P. RAJEEVAN Vs. KALLIANI

JUDGEMENT

(1.) THIS revision is directed questioning the order passed by the Family Court, Kozhikode in M. C. No. 341 of 1992. That M. C. was filed for the minor second respondent through his mother first respondent claiming maintenance from the revision petitioner.

(2.) THE grounds taken by respondents 1 and 2 for claiming maintenance would be briefly as follows: First respondent had married one Kunhikannan and through that wedlock, a daughter was born. Thereafter some ill feeling arose between the first respondent and Kunhikannan. Therefore, as per the customs prevailing in the Thiyya Community their marriage was dissolved some 7 or 8 years prior to the examination of PW 1 (first respondent) in the court below during the month of November, 1991. While the first respondent was residing with her brother and mother in their house which is at a distance of about 1 1/2 kms. away from the residence of Kunhikannan, she developed some illicit intimacy with the revision petitioner. On account of the illicit intimacy she conceived. In respect of her conceivement on account of her access with the revision petitioner some mediation was held in which PW 3 took the vital part, who is related to revision petitioner. The child (second respondent) was born on 26-3-1990 regarding which an entry was made in the Quilandy Panchayat. First respondent, therefore filed the above M. C. before the court below claiming maintenance for the second respondent. The above contention of the first respondent was strongly opposed by the revision petitioner in his counter by stating that the first respondent was leading an immoral life, that particularly she was having sexual contact with one Raghavan Nair and Balora Meethal Kunhikannan, that the revision petitioner advised her to disown the immoral activities and particularly with Raghavan Nair and Balora Meethal Kunhikannan, that on account of that advice, she developed a grudge against him, that on account of the above said motive she filed the petition before the court below for maintenance, that he had no sexual contact with her at any time nor was the second respondent was born to her through him, etc.

(3.) MR . T. G. Rajendran, learned counsel for the revision petitioner, submitted that having admitted the marriage between the first respondent and Kunhikannan it is idle on the part of the first respondent to set forth that the second respondent was not born to her through Kunhikannan, her husband, particularly when there is no satisfactory evidence to the effect that their marriage was dissolved. To strengthen the above contention he would mainly rely upon the provisions enjoined in S.112 of the Indian Evidence Act (for short 'the Act'). Per contra, Mr. Mani Prasad, learned counsel for respondents 1 and 2, would submit that there is ample evidence to the effect that the marriage between the first respondent and Kunhikannan was dissolved by the communal custom 7 or 8 years prior to the examination of the first respondent as PW 1 in the court below in the year 1991, that in addition to it there is also legal and reliable evidence that the revision petitioner had sexual contact with the first respondent and that on account of the above said sexual contact the second respondent was conceived and begotten. It is also his submission that the provision contained in S.112 of the Act cannot be availed of by the revision petitioner who is not the legally wedded husband of the first respondent. A shelter under S.112 of the Act can be taken only by one of the spouses of the marriage and not by a third party. On account of the above submissions of both the counsel, now I will examine the legal as well as the factual aspects to arrive at a decision.