IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI MONDAY, THE 25TH AUGUST 2008 / 3RD BHADRA 1930 Crl.MC.No. 1827 of 2005() ------------------------- MC.34/2000 of CHIEF JUDICIAL MAGISTRATE, KASARAGOD .................... PETITIONER/RESPONDENT/REVISION PETITIONER: ------------------------------------------------------- MOHANAN, 43 YEARS, S/O. SUKUMARAN, PALLATHUMKAL, CHATTAMCHAL, THEKKIL VILLAGE, KASARAGOD. BY ADV. SRI.M.SASINDRAN SRI.SREEJITH S.NAIR SRI.HARISH RESPONDENTS/PETITIONERS/RESPONDENT: ------------------------------------------------ 1. A. JANAKI, 38 YEARS, D/O. KURAVAN ACHARI, KARATHOTTY, PERUMBALA POST, KASARAGOD TALUK. 2. HEMA. K., AGED 9 YEARS, MINOR REP. BY HER MOTHER A JANAKI. 3. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.T.K.VIPINDAS FOR R1 PUBLIC PROSECUTOR SRI. C.M. KAMMAPPU THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 25/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. GIRI, J. --------------------------------- CRL.M.C.NO.1827 OF 2005-C ------------------------------------- Dated this the 25th day of August, 2008. O R D E R Petitioner challenges the correctness of the orders passed by the courts below awarding an amount of Rs.500/= as maintenance in favour of the second respondent herein, his daughter. Respondents 1 and 2 herein, the second respondent minor daughter being represented by her mother, filed M.C.No.34/2000 before the trial court claiming maintenance on behalf of the first respondent as wife and second respondent as minor daughter. The petitioner herein disputed the marriage and also the paternity. The first respondent had examined herself and her sister-in-law. The evidence on record was appreciated by the trial court to find that the petitioner herein and the first accused were living together in close proximity even before the date of the alleged marriage. The photographs showing them together were also considered. The defence taken up by the petitioner that he was impotent till 1999 was also considered and rejected. But, the trial court went on to find that there is no evidence to prove the marriage and therefore denied maintenance to the first respondent. But, on an appreciation Crl.M.C..NO.1827/05 . 2 of the evidence, including a reference to Ext.P1 birth certificate, the trial court found that the paternity of the child has been proved. Accordingly, the petitioner herein was directed to pay an amount of Rs.500/= as maintenance to the child. The claim made by the wife was rejected. 2. Revision petitions were preferred by both the petitioner herein and the first respondent before the Sessions Court, Kasaragod. The learned Sessions Judge elaborately considered the contentions of both the parties and concurred with the finding of the learned Magistrate. Both the revisions were dismissed. The petitioner herein challenges the orders passed by the courts below in so far as there is a direction to pay maintenance at the rate of Rs.500/= per month in favour of the child. 3. I heard the learned counsel for the petitioner and the learned counsel for the respondents. First of all, I may remind myself about the limited scope of interference available in a petition under Section 482 of Cr.P.C, especially with regard to the concurrent findings of fact entered into by the courts below. The courts below found that a false case was set up by the petitioner herein when he contended that he was impotent till 1999 and that thereafter he became potent. Apart from the fact that this Court Crl.M.C..NO.1827/05 . 3 cannot interfere with the said finding of fact, after having perused the order of the courts below and having heard the learned counsel for the parties, I am also inclined to agree with the said finding of the courts below. Not a scrap of paper was produced by the petitioner herein to substantiate his contention that he was impotent till the year 1999. Miraculously he became potent again. Apparently, this strange stand was taken to otherwise accommodate the contention that he has a child in CPW2. The courts below have correctly appreciated the fact that no attempt what so ever was made by the petitioner to produce any medical evidence to substantiate the said contention. 4. The courts below have also taken note of the fact that the petitioner and the first respondent had access to each other. Obviously the courts below were inclined to accept the version of the first respondent taking note of the fact that the petitioner had taken up extreme contentions. He denied any acquaintance with the first respondent. The photographs, Ext.P2 along with Ext.P2(a) proved otherwise. The courts below also rightly referred to Ext.P1 birth certificate. It is, therefore the courts below came to the conclusion that there must have been a union between the petitioner and the first respondent. Crl.M.C..NO.1827/05 . 4 5. The learned counsel for the petitioner Sri. Harish submits that the first respondent made no attempt what so ever to substantiate the paternity of the second accused. He contended that it was open to the first respondent to seek a DNA test, a method of producing conclusive evidence as regards paternity of the child. In my view, there is no reason why the petitioner should not have assumed the burden himself. This is in the light of the fact that there was an attempt by the first respondent to prove the paternity of the child. Ext.P1 birth certificate was produced. She examined herself as PW1. Her sister-in-law was examined as PW2. She produced and proved Ext.P2 photographs. On the other hand, the petitioner took up an extreme contention that he was impotent till the year 1999. But, did not produce any proof to support the same. He also alleged loose morals against the first respondent. In these circumstances, if the petitioner was absolutely certain that he is not the father of the child, then nothing prevented him moving an application before the trial court or even before the revisional court for a DNA test. He did not do so. In these circumstances, it cannot be said that any burden was wrongly cast on the petitioner by the courts below. For all these reasons, I find that there is no justification what Crl.M.C..NO.1827/05 . 5 so ever in interfering with the findings of the court below that the second respondent herein is a child of the petitioner and he is therefore bound to maintain the second respondent. The amount of maintenance awarded in that regard namely Rs.500/= per month is obviously conservative going by the present standards. For all these reasons I do not find any merit in this petition. It is accordingly dismissed. V. GIRI, JUDGE. cl