Kerala High Court
George vs George (Minor) on 3 January, 2014
Author: K. Harilal
Bench: K. Harilal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE
FRIDAY, THE 3RD DAY OF JANUARY 2014/13TH POUSHA, 1935
RPFC.No. 125 of 2013 ()
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AGAINST THE ORDER IN MC 506/2011 & O.P.NO.1014/2011 of
FAMILY COURT, KANNUR.
REVN.PETITIONER/COUNTER PETITIONER:-
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GEORGE, AGED 51 YEARS,
S/O. JOHN, MATTATHIL HOUSE, VATTIAMTHODU P.O.,
VAYATHOOR VILLAGE, TALIPARAMBA TALUK,
KANNUR DISTRICT.
BY ADVS.SRI.V.A.SATHEESH
SRI.V.T.MADHAVANUNNI
RESPONDENT/PETITIONER:-
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GEORGE (MINOR), AGED 14 YEARS,
S/O. ANNAMMA, VANCHIPPARA HOUSE, MATTARA P.O.,
VAYATHOOR VILLAGE, TALIPARAMBA TALUK,
KANNUR DISTRICT-670 703
REPRESENTED BY HIS MOTHER AND GUARDIAN ANNAMMA
D/O. JOSEPH, AGED 46 YEARS,
VANCHIPPARA HOUSE, MATTARA P.O.,
VAYATHOOR VILLAGE, TALIPARAMBA TALUK,
KANNUR DISTRICT-670 703.
THIS REV.PETITION(FAMILY COURT) HAVING COME UP
FOR ADMISSION ON 03-01-2014, THE COURT ON THE SAME DAY
PASSED THE FOLLOWING:
K. HARILAL, J.
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R.P. (FC) No. 125 of 2013
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Dated this the 3rd day of January , 2014
ORDER
The revision petitioner is the counter petitioner in M.C. No.506/2011 on the files of the Family Court, Thalassery. The above petition was filed by the respondent/herein under Sec.125 of the Code of Criminal Procedure seeking maintenance allowance from the revision petitioner on the ground that he is the son of the revision petitioner. According to him, the revision petitioner is legally liable to pay maintenance allowance to the respondent, who is a minor aged 13 years only. The mother of the respondent was married to one Mr. John. He died on 25/6/90. Subsequently, she married one George Vellipana and both of them had been resided together. He had already undergone vasectomy prior to his marriage with the respondent's R.P.(F.C) No.125 of 2013 2 mother.
2. The revision petitioner is a neighbour. In the year 1998, the above said George Vllipana had gone to Veerajpetta in search of a job. The mother of the respondent was doing coolie work in the house of the revision petitioner. Availing that opportunity, he persuaded her to have sexual intercourse with him. On 28/2/98, the revision petitioner knowing fully well that her husband is not in the house, he came to her house in the night and he had sexual intercourse with her and she became pregnant in that relationship and the respondent was born on 8/11/1998. The revision petitioner had agreed to lookafter the respondent as his son; but the revision petitioner has not provided any amount as maintenance allowance. Subsequently, the claim of the respondent had culminated in filing of M.C.No.289/06 and O.P. No.364/06 before the Family Court, Kannur, claiming future and past maintenance. The parties have appeared for a DNA test. The result of the DNA R.P.(F.C) No.125 of 2013 3 test shows that the revision petitioner is the biological father of the respondent. But, the Family Court, Kannur, dismissed the petition on the ground that the mother of the respondent failed to produce documents from proper court civil court declaring that the revision petitioner is the father of the respondent.
3. Thereafter, she filed O.S.No.484/09 before the Munsiff's Court, Taliparamba, and that suit was decreed and it is declared that the revision petitioner is the biological father of the respondent and also the entries in the Baptism Certificate, Birth Register, School Admission Register of the respondent mentioning George Vellipana, the father of the respondent, is incorrect. That suit was decreed on 23/8/2011. The respondent is having no other source of income and he is a school going child. But the revision petitioner is a real estate broker and he is getting a monthly income of `20,000/-. He is also having income from the landed properties. According to him, he has the right to live R.P.(F.C) No.125 of 2013 4 with the standard of life as that of his father, the revision petitioner. Therefore, he claimed `3,000/- per month as maintenance allowance. The Family Court directed the revision petitioner to pay maintenance allowance at the rate of `500/- per month to the respondent towards his past maintenance from 8/11/98 to 18/11/11 in the O.P., and in the M.C., the revision petitioner is directed to pay `1,000/- per month to the respondent towards his future maintenance allowance. The legality, propriety and correctness of the said order is under challenge in this revision petition.
