Kerala High Court
Usman vs Badarunisa on 2 November, 2006
Author: R.Basant
Bench: R.Basant
IN THE HIGH COURT OF KERALA AT ERNAKULAM
RP(Family Court) No. 223 of 2006()
1. USMAN, S/O. LATE ABDUL KADHAR,
... Petitioner
Vs
1. BADARUNISA, W/O. USMAN,
... Respondent
2. SHARIN (MINOR), D/O. USMAN,
3. SHADH (MINOR), S/O. USMAN,
For Petitioner :SRI.P.K.MUHAMMED
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :02/11/2006
O R D E R
R. BASANT
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R.P.(F.C) NO.223 of 2006
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Dated this the 2nd day of November, 2006
ORDER
Can the petitioner be granted a further opportunity to adduce fresh evidence to substantiate his contentions by remand ? This is the vital question that falls for consideration.
2. This revision petition is directed against an order passed under Section 125 Cr.P.C directing the petitioner to pay maintenance at the rate of Rs.1,500/-, Rs.1,000/- & Rs.750/- per mensem respectively to his wife and two minor children. Marriage and subsistence of the marriage are admitted. The paternity of the second claimant is also admitted. That the third claimant was born during the subsistence of the marriage is again conceded. But there is a dispute raised about the paternity of the third claimant/second child.
3. The petitioner was admittedly employed abroad. The second child was born when the petitioner was employed abroad. The petitioner appears to entertain a doubt/suspicion/apprehension that the second child is not born to him. He further alleges that the 1st claimant wife is having adulterous intimacy with her sister's husband. The petitioner makes himself bold to allege that the third claimant/ child is born in that adulterous relationship between the 1st claimant R.P.(F.C) NO.223 of 2006 2 and her brother in law. He further contends that the wife is not unable to maintain herself. It is also his contention that he does not have the means to pay the amounts claimed by the claimants. Interestingly he crowns his other contentions with the contention that he is willing to maintain his wife on condition that she lives with him.
4. Before the Family Court, there was the evidence of the 1st claimant/wife as PW1 and the petitioner herein as RW1. His brother was examined as RW2. Exts.B1 to B3 were brought in evidence, but not proved. Ext.B1 is allegedly a letter issued by Khatib of a local mosque. Exts.B2 & B3 are allegedly copies of letters sent by the 1st claimant wife to her brother in law which the brother in law had allegedly produced before the Khatib who wrote Ext.B1 letter.
5. The learned Judge of the Family Court came to the conclusion that there was absolutely no material to conclude that the second child, the 3rd claimant is not the child of the petitioner herein. Interestingly the 1st claimant/wife did not bank on the presumption under Section 112 of the Evidence Act and offered to subject the claimant to the D.N.A test. The petitioner developed cold fact and did not press his prayer to get the D.N.A test conducted. Thus the court below found no merit in the dispute regarding the paternity of the 2nd child/3rd claimant. The court further found that the plea of adultery has not been established. The court also took note of the R.P.(F.C) NO.223 of 2006 3 ridiculous nature of that plea raised simultaneously by with the offer to maintain the wife on condition that she lives with him. On the materials available, the court found that the quantum of maintenance referred above can be directed to be paid. Accordingly the court below proceeded to pass the impugned order.
6. The learned counsel for the petitioner has advanced detailed arguments. He first of all contends that the paternity of the second child has not been proved. There is a conclusive presumption under Section 112 of the Evidence Act, which can be rebutted only in the manner contemplated under Section 112 of the Evidence Act. There is not a scintilla of satisfactory evidence to conclude that RW1 had no access to PW1 at the probable time when the third claimant/second child could have been conceded. Adverse inference must necessarily be drawn against the petitioner from his proved conduct of not getting the D.N.A test conducted as initially demanded by him notwithstanding the consent given by the 1st claimant/wife.
7. Less said about the second plea regarding adultery, the better. Bottom is knocked out of that contention when we come across the shameless simultaneous offer made by the petitioner to maintain his wife on condition that she lives with him. That offer is the antithesis of the theory of adultery. No evidence whatsoever has been produced to indicate, probabilise or prove the plea of adultery. R.P.(F.C) NO.223 of 2006 4 Exts.B1 to B3 have not been proved and in the light of the offer made by the petitioner, they cannot at any rate operate as satisfactory circumstances to resist the claim for maintenance.
8. All guns are trained by the learned counsel for the petitioner at the quantum fixed by the court below as maintenance. We have admitted evidence to show that the petitioner was employed abroad for a long period. The evidence of the claimant/PW1 shows that the petitioner runs a business. The petitioner takes shelter behind the plea that the business does not belong to him, but belongs to his brother. He was in the best position to substantiate that contention. No attempt whatsoever was made to substantiate that contention. Going by the available indications about the means of the petitioner and the needs of the claimants, the quantum of maintenance fixed cannot be said to be incorrect or improper, much less perverse. Nor does it lead to miscarriage of justice which alone can persuade this Court to interfere with the discretion exercised by the court below in the matter of fixing the quantum.
9. The learned counsel for the petitioner finally prays that the matter may be sent back to the court below for fresh disposal, giving the petitioner opportunity to substantiate the various contentions that have been raised. Remand cannot be a matter of indulgence on the part of the superior court. It is for the party to R.P.(F.C) NO.223 of 2006 5 satisfy the Court why and under what circumstances necessary evidence could not be adduced at the appropriate stage. The impression that every error/inadequacy in the conduct of the case can be corrected at later stages and the courts in their anxiety to do substantial justice will condone all such errors/inadequacies and give fresh leaves of life to cases has contributed, in no mean measure, to the scandalous delay in the judicial process. Life does not give persons such a further opportunity to set the clock back and start the game of life afresh. Litigation cannot attempt to do that. I find no reason to indulge in any such indulgence. Absolutely no circumstances are shown to exist as to why the petitioner did not and could not adduce the necessary evidence before the Family Court. I turn down the prayer for a further opportunity to adduce evidence.
10. This revision petition is, in these circumstances, dismissed.
(R.BASANT, JUDGE) rtr/ R.P.(F.C) NO.223 of 2006 6