Abdul Asif.B vs Kadeejath Fareesa.B.M
2023 Latest Caselaw 585 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
            THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
    THURSDAY, THE 12TH DAY OF JANUARY 2023 / 22ND POUSHA, 1944
                       RPFC NO. 311 OF 2022
 AGAINST THE ORDER/JUDGMENT MC 10/2018 OF FAMILY COURT, KASARAGOD
REVISION PETITIONER/RESPONDENT:

          ABDUL ASIF.B.,
          AGED 34 YEARS
          S/O. BEERAN. B. (LATE), R/AT VALIYA MOOLA,
          ERMALAM , POST ALAMPADY, MUTTATHODY VILLAGE,
          KASARAGOD DISTRICT 671 123.
          BY ADV M.M.LAIJU NISSA


RESPONDENTS/PETITIONERS:

    1     KADEEJATH FAREESA.B.M
          AGED 24 YEARS
          D/O. NASAR, R/AT CHERIKODE,
          THEKKIL FERRY POST,
          KASARGOD TALUK AND DISTRICT 671 123.
    2     FATHIMATH ARSHANA,
          DOB 15.2.17, R/T CHRIKODE,
          THEKKIL FEERY POST,
          KASARAGOD TALUK AND DISTRICT,
          MINOR, REP. BY KADEEJATH FAREESA.B. M.
          NEXT FRIEND 671 123.
          BY ADV LINDA.M.J.
          SRI.G.SUDHEER, PUBLIC PROSECUTOR
     THIS REV.PETITION (FAMILY COURT) HAVING COME UP FOR ADMISSION
ON 12.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 RPFC NO. 311 OF 2022
                               2

                          ORDER

Dated this the 12th day of January, 2023

This revision petition has been filed under Section 19(4)

of the Family Courts Act, challenging order in MC No.10/2018

dated 04.12.2019 on the file of the Family Court, Kasargod

whereby the learned counsel Family Court Judge granted

maintenance to the second minor respondent, aged 5 years

(as of now) to the tune of Rs.4,750/- from the date of petition.

The revision petitioner is the respondent in the above MC. The

respondents herein are the petitioners in the above MC.

2. Heard the learned counsel for the revision petitioner

and the learned counsel appearing for the respondents.

3. The short facts are as follows:

The case put up by the first respondent before the

Family Court was that while she was working as a sales girl at

Gold Palace, Kasargod, the revision petitioner/respondent was

working as Floor Manager in the said shop. Thereafter, they RPFC NO. 311 OF 2022

fell in love and the revision petitioner/respondent promised her

to marry. On the promise of marriage, she was taken on

Mangalore and they had sexual intercourse on several times.

As a result of the same, she conceived and revealed the said

fact to the revision petitioner/respondent and requested him to

marry her. But the revision petitioner/respondent did not marry

her and accordingly, crime was registered alleging

commission of offence under Section 376 of IPC and the same

had been pending. The first respondent further contended that

she did not have any means of maintenance to maintain

herself as well as the child and they had been living at the

mercy of their relatives. It was further contended that the

revision petitioner/respondent had been earning Rs.30,000/-

per month from real estate business and also he had landed

properties. Accordingly, Rs.5,000/- for the second respondent-

minor child was sought for.

4. The revision petitioner/respondent filed objection

denying the relationship as well as the paternity of the minor. RPFC NO. 311 OF 2022

He also denied the job and income as contended.

5. It is to be noted that since such a contention was

raised, it is the duty of the revision petitioner to prove the

same, he did not take any steps to prove this contention.

However, the first respondent filed petition for getting DNA test

result of the revision petitioner. The Family Court, on the

application of the first respondent/petitioner, directed the

revision petitioner/respondent to undergo DNA test to

ascertain the dispute regarding the paternity of the child. But

the revision petitioner/respondent willfully not co-operated with

DNA test and ultimately he was set ex parte by the Family

Court. Acting on the evidence of PW1 and taking note of the

attitude of the revision petitioner/respondent in not subjecting

himself to DNA test, the Family Court granted maintenance at

the rate of Rs.4,750/- per month to the second minor

respondent/petitioner.

     6.    The     learned     counsel     for   the    revision
 RPFC NO. 311 OF 2022

petitioner/respondent argued that since the revision petitioner

denied the paternity of the child, he may be given an

opportunity to prove the same.

7. Whereas it is submitted by the learned counsel for

the respondents that the minor child was born in between the

relationship between the revision petitioner and the first

respondent herein, since they had sexual intercourse, on the

promise of marriage, after having maintained a love

relationship between them and the revision petitioner is well

aware the fact that, the minor child is his own and he is the

biological father, he did not opt for DNA test and granting

another opportunity to do the same is nothing but dilatory

tactics etc. She also would submit that, later, the revision

petitioner married another lady and has been denying

maintenance to the minor second respondent, and the first

respondent is ailing and trailing to maintain the minor child.

She also submitted that now the minor is in penury and grant

of one more opportunity for DNA test would be fatal to the RPFC NO. 311 OF 2022

minor. She also submitted that Rs.4,750/- alone was the

amount granted by the Family Court and therefore, the order

impugned does not require any interference.

8. Going by the order impugned, it could be seen that

the revision petitioner/respondent filed objection before the

Family Court denying the paternity of the minor. Eventhough it

is the duty of the revision petitioner/respondent to prove the

same by the mode known to law, preferably DNA test, he did

not opt for the same.

9. The first respondent herein took the responsibility

and filed an application to subject the revision petitioner for

DNA test. But he willfully absent from the Family Court and

later, he was set ex parte and the order impugned has been

passed.

10. In the above context, if an opportunity is given to

the revision petitioner/respondent to prove the denial of

paternity, after subjecting himself for DNA test, the life,

education and survival of the minor could be in trouble and RPFC NO. 311 OF 2022

therefore, the revision petitioner, who willfully absent without

subjecting himself for DNA test, on the application filed by the

first respondent herein, is not entitled to get a second

opportunity to do the same. Going by the evidence of PW1

and the consistent case pleaded by the first respondent

herein, it could be held that the revision petitioner is the

biological father of the second respondent, since he was not

ready even subjecting himself for DNA test to prove the said

contention. It is to be noted that in 2018, the revision

petitioner was aged 29 years and he did not raise any

contention that he is incapacitated in any manner to earn a

reasonable amount. According to PW1, he had been getting

Rs.30,000/- per month from real estate business and also

getting income from his landed property. Therefore, the grant

of maintenance at the rate of Rs.4,750/- to the minor found to

be very reasonable in the context of the facts, circumstances

and evidence before the Court. Therefore, the said order does

not require any interference. Accordingly, the revision petition RPFC NO. 311 OF 2022

stands dismissed.

11. It is submitted by the learned counsel for the

respondents herein that the maintenance granted by the

Family Court has been kept in arrears and as on today,

Rs.2,13,000/- (Rupees two lakh thirteen thousand only) is

outstanding.

Therefore, there shall be a direction to the revision

petitioner to deposit the entire arrears of maintenance, within a

period of 45 days, from today. On failure to do so, the Family

Court is directed to enforce the order, acting on proper

application filed by the petitioner, in accordance with law.

Registry is directed to forward a copy of this order to the

court below concerned, within two weeks, for information and

compliance.

Sd/-

A. BADHARUDEEN JUDGE nkr