4. The revision petitioner filed a counter statement denying the entire allegations levelled against him. He denied the paternity of the respondent. According to him, the respondent is the son of George Vellipana. There was no sexual intercourse between the respondent's mother and the counter petitioner either on 28/2/98 or any day before or after 28/2/98. At the time of the birth of the respondent, the mother of the respondent was living along with Mr. R.P.(F.C) No.125 of 2013 5 George Vellipana and in the school register and birth certificate of the respondent, George Vellipana is shown as the respondent's father. Though the mother of the respondent had obtained a decree in O.S.No.454/09 on 23/8/11 declaring that the revision petitioner is the biological father of the respondent, it was an ex parte decree. Subsequently, he has filed I.A.No.2383/11 to set aside the ex parte decree in O.S. No.454/09 and that petition was allowed. Hence he prayed for dismissal of the M.C.
5. Going by the rival contentions raised by the parties, the short question that arises for consideration is, is the revision petitioner, the father of the respondent herein? If he is the father of the respondent, can the court below be justified in fixing the quantum of maintenance allowance to him? It is seen that both M.C. and O.P. were tried jointly and a common judgment is seen passed. The admitted facts are as follows: The respondent is a minor aged 13 years and he is represented by his mother as guardian. The mother was R.P.(F.C) No.125 of 2013 6 already married to one John during the year 1983. He died in 1989. Thereafter, the mother of the respondent has married one George Vellipana and thereafter, they had been residing together at the residence of George Vellipana. The above facts are not disputed.
6. For the respondent, the mother was examined as P.W.1. She testified that the revision petitioner is a neighbour of them. She used to go for coolie work in the revision petitioner's house. During that time, the revision petitioner persuaded her to have sexual intercourse with him. While so during January 1998, when P.W.1's husband George Vellipana was out of station in search of a job, they had intercourse and the respondent happened to be born in that illicit relationship. The revision petitioner promised that he would look after the respondent as his own son but he miserably failed to keep the promise and he had never paid any amount towards maintenance allowance of the respondent. Though she had filed M.C.No.289/2006 and R.P.(F.C) No.125 of 2013 7 O.P.No.364/2006 claiming future and past maintenance respectively, those cases were dismissed on the reason that the mother of the respondent failed to produce an authoritative declaration of the civil court that the revision petitioner is the biological father of the respondent, though D.N.A test proved that the revision petitioner is the biological father of the respondent. Thereafter, she had preferred O.S.No.484/2009 and obtained a decree declaring the revision petitioner is the biological father of the respondent herein. Ext.A3 is the copy of the D.N.A report filed in O.P.No.364 of 2006 stating that the revision petitioner is the biological father of the respondent herein.
7. The revision petitioner was examined as CPW1 and he testified in consonance with the averments in the counter statement. He strongly denied the paternity of the respondent. He denied the averment that he made a promise to look after the respondent. Further, CPW1 testified that these proceedings claiming maintenance R.P.(F.C) No.125 of 2013 8 allowance from the revision petitioner is initiated at the instance of one Mr.Sunil with whom the revision petitioner is at logger heads. According to him, the O.P and M.C were filed at the instance of Mr.Sunil with an intention to defame the reputation of the revision petitioner. He has produced Exts.B1 to B5 to prove his case. According to him, in the birth register of the hospital and in the school admission register, the name of Mr.George Vellipana is shown as the father of the respondent. It has come out in evidence that before the marriage with the mother of the respondent, Mr.George Vellipana had undergone Vasectomy operation on 10/08/1978. Therefore, he was not capable of begotting children. The revision petitioner has no case that the said George Vellipana had any enmity towards him. His only case is that one Mr.Sunil was caught by the police for manufacturing illicit liquor and that Sunil is the close friend of PW1 and her husband. Therefore, PW1 and her husband requested the revision petitioner (CPW1) to adduce evidence R.P.(F.C) No.125 of 2013 9 before the Sessions Court in favour of Mr.Sunil. But, the revision petitioner (CPW1) was not willing for that. Therefore, due to the influence of Sunil, PW1 has fabricated such a false story and approached the court with an ulterior motive to malign the reputation of the revision petitioner. But, Ext.B4 copy of the judgment in Sessions Case 182 of 2005 shows that CPW1 is a witness and he has adduced evidence in favour of prosecution and the said Sunil was acquitted in that case. Moreover, Ext.B4 shows that, that arrack was seized near the house of Sunil on 16/05/2003, ie., four years after the birth of the respondent. Therefore, it could be seen that, that contention advanced by the revision petitioner to show the motive behind the proceedings against him is a mere defence advanced without any bona fides and he miserably failed to prove the defence version at least by the yardstick of preponderance of probabilities. The another version of the revision petitioner in defence is that on 22/06/1999, PW1 quarrelled with one Mr.Benny and she R.P.