Kerala High Court
Savier P.M vs Elsy Joseph on 31 December, 2007
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
WEDNESDAY, THE 4TH DAY OF DECEMBER 2013/13TH AGRAHAYANA, 1935
RPFC.No. 277 of 2010 ( )
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(AGAINST THE ORDER IN MC.NO. 219/2006 OF FAMILY COURT, KANNUR
DATED 31-12-2007)
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REVISION PETITIONER/COUNTER PETITIONER:
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SAVIER P.M.,S/O. MATHAI,
PUTHEN PARAMBIL, THIRUMENI AMSOM,
NARAMBU DESOM,PRAPOYIL (PO), KANNUR.
BY ADVS.SRI.O.V.MANIPRASAD
SRI.LIJO KURIAN JOSE
RESPONDENT(S)/PETITIONER:
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1. ELSY JOSEPH,W/O.SAVIER, @ THANKACHAN,
PANATHANATH HOUSE, THIRUMENI AMSOM,
PULINGOME DESOM,THABORE (PO), PIN-670 511.
2 . SRADHA, D/O.ELSY JOSEPH,
PANANTHANATH HOUSE, THIRUMENI AMSOM,
PULINGOME DESOM,THABORE (PO),PIN- 670 511.
3. SAMASTHA, D/O.ELSY JOSEPH,
PANANTHANATH HOUSE, THIRUMENI AMSOM,
PULINGOME DESOM, THABORE (PO), PIN-670 511.
R1 BY ADV. SRI.M.V.AMARESAN
SRI.V.N.RAMESAN NAMBISAN
THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD
ON 04-12-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
sts
K. HARILAL, J.
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R.P.(F.C.) No.277 of 2010
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Dated this the 4th day of December, 2013
ORDER
The Revision Petitioner is the respondent in MC No.219 of 2006 of the Family Court, Kannur. He is the husband of the 1st respondent and father of the respondents 2 and 3. They filed the above petition under Section 125 of the Code of Criminal Procedure (for short Cr.P.C.) seeking maintenance allowance from the Revision Petitioner. According to the 1st respondent she is the legally wedded wife of the the Revision Petitioner and respondent numbers 2 and 3 are children born in that wedlock. The revision petitioner is legally liable to pay maintenance allowance to them. But he has been refusing to maintain the respondents. He refused to pay maintenance allowance to them from the year 2004 onwards. The revision petitioner is working as commission agent and he is getting Rs.25,000/- per month where as the respondent has no job or income. R.P.(F.C.) No.277 of 2010 2 Now the respondents are depending upon the parents of 1st respondent. The respondents claimed maintenance allowance @ Rs.1000/- each per month. The Family Court directed the revision petitioner to pay maintenance allowance @ Rs.600 to 1st respondent and @ Rs.400/- each to respondents 2 and 3. This order is under challenge in this revision petition.
2. The revision Petitioner filed a counter statement admitting the marriage with 1st respondent but denied the paternity of the 2nd and 3rd respondents. He denied the allegations of cruelty and harassment levelled against him by the 1st respondent. He contended that the 2nd and 3rd respondents are the children of one Johnson who is none other than the brother- in- law of the 1st respondent. According to him 1st respondent is employed at Bangalore and getting more than Rs.12,000/- per month. He claims that he is working as a rubber tapper only and he finds difficulty even for maintaining his aged parents.
3. Heard both sides. The learned counsel for the revision petitioner and the learned counsel for the R.P.(F.C.) No.277 of 2010 3 respondents advanced arguments on the basis of the rival contentions raised in the MC proceedings. The learned counsel for the revision petitioner further sought for remanding the case back so as to get further opportunity to adduce evidence.
4. In view of the rival contentions the short question that arises for consideration is, whether there is any illegality or impropriety in the impugned order directing the revision petitioner to pay maintenance allowance to the respondents @ as specified above.
5. Going by the impugned judgment it could be seen that the marriage with the 1st respondent is admitted. But denied the paternity of the respondents 2 and 3. Though he denied the paternity, no evidence either oral or documentary had been produced to substantiate his contention. As rightly observed by the court below, the challenge against the paternity of 2nd and 3rd respondents stands as a bald allegation without proof. Therefore, as rightly found by the court below, the 1st respondent is entitled to get the benefit of the legal presumption under R.P.(F.C.) No.277 of 2010 4 Section 112 of the Indian Evidence Act. The revision petitioner is bound to suffer the presumption that 2nd and 3rd respondents are his children unless and until he is able to rebut the presumption or he is able to get a decision from competent civil court declaring that 2nd and 3rd respondents are not his children. Therefore, I also concur with the findings of the court below that the revision petitioner is liable to pay maintenance allowance to the 2nd and 3rd respondents as they are the children of the revision petitioner born in the wedlock with 1st respondent.
6. The next point to be considered is whether the court below can be justified in determining the quantum of the maintenance allowance. Put it differently, is the quantum of maintenance allowance determined by the court below proper and justifiable. Though the revision petitioner contended that the 1st respondent is employed at Bangalore and getting Rs.12,000/- per month, no evidence has been adduced to substantiate the said contention. The revision petitioner has no case that he is R.P.(F.C.) No.277 of 2010 5 unhealthy or disabled or incapacitated to do work so as to earn livelihood for his wife and two children. An able bodied man is presume to be having sufficient earning capacity to earn for livelihood of his family.
Having regard to the standard of life and the living cost of the respondents, I find that the quantum of maintenance allowance fixed by the Family Court is just and proper and does not call for any interference under revisional jurisdiction. Hence, this revision petition is dismissed.
Sd/-K.HARILAL JUDGE MJL