IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 11TH JUNE 2008 / 21ST JYAISHTA 1930 RPFC.No. 6 of 2004() -------------------- MC.446/2001 OF THE FAMILY COURT, MANJERI DT.4.2.2003. .................... REVISION PETITIONERS/PETITIONERS: ------------------------------------------- 1. THAYYIL ALIKUNNATH SULAIKHA, TIRUR TALUK, KANMANAM AMSOM, VARANAKKARA DESOM, D/O. KOYAKUTTY, P.O. KANMANAM. 2. MUHAMMED NISHAD, MINOR, 4 1/2 YEARS, MINOR PETITIONERS ARE REPRESENTED BY THE GUARDIAN MOTHER 1ST PETITIONER) BY ADV. SRI.ESM.KABEER RESPONDENT: RESPONDENT: -------------------------------- KORALATTIL MUHAMMED SHEREEF, S/O. SAIDALAVI, P.O. KANMANAM, TIRUR TALUK, KANMANAM AMSOM, VARANAKKARA DESOM. BY PUBLIC PROSECUTOR, SRI. C.M.KAMAPPU. THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 11/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ----------------------------------------------- R.P.(FC) No. 6 OF 2004 ----------------------------------------------- Dated this the 11th day of June, 2008 O R D E R The revision petitioners are aggrieved by an order passed under Section 125 Cr.P.C dismissing the claim for maintenance staked by her on behalf of her minor child aged 4 ½ years. 2. The crux of the allegations in the petition is that the 1st petitioner was raped by the respondent on 29.5.96. She became pregnant in such relationship. She gave birth to a child the second petitioner after 10 months. After the child was born there was an allegation against the 1st petitioner that she had tried to abandon the child. Later she came to this Court with this petition in 2001 with the present claim for maintenance. The respondent took up the contention that he had nothing to do with the 1st petitioner and that there was no sexual intercourse with the 1st petitioner by him. 3. The oral evidence of the 1st petitioner was recorded. She was examined as PW1. Ext.P1 is the only document marked, i.e. FIR filed by the petitioner on 10.11.98 alleging commission of rape by the respondent herein. No witness was examined by the R.P.(FC) No.6 OF 2004 2 respondent. DNA test was got conducted. Report of DNA test was marked as Ext.C1. It shows that after conducting test the expert had opined that “it is confirmed that the alleged father (respondent herein) is not the biological father.” The learned Judge of the Family Court in these circumstances proceeded to hold that the claimant is not entitled to any maintenance. It had not been established that the respondent is the father of the child, it was held. 4. Petitioners claims to be aggrieved by the impugned order. What is the grievance? The learned counsel for the petitioner submits that no reliance should have been placed on Ext.C1 report of the expert as it is apprehended that blood sample which was compared was not that of the respondent herein. 5. Except the oral evidence of the petitioner as PW1, there is no semblance of data available to show that the respondent is the biological father of the child born to the claimant. Admittedly it is an illegal relationship and it is for the claimant to prove illegitimate paternity to the satisfaction of the Court. The 1st petitioner mother had already been married twice earlier and was divorced by her R.P.(FC) No.6 OF 2004 3 second husband before the alleged instance of rape took place. Even though she has a case that there was mediators who had intervened and the respondent had promised to marry her and to look after the child, no satisfactory evidence is even attempted to prove that fact. 6. The evidence of PW1 does not establish paternity of the respondent as the father of the 2nd petitioner child. Ext.P1 produced is also not of any crucial assistance. In Ext.C1 report, the photograph of the alleged father, the child and the mother are all seen annexed to the said report. The blood samples were drawn on 26.08.02. The report was submitted on 26.11.02. It is seen received by the Court on 09.12.02. The same is seen marked as Ext.C1 on 18.01.03 when PW1 the claimant mother was examined. Till such time no objection whatsoever is seen raised against the report, Ext.C1. The allegations do of course show that still later on 01.02.03 a petition dated 31.01.03 was filed against Ext.C1 report in which a vague suspicion is expressed that the blood which was used for conducting the test was not that of the respondent. I must say that the materials presently available R.P.(FC) No.6 OF 2004 4 after clinching support to the decision of the learned Judge of the Family Court. I find absolutely no merit in the prayer for invoking the revisional jurisdiction of superintendence and correction. The petitioners have totally failed in adducing satisfactory evidence to show that the 2nd petitioner child is the child born to the respondent herein in her. This R.P(FC) is, in these circumstances, dismissed. R. BASANT, JUDGE ttb R.P.(FC) No.6 OF 2004 5 R.P.(FC) No.6 OF 2004 6