Mat.A. 624 of 2007 (Matrimonial Appeal)

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE P.R.RAMAN THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 30TH OCTOBER 2008 / 8TH KARTHIKA 1930 Mat.Appeal.No. 624 of 2007() ---------------------------- PETITIONER(S): APPELLANT/REVIEW PETITIONER/DEFENDANT S/O.MOHAMMED HANEEFA, ROAD VILLA VEEDU, RESPONDENT(S): COUNTER PETITIONERS/PLAINTIFFS **==> picture [361 x 144] intentionally omitted <==** THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 30/10/2008, THE COURT ON THE SAME DAY PASSED THE ## **ORDER ON I.A.NO.2557/2007 IN MAT.APPEAL No.624/2007** CLOSED. **SD/-P.R.RAMAN, JUDGE SD/-T.R.RAMACHANDRAN NAIR, JUDGE** 30/10/2008 \\TRUE COPY// P.A TO JUDGE ## **P.R.Raman & T.R. Ramachandran Nair, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - -** ## **M.A.No.624 of 2007** **- - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of October, 2008.** ## **JUDGMENT** ## Raman, J. This matrimonial appeal arises out of an order passed by the Family Court, Kottarakkara in I.A.No.2894/06 in O.S.No.2/06. O.S.No.2/06 was filed by the wife and minor child born in the wedlock, for maintenance. Eventually that was decreed allowing maintenance to the minor child at the rate of Rs.600/- per month from the date of the suit, i.e. from 29.9.1995. The maternal grandmother who was examined as P.W.1, was allowed to collect the amount from the defendant for the minor child. In the judgment passed by the court below, the court observed that “it is averred in the plaint that the second plaintiff daughter was born to the first plaintiff in the defendant on 13.10.1994 and that was not disputed by the defendant and he admitted in the written statement that Rs.30,000/- being his amount was remitted in the minor's name in F.D. for 10 years with Peerless General Finance and Investment. So, she is not entitled for maintenance but he is willing to maintain her if custody is given to him.” Eight years thereafter, he filed an application for amendment to incorporate that he is not the Mat.A.624/2007 -2- father of the minor but she is born to one Salahudeen. That application was dismissed by a separate order. After referring to the evidence in the case, the court below found that the defendant owns 60 cents of land and also getting Rs.10,000/- per month from that property and also interest from his bank balance. He is also an able bodied man. The minor child is studying in 7[th] standard in an English Medium school and at least an amount of Rs.7,000/- is required for the minor's maintenance and education, as spoken to by the first plaintiff. It is after considering all the above aspects that the decree was passed as stated earlier. 2. I.A.No.2894/2006 is one filed under Section 114 and Order 47 Rule 1 C.P.C. by the appellant herein, seeking to review the judgment dated 13.12.2006. The averment made in the affidavit in support of the review petition is that during the pendency of the suit proceedings, the petitioner got reliable information that the minor child who claimed maintenance, was born to the petitioner's former wife in her illicit relationship with the present husband and so, he sought to amend the written statement. That application was dismissed on 1.12.2006. On the next day, certified copy of the order was applied for. In the meanwhile, the suit was posted for trial to 12.12.2006. Though he sought for an adjournment, that was dismissed and hence a decree has been passed. The review application was objected to by Mat.A.624/2007 -3- the opposite side. It was contended that after marriage defendant has subjected her to serious cruelty; that the suit was listed for evidence in 2001 and that the defendant did not cross examine the plaintiff nor adduce any evidence. Then, on the application of the defendant for setting aside the decree, a conditional order was passed directing him to deposit a portion of the amount. That was not complied with. Though that order was challenged before this court, the order passed by the court below was upheld. Then, he filed I.A.No.584/2006 for amending the written statement. That was dismissed by the court below and posted the case for evidence to 13.12.2006. On that day no evidence was adduced. Hence, he was set exparte. It is only to defeat and delay the execution proceedings, the present application is filed. The suit itself was filed as early as in 1995 and ample opportunity was given to the defendant, but he purposefully evaded to adduce evidence. 3. The court below considered the point as to whether the judgment, in such circumstances, is liable to be reviewed. It was found that the suit itself was filed as early as in 1995 and a decree was passed on 8.10.2001 allowing maintenance at the rate of Rs.1,000/- per month. During its pendency, the grandmother of the second plaintiff filed an application for allowing her to prosecute the suit for the minor and it was allowed on Mat.A.624/2007 -4- 7.4.2001 and the grandmother was impleaded as additional third plaintiff. The ex-parte decree was challenged by the defendant before this court and later he filed an application for setting aside the ex-parte decree. That was allowed on condition of paying one half of the maintenance. Though he has challenged that order before this court, this court upheld the impugned order. So, he later complied with the condition and hence the ex-parte decree was set aside. I.A.No.584/2005 was thereafter filed for amending the written statement. It is that petition which was dismissed after hearing both sides and the case was posted for trial to 12.12.2006 on which day the plaintiff was absent. The case was adjourned to 13.12.2006. The third plaintiff was examined, but she was not cross-examined by the defendant or his counsel. No evidence was adduced by the defendant and hence he was again set ex-parte and the suit was decreed on that day. The fact that he did not get a copy of the order in I.A.No.584/2006 was held to be not a ground for review. The paternity of the child was not challenged till 2006 and admitted to be his child. But, after 11 years of filing the suit he filed I.A.No.584/2006 alleging that the minor is not his child but that of the first plaintiff's paramour. According to the court below, this amounts to bastardising the child and saying that, that ground is false, the said petition was dismissed. Further, the suit being an old one ripe for trial and the Mat.A.624/2007 -5- evidence was recorded on 13.12.2006 in the presence of the defendant and his counsel did not turn up to cross examine P.W.1, the plaintiffs' evidence was closed and the case was decreed. Thus, no mistake has crept in and there is no ground at all for reviewing the judgment and decree. It was in these circumstances that the review petition was dismissed. This appeal is directed against the said order. 