Kerala High Court
Naseer.P vs Noorjahan A.P on 19 September, 2015
Author: P.Ubaid
Bench: P.Ubaid
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.UBAID
TUESDAY, THE 22ND DAY OF MARCH 2016/2ND CHAITHRA, 1938
RPFC.No. 115 of 2016
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AGAINST THE ORDER IN MC 498/2013 of FAMILY COURT, TIRUR DATED
19-09-2015
REVISION PETITIONER/RESPONDENT IN THE MC :
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NASEER.P, AGED 28 YEARS,
S/O. MOOTHEDATH UMMAR, MOOTHEDATH HOUSE,
MANGALAM AMSOM, KOOTTAYI DESOM, KOTHAPARAMBU,
KOOTTAYI P.O., CHAPPAPADI, TIRUR TALUK.
BY ADV. SMT.N.DEEPA
RESPONDENTS/PETITIONERS IN THE MC :
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1. NOORJAHAN A.P, AGED 28 YEARS,
D/O. MUHAMMED ABDUL KHADER, AJYARUPURAKKAL HOUSE,
MANGALAM AMSOM, KOTTAYI DESOM, KOTHAPARAMBU,
KOOTTAYI P.O., CHAPPAPADI, TIRUR TALUK-676 562.
2. MUHAMMED SHIBIL (MINOR), AGED 4 YEARS,
S/O. NASSER P., REPRESENTED BY HIS MOTHER
NOORJAHAN, 1ST RESPONDENT, AJYARUPURAKKAL HOUSE,
MANGALAM AMSOM, KOTTAYI DESOM, KOTHAPARAMBU,
KOOTTAYI P.O., CHAPPAPADI, TIRUR TALUK,
PIN-676 562.
THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR
ADMISSION ON 22-03-2016, THE COURT ON THE SAME DAY PASSED
THE FOLLOWING:
ab
P.UBAID, J.
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R.P(FC) No.115 of 2016
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Dated this the 22nd day of March, 2016
O R D E R
The second respondent herein is a minor boy, represented by his mother. He brought claim against the revision petitioner herein under Section 125 of the Code of Criminal Procedure in the Family Court, Tirur for maintenance, claiming to be the illegitimate child of the revision petitioner. The first respondent herein is the mother of the child.
2. The revision petitioner entered appearance in the trial court and resisted the claim on the contention that he had no connection at all with the mother of the claimant. Thus he denied the paternity. The trial court recorded evidence on both sides. The mother of the claimant examined herself as PW1 and the revision petitioner examined himself as RW1. Exts.P1 and P2 were also proved on the side of the claimant. During the proceedings the blood samples of the parties were collected and sent for DNA test. On an examination of the blood samples the scientific expert submitted report that the revision petitioner is the biological father of the claimant child. His mother also R.P(FC) No.115 of 2016 2 adduced evidence on facts proving the alleged incident in which she became pregnant, and she affirmed that the claimant is the son of the revision petitioner. Evidence satisfied the court that the child was born as the product of the rape committed by the revision petitioner. Accordingly, the trial court directed the revision petitioner to pay maintenance to the child at the rate of 3,000/- per month by order dated 19.9.2015 in M.C No.498/2013. Aggrieved by the said order in favour of the illegitimate child, this revision is brought under Section 19(4) of the Family Courts Act.
3. The respondents herein remained absent inspite of notice. Thus there is no contest in this revision wherein the quantum of maintenance is challenged prominently. As regards the finding on facts, it appears that the revision petitioner has not much dispute on facts. The claimant's mother has given definite evidence proving that the revision petitioner is the father of her child. This stands further proved by the DNA report. Thus, I find that the revision petitioner cannot have any dispute regarding the findings of the court that he is the father of the child. It appears that his grievance is prominently regarding the quantum of maintenance. The revision petitioner R.P(FC) No.115 of 2016 3 is admittedly a coolie working in the fishing field. True it is, that he does not have any stable or definite income. However, the trial court assessed his income as 10,000/- per month. From out of this 3,000/- is ordered as maintenance to the child. The age of the child at the time of claim was two years and three months. The quantum of maintenance and also the requirement of the child will have to be assessed as on the date of claim. On a consideration of all the relevant aspects, including the age of the child at the time of claim and also the probable income of the respondent as a coolie, I feel it appropriate to modify the amount of maintenance and to reduce it to 2,500/- per month, which will be 1/4th of the total income assessed by the trial court. To this very limited extend this revision can be allowed in part. It is made clear that the amount of maintenance modified by this Court will be subject to appropriate enhancement under Section 127 of the Code of Criminal Procedure, as and when circumstances change, and the needs and necessities of the child increase.
In the result, this revision petition is allowed in part. The maintenance award in favour of the second respondent, passed by the court below on 19.9.2015 in M.C No.498/2013 will R.P(FC) No.115 of 2016 4 stand modified to the effect that the amount of maintenance payable to the child shall be 2,500/- per month, payable from the date of claim as ordered by the trial court.
Sd/-
P.UBAID JUDGE //True Copy// P.A to Judge ab