. The first respondent applied for sending the revision petitioner to a DNA test. He avoided the same by stating that he is married and in case his wife happened to know about the fact that he had under gone the DNA test that would affect his future life. The excuse made by him is devoid of any merit and requires no consideration. When paternity is inputed, if the denial of paternity is bonafide, the revision petitioner should have been amenable to the scientific test. The fact that he avoided scientific test is a good reason to infer against the revision petitioner. It is also pertinent to note that the revision petitioner is facing prosecution for offence under Sec.450, 376 and 506(1) IPC. If DNA test R.P.(FC).No.205 of 2005. -: 5 :- turns in favour of the revision petitioner, that would enure as good defence in the prosecution. Still then the revision petitioner refuses to go DNA test. The lower court had correctly canvassed the inference against the revision petitioner. 5. The revision petitioner has also no case that there was any peculiar circumstance to implicate the revision petitioner as the father of the second respondent after sparing the real father, if someone else is the father. Of course, the revision petitioner had advanced a plea of enmity. But that plea didn't appear to be convincing. In the above circumstance, I find that the lower court had correctly appreciated the evidence and arrived a finding against the revision petitioner. I didn't find any error, illegality or impropriety committed by the trial court in concluding that the revision petitioner is the father of the second respondent. 6. It is admitted that the revision petitioner is an R.P.(FC).No.205 of 2005. -: 6 :- agriculturist. He has no case that he is not healthy enough to find out means to maintain his child. Therefore, it has to be found that he can find out means to maintain the 2nd respondent. The amount now awarded by the lower court is very meagre to meet the day-to-day expenditure of the child. In the above circumstance I find that the amount is not at all exorbitant and requires no interference in exercise of the revisional powers. In the result, there is no merit in the revision petition. Accordingly it is dismissed. The revision petitioner shall pay Rs.1,000/- as costs to the respondents. P.S.GOPINATHAN, JUDGE. Kvs/-