Remanded

Kunnummal Saleem v. Nasiya

Kerala HC13 Nov 2019RPFC/1/2017

Case brief

AI extract

What is this about?

The Court remitted a maintenance case to the Family Court for re-evaluation since DNA test results indicating non-paternity were not considered in the final verdict. The order setting aside the maintenance award and detention of the petitioner was also consequentially annulled.

What did the court decide?

Impugned order of Family Court setting maintenance at Rs.4,000/month and civil detention was set aside; matter remanded for fresh consideration.

Kunnummal Saleem Vs Nasiya — Maintenance and Alimony | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

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WEDNESDAY, THE 13TH DAY OF NOVEMBER 2019 / 22ND KARTHIKA, 1941

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RPFC.No.1 OF 2017

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AGAINST THE ORDER/JUDGMENT IN MC 421/2013 DATED 20-08-2016 OF FAMILY COURT, TIRUR

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REVISION PETITIONER/PETITIONER:

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KUNNUMMAL SALEEM

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AGED 35 YEARS, S/O.KUTTY HASSAN, KUNNUMMAL HOUSE, CHUZHALI, MOONNIYUR P.O., MALAPPURAM DISTRICT.

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BY ADVS.

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SRI.K.P.SUDHEER SRI.ARUN MATHEW VADAKKAN

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RESPONDENT/PETITIONER:

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NASIYA

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AGED 31 YEARS, D/O.KOTTEKADAN AHAMED, KOTTEKADAN HOUSE, PANTHARANGADI P.O., THRIKULAM AMSOM DESOM, TIRURANGADI TALUK, MALAPPURAM DISTRICT, PIN-676306.

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R1 BY ADV. SRI.P.M.RAFIQ R1 BY ADV. SRI.O.V.MANIPRASAD

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THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 13.11.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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RPFC.No.1 OF 2017

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ALEXANDER THOMAS, J.

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R.P.(F.C.) No.1 of 2017

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Dated this the 13^th day of November, 2019

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O R D E R

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The aforecaptioned R.P.(F.C.) No.1 /2017 is directed as against the impugned final order dated 20.08.2016 rendered by the Family Court, Tirur in M.C.No.421/2013 filed by the 1^st respondent herein, whereby the revision petitioner herein (respondent therein/husband) has been directed to pay maintenance at the rate of Rs.4,000/- per month to the respondent herein (petitioner therein/wife).

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Heard Sri.K.P.Sudheer, learned counsel appearing for the revision petitioner (husband) and Sri.O.V.Maniprasad, learned counsel appearing for the respondent (wife). One of the main contentions raised by the revision petitioner to oppose the plea for maintenance is that the respondent/wife is not entitled for the maintenance as she was having illicit affair with another man and that she got pregnant in the process and she has delivered twins, a boy and a girl and that the petitioner is not the father of the children and that the said children has been born in her sexual relationship with her paramour etc. Further, the petitioner has got a case that he has pronounced the valid 'Talaq' on 05.09.2012. The defence of the

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RPFC.No.1 OF 2017

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respondent herein was to the effect that it was the uncle of the petitioner herein had impregnated her by committing rape on her in her matrimonial home and that a sessions case is pending in respect of the said rape offence in which the petitioner's uncle, one K.C.Faizal has been arrayed as the accused.

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Further, she would contend that her pregnancy had happened at her matrimonial home where the mother of the petitioner herein has also been residing with her. The mother of the petitioner herein has given evidence as RW2, wherein she has noticed the pregnancy during 8 month and when she enquired with the respondent herein, she has stated names of several persons for causing pregnancy, whereas the respondent herein projected a case that it is only in order to save the abovesaid K.C.Faizal, who is the brother of the mother of the petitioner herein that there was compulsion from the part of her mother-in-law to state the names of other persons. It appears that the abovesaid K.C.Faizal has filed a civil suit as O.S.No.367/2013 before the Munsiff Court, Parappanangadi seeking for a declaration that in fact he is not the biological father of the abovesaid children born to the respondent herein. The Family Court has ordered that the petitioner herein is liable to pay maintenance at the rate of Rs.4,000/per month to the respondent herein. The abovesaid final order of the Family Court has been rendered on 20.08.2016. It appears that the abovesaid civil suit filed by Sri.K.C.Faizal was then pending before the

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RPFC.No.1 OF 2017

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Munsiff Court, Parappanangadi and based on the orders passed by the said civil court, the DNA testing was done by the Rajiv Gandhi Centre for Biotechnology, Thiruvananthapuram to ascertain as to whether the abovesaid K.C.Faizal is the biological father of the abovesaid twin children born to the respondent herein. Now, it appears that the said scientific institution, Rajiv Gandhi Centre for Biotechnology has issued Annexure-A1 expert report dated 07.11.2016, wherein it has been opined that the DNA test preformed on the exhibit referred to therein is sufficient to conclude that the abovesaid K.C.Faizal is not the biological father of the abovesaid children born to the respondent herein whereas the respondent herein is the mother of the said children.

