SAJITHA Vs. STATE OF KERALA

JUDGEMENT

(1.) Wife and her child alleged to be born in the lawful wedlock have come up in revision against the order passed by the learned Family Court Judge, Manjeri in M.C. 95/2000 whereby the learned Judge refused to award maintenance to the child, who is the second petitioner in the M.C., holding that the child was conceived at least one month prior to the marriage i.e., child was conceived as a result of premarital sexual intercourse by mother with another and she is not the child born in the lawful wedlock. First petitioner in the M.C. dissatisfied with the quantum of maintenance awarded to her by the Family Court at the rate of Rs. 300 per month preferred R.P. (F.C.) No. 69/2002. Aggrieved by the order awarding separate maintenance to the wife, the husband preferred R.P. (F.C.) No. 55 of 2000. Both the revisions are heard together and are being disposed of by a common order.

(2.) It is the admitted case of both the parties that the marriage of 1st petitioner in the M.C. with the respondent in the M.C. was solemnized on 1st November, 1998 in accordance with the customary rites prevalent in the Muslim community and it is also the common case of the parties that 2nd petitioner in the M.C. was born on 30-6-1999 i.e., child was born within 243 days of contracting the marriage. The assertion made in the application filed under S. 125 Cr.P.C. by the petitioners in the M.C., shorn of unnecessary details is that in the first two months of marriage behaviour of the husbandrespondent towards the first petitioner wife was very cordial and thereafter he demanded for bringing from her mother Rs. 1 lakh for the purpose of continuing his business (that amount was demanded in addition to the amount and ornaments already given by her mother at the time of marriage). Wife expressed her helplessness in bringing more money from her mother due to the strained condition of her mother and she was subjected to mental and physical cruelty by the husband insisting for brining Rs. 1 lakh. She became pregnant and in the seventh month of pregnancy she was taken to her natal home for delivery. At the time of taking her by her relatives for delivery, they were told by the husband that she need to return to the matriomonial home only if she brings Rs. one lakh. She had given birth to a child on 30th June, 1999 at B.M. Hospital, Pulikkal and on getting information regarding the birth of the child the husband visited the hospital. It is also asserted in the application filed under 5. 125 Cr. P.C. that the husband had not met the delivery expenses nor provided any maintenance to the petitioners. The wife was not taken to the nuptial home after three months of delivery (that is the custom) and, on enquiry made by the relatives of the wife, they were told that she would be taken to the nuptial home only if the amount demanded by the husband was paid. Thus, the petitioners in the M.C. pleaded a case of nonproviding of maintenance to the wife after she was taken to the nuptial home and also nonproviding of any maintenance to the child after the child was born. Wifes further case is that monthly income of the husband is Rs. 10,000/-.

(3.) Husband refuted the allegations made against him by the wife and 2nd petitioner in the application and in the counter statement he denied the paternity of the child. He admitted the fact of solemnisation of marriage in accordance with the customary rites prevalent in the Muslim community in the counter statement filed by him and also admitted the fact of living together as husband and wife in the nuptial home. He denied the asserted fact of giving any ornaments or money at the time of marriage and his case was that the mother of the wife was not in position to give ornaments and money to him at the time of marriage. He asserted in the counter statement that he married the first petitioner in the M.C. knowing fully well the poor economic condition of her mother. His assertion in the counter statement was that he had met the entire hospital expenses in connection with the delivery of the wife from the hospital and also asserted in the counter statement that after delivery also he had provided maintenance to the wife. Denying paternity of the 2nd petitioner, the husband set up a case in his counter statement that wife confessed before him that before the marriage she had sexual intercourse with another. She had indulged in sexual intercourses with another and she refused to have sexual intercourse with him. Thus, he denied the liability to provide maintenance to the child. According to him, the child was conceived even before contracting of marriage with him. He disclaimed his liability or obligation to provide maintenance to the wife on the ground that she had sexual intercourses with others. Regarding his income the case set up is that he is a coolie and earning daily Rs. 40 as wages.