IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 21ST MAY 2009 / 31ST VAISAKHA 1931 RPFC.No. 169 of 2009() ---------------------- MC.479/2006 of FAMILY COURT, PALAKKAD .................... REVISION PETITIONER/RESPONDENT -------------------------------------------------- A.V.SIVAN, AGED 37 YEARS, S/O.KALYANI, ALAKKAL VEEDU, THENUR, THENUR AMSOM DESOM, PALAKKAD TALUK. BY ADV. SRI.P.SANJAY SRI.K.N.CHATHUKUTTY SMT.A.PARVATHI MENON RESPONDENT(S): PETITIONERS -------------------------- 1. K.BINDU, 29 YEARS, D/O.PONNU, KALARIPPARAMBU VEEDU, AMBALAPPARA AMSOM DESOM, OTTAPALAM TALUK. 2. ASWIN RAJ (MINOR), AGED 1 YEAR, S/O.K.BINDU, REP. BY GUARDIAN/MOTHER, THE IST PETITIONER. THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 21/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.P.(FC) No.169 of 2009 -------------------------------------- Dated this the 21st day of May, 2009. ORDER Heard counsel for petitioner. 2. The order of maintenance in favour of respondent No.2 at the rate of Rs.500/- per month is under challenge at the instance of the petitioner who disputed the paternity of respondent No.2. Court below found on the evidence including the report of DNA test conducted on the request of the petitioner that he is the biological father of respondent No.2 and granted Rs.500/- per month as maintenance. Learned counsel for petitioner contends that the petition filed challenging the order in C.M.P.No.1692 of 2007 as per which petitioner wanted a re-test at Hyderabad is pending consideration in this Court. 3. It is not disputed that the petitioner married respondent No.1 on 26.5.2002 and respondent No.2 was born during the subsistence of a valid marriageon 7.2.2003. According to respondent No.1, respondent No.2 had a premature birth and he had to keep in the incubator. On the request of the petitioner DNA test was conducted at Thiruvananthapuram and the report is on record. The report is to the effect that the petitioner is the biological father of respondent No.2. Under Section 112 of the Evidence Act there is a conclusive presumption regarding paternity when birth is during the subsistence of a valid marriage. In this case, though the petitioner had filed a petition in the family RP(FC) No.169/2009 2 court for annulment of marriage of petitioner, that petition ended in dismissal for default. According to petitioner an application for restoration of that petition is pending consideration. The mere fact that an application for restoration of that petition is pending, will not make the marriage between the petitioner and respondent No.1 invalid. In other words, there is a valid marriage subsisting between the petitioner and respondent No.1 and concededly respondent No.2 was born during the period of that wedlock. 4. Though the report of DNA test is at the instance of the petitioner, no steps were taken to prove that the report is inconclusive or not valid for any reason whatsoever. The person who conducted the test was not examined. There is nothing on record to show that the test report is not acceptable for any reason whatsoever. Apex Court held in Kamti Devi v. Poshi Ram (AIR 2001 SC 2226) that the degree of proof required to rebut the presumption under Section 112 of the Evidence Act should be higher than mere preponderance of probability but not necessarily amounting to standard of proof beyond reasonable doubt. Petitioner has not adduced such evidence. Respondent No.1 has a case and she gave evidence that respondent No.2 had a premature birth and had to keep up in incubator. Though petitioner has not admitted premature birth, he admitted that the child (respondent No.2) was kept in incubator following birth. A further fact noted by the learned judge of the family court is that though according to petitioner he learnt about the pregnancy of respondent No.1 twenty days after the marriage, without any difficulty he cohabited with respondent No.1 till the seven month of pregnancy when she RP(FC) No.169/2009 3 was sent to her house for delivery. In these circumstances, I do not find any illegality, irregularity or impropriety in the finding of the learned judge of the family court. Petitioner is liable to pay maintenance to respondent No.2 as well. 5. So far as the quantum of maintenance is concerned, what is awarded is Rs.500/- per month which requires no interference. I must also look into the object of incorporating Section 125 in the Code of Criminal Procedure. It is to prevent vagrancy and ameliorate distress. The proceedings are of civil nature and summery in character. In appropriate cases, the order for payment of maintenance can also be interfered in civil court. Revision petition fails. It is dismissed. THOMAS P.JOSEPH, Judge. cks