IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 3RD MARCH 2010 / 12TH PHALGUNA 1931 RPFC.No. 56 of 2006() --------------------- MC.275/2003 of FAMILY COURT THIRUVALLA .................... REVISION PETITIONER/COUNTER PETITIONER: ----------------------------------------------------------------------- N.SAJEEV, S/O.NOORDEEN RAWTHER, KADEEJA MANZIL, THEKKEKAVU PUTHENVEEDU, PATHIRICAL, MANCODU.P.O, PATHANAPURAM. BY ADV. SRI.MVS.NAMBOOTHIRY RESPONDENT(S): PETITIONER(S): --------------------------------------------------- 1. RASEENA BEEVI, D/O.K.K.UMMER, KALAMILKUNNATHIL HOUSE, MANGARAM, KONNI VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT. 2. TOUFEEK, (MINOR), AGED 5 YEARS, D/O.RASEENA BEEVI, RESIDING AT DO. DO., REP. BY NEXT FRIEND - IST RESPONDENT. ADV. SRI.SATHISH NINAN FOR R1 SRI.SANTHOSH MATHEW FOR R1 THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 03/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N.KRISHNAN,J. ====================== R.P.(F.C) No.56 OF 2006 ====================== Dated this the 3rd day of March 2010. JUDGMENT This revision is preferred against the order of the Family Court Thiruvalla in M.C.275/2003. The petitioners before the Family court claimed maintenance against the respondent therein and the Family Court ordered maintenance at the rate of Rs.1,000/- to the wife and Rs.800/- to the child. Aggrieved by the same the husband has come up in revision. The case of the petitioner is that the marriage took place on 18.3.2001 and a child had been born in the wedlock and the husband has treated her with cruelty and therefore she is entitled to claim separate maintenance. On the Contra the husband would contend that though there was a marriage it was not even consummated and the wife is totally non co-operative. It is also contended that paternity of the child is denied and further that the 1st petitioner is living with one Shanawas. R.P.(F.C) No.56 OF 2006 2 On appreciation of the materials the court rejected the contention of the husband and ordered maintenance . 2.Heard. 3. The learned counsel for the petitioner would submit on the question of paternity of 2nd petitioner in the MC. The factum of marriage is admitted. The child is born during the subsistence of the marriage. Under Section 112 of the Evidence Act there is a presumption of the paternity of the child and only exemption is that if non access is proved it is rebuttable. Absolutely no evidence is adduced proving non access. It is argued that DNA test was not done and therefore the issue was not decided properly. DNA test cannot be ordered as a matter of course and it has been cautioned by the apex court that when there is a valid presumption available under Section 112 of Evidence Act unless that presumption is rebutted DNA test should not be ordered as a routine affair. Here the marriage is admitted. The access is not disproved and therefore presumption arises. Coupled with presumption and evidence of PW1 R.P.(F.C) No.56 OF 2006 3 which remain uncontraverted it has to be held that 2nd petitioner was born to the revision petitioner in the 1st petitioner in M.C. 4. There is a plea of adultery. It is true that under Section 125 Cr.P.C. If the wife is living in adultery she is disentitled to claim maintenance. Except the averment in the counter statement no materials are produced before the Court to prove the case of adultery. So it also goes. 5. Lastly the quantum. The husband is having landed properties. The evidence in this regard is that PW1 & PW2. About the same it is submitted that he is having 2 acres and 22 cents of property which is capable of producing 12 rubber sheets a day. PW2 also has supported the version of PW1. It has to be remembered that the child was only 1 year and 9 months at the time of filing of petition. So I feel that little leniency may be shown considering the age of minor petitioner at the time of filing of petition. The amount ordered to the wife is reasonable which does not call for any interference. So far as the child is concerned, I feel R.P.(F.C) No.56 OF 2006 4 interest of justice can be met by directing the husband to pay maintenance of Rs.1,000/-to wife from the date of petition and Rs. 500/- to child from the date of petition to the date of order, i.e up to 7.5.2005 and at the rate of Rs.800/- from 8.5.2005 onwards. The mother is entitled to accept the amount on behalf of the minor child. If the parties have settled the matter this judgment will not stand in the way. Disposed accordingly. M.N.KRISHNAN,JUDGE. mns