4. When the matter came up before another Bench of this court, the parties were directed to be present on 31.7.2008. The appellant was present on that day, but not the first respondent. But learned counsel appearing for the respondent submitted that the respondent will be present on 6.8.2008. The appellant's submission was recorded by this court in the following manner: “The appellant submits, in case it is proved in the DNA test that he is the father of the second respondent, he will set apart 30 cents of his property to the child, and in case it is proved otherwise, the entire expenses for the DNA test shall be refunded by the first respondent, apart from refunding the maintenance amount drawn in favour of the child.” 5. On 6.8.2008 the parties were present. The appellant and the first respondent submitted that they have no objection in a DNA test being conducted in view of the dispute regarding the paternity of the child. Both Mat.A.624/2007 -6- of them submitted that the test may be conducted under the supervision of an Advocate Commissioner. Accordingly, an Advocate Commissioner was appointed. The DNA test was conducted thereafter. The test result was received by this court from Rajiv Gandhi Centre for Biotechnology. The conclusion, as per the report, is that “the DNA test performed on the exhibits provided is sufficient to conclude that the source of exhibit C (Sainudeen) is the biological father of the source of exhibit B (Ahina Fathima @ Sajini). The source of exhibit A (Nusaifa Beevi) is the biological mother of the source of exhibit B (Ahina Fathima @ Sajini).” Therefore, as submitted by the appellant, he is bound to set apart 30 cents of his property to the child as is now proved as per the DNA test that he is the father of the minor child born to the respondent herein through him. 5. When the matter came up for consideration before this court on 24.9.2008, we passed an order based on the DNA test report, giving time to report the manner in which he is going to comply with his submission recorded, to set apart 30 cents of land to the minor. Later, the learned counsel who was appearing for the appellant was changed and in his place the party engaged another counsel. The counsel submitted that his client is not willing to abide by the submissions as recorded by this court earlier. Learned counsel for the respondent, on the other hand, submitted that the Mat.A.624/2007 -7- whole exercise of conducting the DNA test was undertaken in the presence of the Advocate Commissioner as ordered by this court based on the submission made by the appellant that in case the DNA test proves that he is the father, he will set apart 30 cents of property in favour of the minor child. He also put a condition that in case it is proved otherwise, the entire expenses for the test shall be refunded by the first respondent. Now, finding that the DNA test proves that he is the father, he cannot resile from his commitment made to this court on 31.7.2008. He also placed reliance on the decision of the Apex Court in **Anil K. Surana and another v. State Bank of Hyderabad** {(2007) 10 SCC 257} wherein the Apex Court considered a similar question as to whether a statement made at the Bar is sufficient to issue directions and whether it amounted to an undertaking on behalf of the party. It was held that directions based on the submission made at the Bar amounted to an executable decree by consent. 6. We have gone through the order passed by the court below in the review application made by the petitioner. We find that the court below has considered all the aspects of the matter. The facts as disclosed could clearly show that ample opportunity was given to the appellant for contesting the matter. Even the dispute regarding the paternity was raised only several Mat.A.624/2007 -8- years after the marriage and much belatedly after the suit was instituted. At one point of time he even admitted the paternity of the child, but it is only thereafter that he sought for an amendment of the written statement which was disallowed by the court. He was set-exparte in the matter. That order was set aside on condition. Then also he did not contest the matter. He did not examine the witnesses examined on the side of the plaintiffs. Thus, the conduct as revealed by the various proceedings would clearly show that the appellant was not interested in complying with the order of the court and paying the maintenance legally due and entitled to by the minor child. Even the submission made to this court that in case the it is proved in the DNA test that he is the father of the minor child, he will set apart 30 cents of land in favour of the minor, was not complied with as on date. We find no error of law in the order impugned in this appeal and we do not find any merit in this appeal either. 7. We find that the court below has already passed an order of attachment over 60 cents of land belonging to the appellant as per I.A.No.1238/1995. That attachment will continue. In case the appellant is not complying with his commitment to set apart 30 cents of land in favour of the minor child within a period of 30 days from today, failing which the respondent is entitled to get the sale deed executed through court and this Mat.A.624/2007 -9- will be an executable order. In case the 30 cents of land is assigned in favour of the minor child either by the appellant or through court, as the case may be, there will not be any further liability on the part of the appellant to pay maintenance to the minor child. The appeal is dismissed. **( P.R.Raman, Judge.)** **(T.R. Ramachandran Nair, Judge.)** **kav/**