(F.C) No.125 of 2013 10 came to CPW1's house and stated complaint against Benny to CPW1. At that time, CPW1 told to PW1 that her complaint against Benny is without any valid reason and then she became angry and immediately she kept eight months old child in the veranda of CPW1's house and went away with a utterance that CPW1 is the father of that child. Though such a contention was raised, no evidence was adduced to substantiate the said contention. It appears that the said contention is a fabricated story without any evidence. Such a story cannot be swallowed without a pinch of salt. It has come out in evidence that Exts.B2 and B3 show that after the birth of the respondent from 1999 onwards, PW1 claims that CPW1 is the father of the minor respondent. At last, she filed M.C.No.289 of 2006 and O.P.No.454/2009 claiming future and past maintenance allowance respectively. In that case, both had undergone D.N.A test and Ext.A3 test result shows that the revision petitioner is the biological father of the respondent herein. The legal validity and authenticity of R.P.(F.C) No.125 of 2013 11 the D.N.A test with regard to the paternity of the child is declared by the Supreme Court through various decisions. In Amarjitkaur v. Harbhajan Singh & Another (AIR 2003(10) SCC 228), the Supreme Court held that the D.N.A test result can be taken as an authoritative scientific test of the paternity of a child. It must be remembered that Sec.112 of the Evidence Act was enacted at a time when the modern scientific advancement with DNA test was not even in contemplation of the legislature. The result of a genuine DNA test is scientifically accurate. In Sharda v. Dharmapal (2003(2) KLT 243 (SC), after referring Goutam Kundu v. State of West Bengal (AIR 1993 SC 2295), the Apex Court held that DNA test is the scientific authority and it can be allowed after weighing all pros and cons and on being satisfied about the existence of eminent need. Thus, it could be seen that the paternity of the respondent is declared authoritatively by the competent scientific test. It is pertinent to note that the incapability of George Vallipana R.P.(F.C) No.125 of 2013 12 to impregnate PW1, consequent on the vasectomy surgery is not challenged by the revision petitioner. So, I am of the opinion that the incapability of George Vallipana consequent on vasectomy surgery would rebut the presumption under Sec.112 of the Evidence Act. The D.N.A test result certifying the paternity of the respondent is further corroborated by the evidence of PW1. The court below observed that though she had been subjected to cross- examination at length and into minute details, nothing brought out to render her evidence unbelievable or incredible. The mother alone knows the father of her child. Unless and until the oral evidence of mother regarding paternity of her child is controverted and discredited successfully, the evidence given by the mother coupled with DNA test result can be relied on, for determining paternity of the child. The totality of the evidence of PW1 coupled with Ext. A3 proved that the revision petitioner is the biological father of the minor respondent. Consequently, I also concur R.P.(F.C) No.125 of 2013 13 with the findings of the court below that the revision petitioner is the father of the respondent and as a father he is legally liable to pay maintenance allowance to the respondent.
8. The next point to be considered is, is the quantum of maintenance allowance determined by the court below justifiable? According to PW1, she is a coolie worker only and the respondent is a minor, aged 13 years only. It has come out in evidence that CPW1 is the real estate broker. But, regarding his exact income, no evidence has been adduced by the respondent. CPW1 himself admitted that he is having agricultural property and in which there are rubber and coconut trees. According to him, there are 100 rubber trees and 12 coconut trees only. It is also admitted that he is in possession of 50 cents of property. Though the revision petitioner contended that the mother of the respondent is a coolie worker earning 300 per day, no evidence has been adduced to substantiate the said contention. Admittedly, R.P.(F.C) No.125 of 2013 14 the respondent is a school going student and he is in need of money for his educational expenses, food, clothing, medical and treatment expenses etc. Certainly, he has the right to live with standard of life on a par with the standard of life of his father.
9. Having regard to the standard of life and living cost and also the admitted income of the revision petitioner, I am of the opinion that the amount quantified by the court below as maintenance allowance per month is just and proper and the determination of the quantum of maintenance does not call for any interference under revisional jurisdiction.
This revision petition is dismissed accordingly.
K.HARILAL, JUDGE.
Nan/stu //True copy// P.A to Judge