## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT:**
## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN**
**TUESDAY, THE 7TH DAY OF JANUARY 2014/17TH POUSHA, 1935**
**RPFC.No. 37 of 2010 ( )**
**-----------------------AGAINST THE JUDGMENT IN MC 184/2008 of FAMILY COURT,KOZHIKODE DATED 12-10-2009 ----REVISION PETITIONER/RESPONDENT:**
**------------------------------**
**RAJESH FRANCIS, AGED 32 YEARS, S/O.FRANCIS, KURICHIANIYIL HOUSE, MARUTHONKARA P.O., KAVILUMPARA VIA, KOZHIKODE.**
**BY ADVS.SRI.S.SREEKUMAR**
**SRI.P.MARTIN JOSE SRI.M.A.MOHAMMED SIRAJ SRI.P.PRIJITH**
**RESPONDENTS/PETITIONERS:**
**1. PREETHI ROSLIN, AGED 25 YEARS, D/O.JOY K.C.@ THOMAS, KIZHAKKEMURIYIL HOUSE, MYSOREMALA P.O., MUKKAM, KOZHIKODE.**
**2. DIYA, MINOR 4 YEARS,D/O.RAJESH FRANCIS, REP.BY GUARDIAN 1ST PETITIONER PREETHI ROSELIN.**
**THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 07-01-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
**BP**
## **K. RAMAKRISHNAN, J.**
.......................................................... R.P.(FC)NO.37 OF 2010 .......................................................... Dated this the 7[th] day of January, 2014.
## **O R D E R**
The respondent in M.C.No.184/2008 on the file of the Family Court, Kozhikode, is the revision petitioner herein. The above application for maintenance was filed by the first respondent herein along with the second respondent claiming future maintenance from the revision petitioner under Section 125 of the Code of Criminal Procedure. The case of the first respondent was that the marriage between the first respondent and the revision petitioner was solemnized on 17.5.2003 as per the custom of Christian Religion at St. Mary's Ferone Church, Maruthonkara, and thereafter they lived together as husband and wife. Immediately after the marriage, the first respondent became pregnant and she delivered the second respondent on 16.1.2004 at St. Joseph's Hospital, Mukkam. It was a premature delivery. After the delivery of the second respondent, the relationship between the revision petitioner and his family members with the respondents strained and the 1[st] respondent had to leave the house with the child and
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thereafter no maintenance was paid. In the meantime, the revision petitioner filed O.P.No.32/2004 before the Family Court, Kozhikode, for a declaration that the marriage between the revision petitioner and the first respondent is null and void as it was conducted suppressing the fact of pregnancy of the first respondent, for which the revision petitioner was not responsible. The child was subjected to DNA test in the Family Court proceedings and in the DNA test, it was found that the revision petitioner is not the biological father of the child. The first respondent filed another application for conducting the DNA test again and that petition was allowed by the Family Court and the revision petitioner challenged the same before this Court and this Court directed the DNA test to be conducted from Hyderabad and a report was obtained, in which also, it was found that the revision petitioner is not the biological father of the second respondent. In spite of the reports, the Family Court dismissed the application for dissolution of marriage on the ground of nullity filed by the revision petitioner. So the revision petitioner is liable to pay maintenance at the rate of Rs.5,000/- to the first respondent and Rs.4,000/- to the second respondent and she prayed for
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allowing that claim. She also filed O.P.No.496/2008 claiming past maintenance for the respondents from the revision petitioner. She also filed O.P.No.46/2009 claiming damages. O.P.No.47/2007 was filed for realization of gold ornaments, money and other articles.
2. The revision petitioner appeared in all these cases and he has filed a counter statement stating that the marriage is not valid as it is conducted suppressing the material fact of pregnancy and the second respondent herein is not his child. All these cases were jointly tried by the Family Court and by a common judgment, allowed O.P.No.496/2008 granting a decree for past maintenance to the tune of Rs.1,08,000/- and allowed M.C.No.184/2008 directing the revision petitioner to pay Rs.2,000/- to the first petitioner and Rs.1,000/- to the second petitioner as maintenance from the date of petition and the other two cases were dismissed. Aggrieved by the order passed in M.C.No.184/2008, the present revision petition has been filed by the revision petitioner.
