Paternity must be established for maintenance claims; the failure to provide support is legally actionable under Section 125 of the Criminal Procedure Code.

JUDGMENT

The revision petitioner, who is the respondent in M.C.No.339/2013 of the Family Court, Thrissur, challenges the direction to pay maintenance u/s.125 of the Code of Criminal Procedure . The above maintenance petition, M.C.339/2013 was filed by the wife and child who are 1st and the 2nd respondents in this revision petition. The petitioner wife claimed maintenance at the rate of ₹8,000/- for her and ₹4,000/- to the 2nd respondent, minor child. Her marriage with the revision petitioner was solemnized on 27.12.2010 as per Hindu Customary rites and in the wed lock, the 2nd respondent born to them. The RPFC No.124/2015 2 revision petitioner treated the 1st respondent with cruelty and showed paranoiac behaviour and doubted the chastity of the 1st respondent. In the circumstances, from 11.5.2013 onwards she was residing with his parents and she claimed the above amount as maintenance. The revision petitioner is working as a Computer Engineer and getting more than ₹35,000/- per month. In the circumstances, she approached the Family Court.

2. In the trial Court, the husband revision petitioner resisted the above contention and contended that the wife is residing in her parent's house without any reason. He denied the paternity of the 2nd respondent and raised a false allegation that she is in love with one Ashokan and it is not possible her to live without Ashokan. Therefore, he filed O.P.No.431/2013 for divorce and wife filed O.P.No.477/2013 for getting back her gold ornaments in the Family Court, Irinjalakuda. The learned Judge, RPFC No.124/2015 3 Family Court examined the 1st respondent wife as PW1 and her documents were marked as Exts.P1 & P2. The revision petitioner was examined as RW1 and his documents were marked as Exts.D1 to D3. After considering the rival contention, the learned Family Court Judge was of the view that the husband has sufficient means and directed the revision petitioner to pay maintenance at the rate of ₹ 4,000/- to the 1st respondent and ₹2,500/- to the 2nd respondent from the date of petition. Being aggrieved by that, the husband preferred this revision petition.

3. When the revision petition came up for hearing, I have perused the order of the Family Court to find out whether any illegality or irregularity has been committed in its proceedings. The revisional jurisdiction can be invoked for the purpose of satisfying itself to the correctness, legality or propriety of any finding, sentence or order, recorded or passed by the courts below and it is RPFC No.124/2015 4 a supervisory jurisdiction to rectify miscarriage of justice. The revision petitioner disputed the paternity of the child. In the circumstances, this Court as per the order dated 13.8.2015 in Crl.M.A.No.4383/2015 directed to conduct DNA test and observe as follows:

“3. On consensus of both parties, this Court referred the matter for mediation and after mediation the Mediator has reported that the dispute between the parties can be settled only after determining the paternity of the minor second respondent as the paternity of the child is the basis of the entire disputes. Both counsel appearing for the respective parties agree with the report.

4. Going by the impugned order it is seen that, earlier, the petitioner had filed a petition before the Family Court seeking DNA test and the same was dismissed by the court accepting the objection raised by the respondents and thereafter the petitioner preferred a revision before this Court and this Court also affirmed the order dismissing the application seeking DNA test, accepting the objection raised by the respondents. But now the respondents also agree with the opinion of the Mediator that the entire dispute can be resolved by determining the paternity of the second respondent only.

5. Considering the better interest of both parties, I find that, even though the application seeking DNA test was dismissed earlier by the Family Court and the dismissal was affirmed by this Court also, in view of the c