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Further, it appears that since the petitioner has not complied with the direction in the impugned order passed by the Family Court in the matter of the payment of the maintenance, the Family Court has ordered as per Annexure-A2 order dated 02.06.2019 that the petitioner is sentenced to suffer civil detention for a period of 48 months in the civil prison, Kannur.

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After hearing both sides and after careful evaluation of the facts and circumstances of this case, this Court is of the considered view that since the DNA test process was then pending, the steps ought to have been taken to ascertain the outcome of the DNA test process by the expert agency. It is not known whether the parties had apprised the Family Court

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RPFC.No.1 OF 2017

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about the directions issued by the Munsiff Court, Parappanangadi in O.S.No.367/2013 that the DNA profile testing process has already then been undertaken by the expert scientific agency. If that be so, it was only to the effect of things that the Family Court should have been apprised the above outcome of the DNA testing process, so that the said factual aspects could also have been duly taken note of by the Family Court before rendering its final verdict.

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Sri.O.V.Maniprasad, learned counsel appearing for the respondent would point out that it is now well settled that the wife would become disentitled for maintenance only if she is 'living in adultery' and solitary instance of adulterous relationship will not bar her plea for maintenance. This Court is not now entering into that arena of disputes and all that this Court could now hold is that the aspects born out from Annexure-A1, DNA test result issued by the Rajiv Gandhi Centre for Biotechnology was certainly a relevant factual input, which should have been duly taken note of by the Family Court before it had rendered its final verdict in the case. Therefore, this Court is of the considered view that the matter requires a remit as the case is to be seriously reconsidered by the Family Court, after taking into account of all aspects including the aspect based on Annexure-A1, DNA test result. To effectuate such a remit, the impugned final order dated 20.08.2016 rendered by the Family Court, Tirur in M.C. No.421/2013 will stand stand set aside and consequently the

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RPFC.No.1 OF 2017

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main matter in M.C.No.421/2013 will stand remitted to the Family Court, Tirur for consideration afresh. Since the impugned final order has been set aside and the main matter has been remitted, it goes without saying that all the consequential orders passed by the Family Court, including those orders on the execution side pursuant to the impugned final order dated 20.08.2016 will also stand consequently set aside and rescinded. For the sake of clarity, it is ordered that the impugned Annexure-A2 order dated 20.08.2016 rendered by the Family Court, Tirur will also stand set aside and rescinded. As the petitioner is now in civil detention, it is ordered that the petitioner shall be forthwith released from civil detention.

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The parties will appear through the learned Advocates before the Family Court, Tirur in relation to the matter in M.C. no. 421/2013 at 11.00 a.m. on 30.11.2019 and thereafter, the Family Court will take necessary steps for consideration of the matter afresh. Both sides will be at liberty to adduce any additional evidence, if so required. On the request of the petitioner, it is ordered that the Registry will return back the certified copy of Annexure-I, test report issued by the Rajiv Gandhi Centre for Biotechnology to the petitioner's counsel, if a request in that regard is made. However, the Registry will ensure that a photocopy of the said document is placed in the original case file for the purpose of maintenance of record. The counsel for the petitioner would submit that steps will be taken to bring on record the abovesaid test results issued by the Rajiv

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RPFC.No.1 OF 2017

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Gandhi Centre for Biotechnology. Needless to say, in case the respondent herein contests the said document, then it is for the petitioner to take necessary steps to lead evidence for marking of the said document, by summoning the competent witness in the said expert scientific agency and in which case, it goes without saying that the respondent herein will also be at liberty to cross examine any such expert witness.

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The Family Court will endeavour to ensure that the main matter in M.C.No. 421/2013 is disposed of without much delay, preferably within a period of 3-4 weeks from the date of production of a certified copy of this order. Needless to say, both sides should be afforded reasonable opportunity in the matter before the final disposal of the abovesaid M.C. afresh. Registry will forward a copy of this order to the Family Court, Tirur who is dealing with M.C.No.421/2013 for necessary information.

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With these observations and directions, the above R.P.(F.C.) will stand disposed of.

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sd/- ALEXANDER THOMAS, JUDGE

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SKS

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RPFC.No.1 OF 2017

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The words “3-4 weeks' appearing in the Paragraph 8 at page 7 of the final order dated 13.11.2019 in R.P.(F.C.) No.1 of 2017 is corrected and substituted by the words, '3-4 months' as per order dated 21.11.2019 in Crl.M.A.No.3/2019 in R.P.(F.C.) No.1 of 2017.

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sd/-

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Deputy Registrar

Kunnummal Saleem v. Nasiya

Case brief

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Kunnummal Saleem v. Nasiya

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