Kerala High Court
Sunil C.P Aged 38 Years vs Sheena P on 26 May, 2011
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.UBAID
WEDNESDAY, THE 9TH DAY OF APRIL 2014/19TH CHAITHRA, 1936
RPFC.No. 53 of 2014 ()
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AGAINST THE ORDER IN MC 25/2010 of FAMILY COURT, KASARAGOD
DATED 26-05-2011
REVISION PETITIONER/RESPONDENT:
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SUNIL C.P AGED 38 YEARS
S/O.A.APPU, RESIDING AT CHEMBRAKANAM
THIMIRI VILLAGE AND POST, HOSDURG TALUK
KASARGOD DISTRICT.
BY ADV. SRI.SURESH KUMAR KODOTH
RESPONDENT(S)/PETITIONERS:
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1. SHEENA P., AGED 28 YEARS
D/O.RAMAKRISHNAN.P, RESIDING AT THERU
KARIVELLUR VILLAGE AND POST, TALIPRAMBA TALUK
KANNUR DISTRICT.
2. DEVANANDA
MINOR, REPRESENTED BY HER MOTHER SHEENA.P
FIRST RESPONDENT, RESIDING AT THERU
KARIVELLUR VILLAGE AND POST, TALIPRAMBA
KANNUR DISTRICT.
R1 & R2 BY ADV. SRI.T.MADHU
THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD
ON 09-04-2014, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
sab/
P. UBAID, J.
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R.P(FC).No. 53 of 2014
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Dated this the 9th day of April, 2014
O R D E R
The maintenance order passed by the family court, Kasarkode against the revision petitioner herein in MC 25/2010 is under challenge in this revision. The respondents herein claim to be the wife and the minor daughter of the revision petitioner. They brought claim before the trial court under section 125 of Code of Criminal Procedure . It is alleged that the revision petitioner married the first respondent on 22.04.2007 at Sree Sankara Narayana temple, Maduramkai, in Hosdurg Taluk and the second petitioner was born in the said wedlock. At the advanced stage of pregnancy, she was assaulted by the revision petitioner, and when she found it difficult to continue with him she left the matrimonial home.
2. The revision petitioner entered appearance in the trial court and filed counter statement denying the marriage and paternity. He pleaded in the counter statement that on 22.04.2007, he happened to marry the first claimant under threat and compulsion, and such a marriage happened to be registered in the Registrar's Office.
R.P(FC).No. 53 of 2014 2
3. The trial court conducted enquiry in the proceedings and recorded evidence on both sides. The first claimant and two witnesses were examined and Exts.A1 and A2 were marked on the side of the claimants. The revision petitioner examined himself as RW1 and Exts B1 and B2 series were marked on his side. Exts.X1 and X2 documents were marked through PW2. On an appreciation of evidence, the trial court found that the first claimant is the legally wedded wife of the revision petitioner, and that the second claimant is his daughter born in the said wedlock. Accordingly, the trial court directed the revision petitioner to pay maintenance to the first claimant at the rate of Rs.1,000/- per month and to the second claimant at the rate of Rs.500/-per month, by order dated 26.05.2011 in MC No. 25/10.
4. On hearing both sides, and on perusal of the case records, I find that the revision petitioner has in fact practically admitted the marriage and paternity, though he happened to deny it in the counter statement. His request to undergo DNA test was allowed by the trial court, but the revision petitioner did not turn up for such a test, for reasons known to him. The first respondent gave evidence as PW1, proving the marriage R.P(FC).No. 53 of 2014 3 and also the paternity of the child. Ext.X1 document will show that on 28.02.2010, the revision petitioner married another lady, when the marriage with the first respondent was subsisting. When the revision petitioner denies paternity, there is no scope for enquiry regarding any offer or reunion. The court's concern is only whether the first respondent has proved the factum of marriage.
5. The first claimant has given definite evidence regarding the factum of marriage and the ceremonies of marriage. In fact, the revision petitioner has practically admitted the marriage subject to his contention that he happened to marry the first respondent under threat and compulsion. When the factum of marriage is admitted practically, it is for the husband to prove otherwise that the marriage is not valid, or that it is voidable or void. Till the revision petitioner obtains orders from the competent court, as regards the marriage, the only finding possible is that he is the husband of the first respondent, when the factum of marriage is admitted. Once the factum of marriage is admitted, the second claimant born in the said wedlock will have to be accepted as the legitimate child of the revision R.P(FC).No. 53 of 2014 4 petitioner. The said child was born during the continuance of the admitted marriage.
6. It is not know why the revision petitioner evaded DNA test which the trial court permitted during trial. Once the factum of marriage is admitted, the legitimacy of the child will have to be presumed under Section 112 of the Evidence Act. I find that the first respondent is the legally wedded wife of the revision petitioner and that the second respondent is his legitimate daughter born in the said wedlock. When the revision petitioner does not have any other defence, he will have to be directed to make payment of maintenance to his wife and child.
7. It has come out in evidence that the revision petitioner is a medical representative. He has admitted in evidence that he had worked as representative in different companies, but he does not say definitely what exactlyis his income.
8. I find that the amount fixed by the trial court is quite reasonable, and it does not require any interference by this Court. I do not think that a wife aged 25 years and a daughter aged about 3 years now can live with Rs.1,500/- per R.P(FC).No. 53 of 2014 5 month. Any way in the absence of claim or revision by the wife and child, enhancement in maintenance cannot be made. I find that there is absolutely no scope or interference in the order of the trial court on the ground of any irregularity or illegality. This is not a case where the factum of marriage as such is denied by the revision petitioner.
In the above circumstances, I find that the revision is liable to be dismissed, and it is accordingly dismissed.
P.UBAID, JUDGE jm/