3. In spite of service of notice on the respondents, they remained absent.
4. When the application came up for hearing before this
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Court today, the counsel for the revision petitioner submitted that the revision petitioner filed Mat.A.No.75/2008 against the dismissal of O.P.No.32/2004 and Mat.A.No.31/2010 against the decree in O.P.No.496/2008 and this Court by judgment dated 12.3.2012 allowed both the appeals declaring the marriage between the first respondent and the revision petitioner as null and void and also declared that the second respondent is not the daughter of the revision petitioner and that the respondents are not entitled to get a decree for past maintenance and allowed O.P.No.32/2004 declaring the marriage null and void and dismissed O.P.No.496/2008 filed by the respondents for past maintenance. Though the first respondent questioned the order of this Court in Mat.A.No.75/2008 before the Hon'ble Supreme Court by filing special leave petition, C.C.No.23396/2012 along with a delay condonation application, the Supreme Court condoned the delay and dismissed the special leave petition. The learned counsel for the revision petitioner had produced the order of the Supreme Court for perusal of this Court.
4. The Family Court allowed maintenance to the respondents on the ground that the application for declaration
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of the marriage as null and void as O.P.No.32/2004 filed by the revision petitioner was dismissed and also relying on the presumption under Section 112 of the Evidence Act, coming to the conclusion that the first respondent is the legally wedded wife of the revision petitioner and the second respondent is the daughter of the revision petitioner. But that findings of the Family Court in O.P.No.32/2004 and O.P.No.496/2008 were set aside by this Court in Mat.As.No.75/2008 and 31/2010 which was reported in **Rajesh Francis v. Preethi Roslin** (2012 (2) KLT 613) who are the parties to this revision petition.
5. An application for maintenance will be maintainable by a legally wedded wife and by legitimate or illegitimate child of that couple. But in this case this Court has declared the marriage between the first respondent and the revision petitioner as null and void as per the judgment in Mat.A.No.75/2008. So there is no legal marriage subsisting between the first respondent and the revision petitioner. Her claim for past maintenance was also rejected by this Court as per the judgment in Mat.A.No.31/2010 which was disposed of along with Mat.A.No.75/2008 filed against O.P.No.32/2004 filed by the revision petitioner for declaration of marriage between
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the revision petitioner and the first respondent as null and void. When a competent court has found that there is no legal marriage and the marriage between the first respondent and the revision petitioner was declared as null and void, then this Court as a criminal court, considering the question of maintenance under Section 125 of the Criminal Procedure Code is bound by that order. Since there is no legal marriage and the first respondent is not the legally wedded wife of the revision petitioner, she is not entitled to claim maintenance from him. So, in view of the decision reported in **Rajesh Francis (** cited supra **)** , the application for maintenance filed by the first respondent under Section 125 of the Code of Criminal Procedure is liable to be dismissed as she is not entitled to claim maintenance as the legally wedded wife of the revision petitioner.
As regards the second respondent is concerned, this Court by the decision reported in **Rajesh Francis (** cited supra **)** held that the second respondent is not the legitimate or illegitimate child of the revision petitioner and found that the revision petitioner is not liable to pay past maintenance to the respondents. Then he is not liable to pay future maintenance
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also to the second respondent and as such, the second respondent also is not entitled to claim maintenance from the revision petitioner. In view of the finding of this Court in a proceedings arose on the basis of the family that the second respondent is not his legitimate or illegitimate child, the order passed by the Family Court granting maintenace to the second respondent under Section 125 of the Code of Criminal Procedure is also liable to be set aside and the revision petition has to be allowed. So, the revision is allowed and the order passed by the Family Court in M.C.No.184/2008 is set aside.
## **Sd/K. RAMAKRISHNAN, JUDGE.**
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P.S. to Judge
