IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 29TH JULY 2008 / 7TH SRAVANA 1930 RPFC.No. 100 of 2006() ---------------------- MC.215/2005 OF THE FAMILY COURT, KASARGOD .................... REVISION PETITIONER/RESPONDENT: ------------------------------------------------ SEKHARAN, AGED 29 YEARS, S/O. CHANIYA NAIK, RESIDING AT BABYYAMOOLA, ADOOR VILLAGE, URDOOR P.O., KASARGOD TALUK, KASARGOD DISTRICT. BY ADV. SRI.T.MADHU SRI.M.THAMBAN RESPONDENTS: PETITIONERS & STATE: --------------------------------- 1. JALAJAKSHI, AGED 1 YEAR(DOB-12/01/2005, MINOR), D/O. SATHYAVATHI, RESIDING AT BABYYAMOOLA, ADOOR VILLAGE, URDOOR P.O., KASARGOD TALUK, KASARGOD DISTRICT, REPRESENTED BY HER MOTHER AND LEGAL GUARDIAN SATHYAVATHI. 2. SATHYAVATHI, D/O. VASU NAIK, AGED 20 YEARS, RESIDING AT BABYYAMOOLA, ADOOR VILLAGE, URDOOR P.O., KASARGOD TALUK, KASARGOD DISTRICT. 3. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 29/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - R.P.F.C.No. of 100 2006 - - - - - - - - - - - - - - - - - - - - - - Dated this the 29th day of July, 2008 O R D E R The petitioner has suffered an order directing him to pay maintenance at the rate of Rs.900/- p.m. to the first claimant, represented by her mother, second claimant. This R.P.F.C. is filed to assail that direction issued under Section 125 Cr.P.C. 2. The mother of the first claimant child was a young girl aged about 18 years at the time when the alleged sexual intercourse between her and the petitioner took place. She allegedly conceived in such relationship. She had a case that she was forced into sexual intercourse by the petitioner and that the petitioner had thereby committed the offence of rape. The complaint was filed before the police after the birth of the child. Subsequently the application for maintenance was filed. 3. The petitioner entered appearance and resisted the claim for maintenance. He took the stand that there was no forcible intercourse with the mother of the first claimant. The parties R.P.F.C.No. of 100 2006 2 went to trial on these contentions. The mother of the child examined herself as PW1. The petitioner examined himself as RW1. Exts.A1 to A5 were marked. 4. It was essentially a case of appreciation of evidence of PW1 against that of RW1. The learned Judge of the Family Court, on an anxious consideration of all the relevant inputs, came to the conclusion that sufficient evidence has been adduced to substantiate the case of PW1 that she had sexual intercourse only with the petitioner and the child was conceived in such relationship. The question is not whether every word of what PW1 said was totally and completely correct and true. The rival assertions had to be assessed and evaluated on the touchstone of probabilities. The learned Judge of the Family Court adverted to all the circumstances and came to the conclusion that there was not even a specific denial on the part of the petitioner when he was in the witness stand to deny the sexual intercourse between him and the mother of the first claimant. The learned Judge in these circumstances came to the conclusion that the version of PW1 can safely be believed. 5. The learned counsel for the petitioner submits that the burden R.P.F.C.No. of 100 2006 3 is heavily on the claimant, who asserts that the child was conceived in the illicit intercourse between the man and the mother of the illegitimate child. There can be no quarrel on that proposition. The burden is on that person who asserts that the unwed mother had given birth to a child in her sexual relationship with the person against whom the claim for maintenance is made. But the totality of circumstances in this case, particularly the undisputed facts – that the parties are residing close to each other, that PW1 was aged only about 18 years at the time when the child could have been conceived, that there is not even a contention that PW1 was a girl of loose character of questionable antecedents, that the petitioner was unable to substantiate his contention that there was any worthwhile motive which could have persuaded PW1 to make false allegations against him, have all been taken note of by the court below and I am satisfied that those circumstances must persuade this Court to hold that the finding of fact rendered by the learned Judge of the Family Court that the child is born to PW1 in her physical relationship with RW1 does not warrant interference. R.P.F.C.No. of 100 2006 4 6. The learned counsel for the petitioner finally submits that there may be a direction to get the DNA test conducted at the expense of the petitioner to enable him to convincingly establish that the child born to PW1 is not his child. In the nature of the facts and circumstances of this case, I reckon that to be a reasonable stand taken by the petitioner and I am satisfied that he can be given an opportunity to get the DNA test conducted at his expenses. Appropriate conditions can of course be imposed. 7. In the result: (a) This revision petition is allowed in part. (b) The impugned order shall stand set aside and the learned Judge of the Family Court shall get a DNA test conducted at the expense of the petitioner and thereafter proceed to dispose of the claim under Section 125 Cr.P.C. afresh, on condition that the petitioner deposits half the amount payable under the impugned order before the Family Court within a period of 60 days from this date and he takes all necessary steps within that period to deposit the amount to get the DNA test conducted. If he takes the necessary steps, the learned Judge shall issue notice to PW1 and shall do the needful to get the test conducted. R.P.F.C.No. of 100 2006 5 © The petitioner shall appear before the Family Court on 30.9.2008. If the above directions are complied with, the impugned order shall stand set aside and the learned Judge shall proceed to dispose of the M.C. afresh. The amounts deposited shall be released to the claimants without any prejudice to the respective contentions reckoning the same as direction for payment of interim maintenance only. (d) If the amounts are not deposited as directed, that fact will be recorded by the Judge of the Family Court on 30.9.2008 and thereupon the impugned order shall continue to remain valid and enforcible. (R. BASANT) Judge tm