Counter petitioner in MC.No.173/2011 on the file of the Family Court, Vatakara is the revision petitioner herein. 2. The petition was filed by the unmarried disabled children of the petitioner claiming maintenance against the revision petitioner. It is alleged in the petition that the respondents herein was born to the respondent in his wife by name Nabeesa. First respondent is a physically and mentally challenged person and second respondent is unmarried and sustained injuries and unable to do any work and without any income. The revision petitioner is working in a saw mill and getting Rs.600/- per day and he left the petitioners and their mother on 15.06.2005. Presently the petitioners are depending on their mother and relatives. Both the petitioners require Rs.4,000/- each for their maintenance. They have no option but to approach this court for claiming maintenance.
3. Respondent appeared and filed counter contending that the petitioners are not his children. MC.No.56/2007 was filed by the petitioners before the Family Court, and that petition was dismissed and suppressing that fact, that a present petition has been filed and so they are not entitled to get maintenance. It is admitted that 30 years back, he married Nabeesa and there were no issues in the wedlock. She was carrying at that time when he married her. After four months of marriage she delivered the child, the marriage was solemnised suppressing the fact that she was impregnated by another person. Within seven days, he came to know about the same and thereafter there was no relationship between them. Second petitioner was also born in some other person other than the respondent. First petitioner is aged 32 years and the second petitioner is aged 30 years. They have no physical or mental disability and they are capable of earning themselves. They used to go household work and getting Rs.150/- per day. They are also having property and getting income of Rs.5000/- per year. He has no source of income. He aged 60 years and occasionally he goes for work in a saw mill and getting Rs.200/- per day. He has to look after his old mother and wife and children. As per the orders of the Family Court, the mother of the petitioners were granted maintenance @ Rs.1300/- per month which he is paying. So, he is finding it difficult to pay the amount. So, he prayed for dismissal of the application.
4. First petitioner was examined as PW1 and respondent was examined as RW1. After considering the evidence on record, the court below found that the petitioners are the children of the revision petitioner on the ground that he was not interested in undergoing DNA test to prove the paternity of the children and the first petitioner is mentally challenged unmarried and unable to maintain herself and second petitioner is also unmarried and not having independent income and in the case of the female children, the liability of father will extend till their marriage and on that ground found that the petitioners in the lower court are entitled to get the maintenance and fixed the maintenance @ Rs.1500- per month, which is being challenged by the revision petitioner by filing this revision.
5. Heard the counsel for the revision petitioner and the respondents. Since respondents had appeared, this court felt that the revision can be admitted and heard and disposed of on merit. So, the revision is admitted and heard and disposed of today itself.
6. The counsel for the revision petitioner submitted that as per Annexure-1 order, though they claimed maintenance along with their mother, later they have given up their right. So, they are not entitled to claim maintenance again. Further, he is an aged person. He is not getting much income and the respondents are having income of their own to maintain themselves and the amount of maintenance awarded is also high.
7. On the other hand, the counsel for the respondents submitted that merely because earlier application for maintenance has been not pressed by their mother will not disentitle them from claiming maintenance later as they were minors at that time. Further, even on a subsequent event if they are not able to maintain themselves and unmarried, they can seek maintenance from their father. So, the court below was perfectly justified in allowing the application.
8. It is an admitted fact that petitioners were the daughters born to one Nabeesa who was married by the revision petitioner some years ago. Though, he claimed that he had divorced her, no document has been proved before the court below to prove that fact. He had denied the paternity of the petitioners who claimed maintenance against the respondent. He filed an application for conducting DNA test of the petitioners and later he had withdrawn the same. So, that shows that court below had rightly drawn adverse inference against the revision petitioner as he did not pursue the application for DNA test apprehending that if it is done his case will be found to be false. Further, it was brought out in evidence that both the children were born to Nabeesa when his marriage of relationship with Nabeesa was subsisting. So, the presumption under section 112 of the Evidence Act will be attracted and there is no evidence adduced on the side of the revision petitioner to prove that the petitioners were born to some other person in Nabeesa on account of her relationship with some other person. So, under the circumstances, court below was perfectly justified incoming to the conclusion that respondents are the daughters of the revision petitioner herein.
9. It is true that Annexure-1 order, it is seen that the wife of the revision petitioner Nabeesa along with the present petitioners moved for maintenance as M.C.56/2007 and since petitioners 2 and 3 have attained majority by the time, the counsel appearing for the petitioners in that case did not press for maintenance to the major children. But that will not affect the right of the petitioners to move for maintenance independently if they can able to prove that they are still unmarried and unable to maintain themselves and the respondent is capable of maintaining them. The respondent had no case that he was providing any maintenance to them even after disposal of M.C.No.56/2007, by the Family Court, Kozhikode, earlier. It is seen from the order that their position as majors has not been recorded and they were not represented by any counsel as such and their status was shown as minors represented by the mother and only on the basis of the submission made by the counsel for the first petitioner in that case that the maintenance was not ordered to the petitioners 2 and 3 in that application who are the present respondents and petitioners before the court below. It cannot be said that they have voluntarily forfeited the right for maintenance. Further, the documents produced coupled with the evidence of PW1, will go to show that first petitioner in the lower court is a mentally challenged person and having physically disabled also. There is no evidence adduced on the side of the revision petitioner when examined as RW1 that they are doing any work and earning by themselves. So, under the circumstances, the court below was perfectly justified in coming to the conclusion that the petitioners in the lower court are entitled to get maintenance from their father who is the revision petitioner herein.
10. As regards the capacity of the revision petitioner to pay maintenance is concerned, he has admitted that he is going for work in a saw mill and he had no case that he is totally disabled from doing any work as well. So, under the circumstances, court below was perfectly justified in coming to the conclusion that the revision petitioner is liable to pay maintenance to the petitioners in the lower court. Court below had award Rs.1500/- each to each petitioners, which cannot be said to be excessive, considering the cost of living and also the status of the parties and the amount required for treatment of the first petitioner etc. So, there is no merit in the revision and the same is liable to be dismissed.
In the result, the revision is dismissed. Office is directed to communicate this order to the concerned court immediately.
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K.RAMAKRISHNAN, JUDGE R.AV //True Copy// PA to Judge