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2018 DIGILAW 1028 (KER)

Ali Pattakkal v. Shahitha Beevi Jasmina

2018-12-10

A.M.BABU, A.M.SHAFFIQUE

body2018
JUDGMENT : SHAFFIQUE, J. This appeal is filed by the defendant in O.S.No. 24/2005 of the Family Court Nedumangad. The suit was originally filed as O.S.No.122/1999 before the Family Court, Thiruvananthapuram and later transferred to the Family Court Nedumangad. The suit was filed by the respondents herein seeking past maintenance for the plaintiffs. 2. The plaintiffs inter alia alleged that the 1st plaintiff married the defendant as per Muslim law on 14.04.1996. A male child was born in the wedlock on 6.7.1997 who is arrayed as the 2nd plaintiff. According to the plaintiffs the defendant left them on 6.10.97 and thereafter neglected to maintain them. She claimed Rs.2,000/- per month for the 1st plaintiff and Rs.1,000/- per month for the 2nd plaintiff. She also claimed future maintenance at the same rate as well. Defendant denied having any relationship with the plaintiffs. He is an employee of the Vikram Sarabhai Space Centre. He purchased 15 cents of property in the year 1993 and started constructing a house. 1st plaintiff's father offered to assist the defendant in construction especially in timber and carpentry work. When the construction was completed he demanded Rs.25,000/- as supervision charges and made a proposal to marry his daughter/1st plaintiff. The defendant refused the same. However, he decided that the demand made by 1st plaintiff's father could be settled after selling the property. But the property could not be sold due to the attachment at the instance of the plaintiffs. In the mean time another person approached the ISRO staff association and filed a complaint alleging that the defendant had contracted a second marriage during the subsistence of an earlier marriage. The 1st plaintiff also lodged a complaint before the defendant's department and also before the Women's Commission. He further contended that using the key entrusted to the 1st plaintiff's father he opened the house and the plaintiffs reside there. Though the defendant filed a complaint before the police no action has been taken. He denied having entered into contract of marriage and refused the obligation to pay maintenance. 3. Before the Family Court, the evidence consists of the oral testimony of PW1 to PW9 and CPW1. The plaintiffs relied on Exts.A1 to A16 and the defendant relied on Exts.B1 to B13. He denied having entered into contract of marriage and refused the obligation to pay maintenance. 3. Before the Family Court, the evidence consists of the oral testimony of PW1 to PW9 and CPW1. The plaintiffs relied on Exts.A1 to A16 and the defendant relied on Exts.B1 to B13. The Family Court after considering the contentions urged by the parties found that there was a valid marriage between 1st plaintiff and the defendant and therefore he is bound to maintain the plaintiffs and the suit was decreed allowing maintenance at the rate of Rs.500/- each per month from the defendant and the assets and charged on the plaint schedule property from the date of suit. 4. When the above matter came up for hearing, since the appellant expressed his inability to engage a counsel we had requested Adv. Dheerendrakrishnan to appear on behalf of the appellant. The learned counsel after a detailed study of the matter had contended before us that the there is no evidence to prove a legal valid marriage between the defendant and the 1st plaintiff and that 2nd plaintiff is not born to the defendant. 5. There is no dispute about the fact that when a marriage is disputed it is for the person claiming a valid marriage to prove the same. PW1 of course had spoken about the marriage as stated in the plaint. PW4 is the father and PW7 is the brother who supported her version. That apart, PW2 a Secretary of Karakulam Muslim Jama Ath and PW9 another Secretary had produced records certifying that there is a contract of marriage between the defendant and 1st plaintiff. PW3 is a relative of the plaintiffs, who deposed that he had witnessed the marriage. PW5 is the relative of PW1 who had taken photographs of the marriage ceremony. The photographs had been produced as Exts.A7, A12 and A13. PW6 is also a person who attended the marriage function between the 1st plaintiff and the defendant. That apart, evidence of PW8 Secretary of Karakualm Service Co-operate Bank stated that the defendant stood as a surety for a loan transaction availed by PW4 on 12.10.1996. Ext.A14 is the certificate to prove the said fact and Ext.A16 is the identity card issued to the defendant by the Karakualm Service Co- Operative Bank on 25.9.1994. That apart, evidence of PW8 Secretary of Karakualm Service Co-operate Bank stated that the defendant stood as a surety for a loan transaction availed by PW4 on 12.10.1996. Ext.A14 is the certificate to prove the said fact and Ext.A16 is the identity card issued to the defendant by the Karakualm Service Co- Operative Bank on 25.9.1994. From the evidence of these witnesses and the corresponding documents produced, especially the photographs it is rather clear that there was a Nikah ceremony by which the defendant had contracted a marriage. 6. It is trite that for conducting a Muslim marriage a certificate from the Jama Ath is not necessary. Muslim marriage is a contract and the marriage ceremony known as 'Nikah' is an offer and acceptance in the presence of witnesses. Normally the contract is between the bridegroom and the bride's father, where 'Mahr' is also paid as consideration. When the photographs produced in the case and the oral testimony of witnesses who attended the marriage is considered, even without believing the documents from the Jama Ath, there is sufficient evidence to prove the marriage. 7. Once the marriage is proved, paternity of the child can be presumed if the wife gives birth to a child during the continuance of a valid marriage. In so far as the respondent does not have a case that he had subsequently divorced the 1st plaintiff, the paternity cannot be disputed on account of the presumption under Section 112 of the Evidence Act. Yet another aspect which has been taken note of by the Family Court is regarding the DNA test. The Rajiv Gandhi Centre for Biotechnology had issued Ext.A1 certificate dated 28.12.1999. The report indicates that alleged father appears to be the legal biological father with more than 99% probability. Of course, the appellant has a case that he had not given his blood sample. Even otherwise, when a presumption can be raised in terms of Section 112 of the Evidence Act, his obligation to maintain a minor cannot be disputed. In the result we don't find any error being committed by the Family Court in arriving at the above conclusion, and no interference is called for. Mat. Appeal is dismissed. No costs.