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2020 DIGILAW 610 (KER)

Rev. Noble Philip, S/o. Philip v. Nevin Noble (Minor), S/o. Noble Philip

2020-07-17

MARY JOSEPH

body2020
ORDER : The revision petition on hand is directed against the order passed by Family Court, Ernakulam on 27.02.2018 in M.C.No.163 of 2014. The revision petitioner is the respondent in the M.C. He was directed by the impugned order to pay monthly maintenance at the rate of Rs.10,000/- to his son aged about 7 years. He being a minor, was represented by his mother in the case as next friend. The parties to this revision are referred to hereinafter as the respondent and the petitioner in accordance with their status in the M.C. 2. The petitioner's mother married the respondent on 29.08.2005 at St.Gregorious Auditorium, Nannuvacaud, Pathanamthitta. The petitioner was born in the wedlock on 08.08.2006. From 06.11.2006 onwards, the respondent neglected to maintain the petitioner. He was with his mother who being unemployed, found it difficult to maintain him and therefore, has approached the Family Court seeking for maintenance from the respondent. 3. In the counter statement filed by the respondent in the M.C, though the marriage was admitted, paternity of the child was suspected. It was contended that the marital relationship got strained due to the strange character of the petitioner's mother. However, he has expressed his readiness to maintain the child. But his contention was that the maintenance if ordered by the court will not be utilised by the mother for the welfare of the child. Accordingly he seeks for dismissal of the M.C. 4. The petitioner's mother was examined before the Family Court as PW1 and Ext.P1 was marked. On the side of the respondent, himself tendered oral evidence as RW1 and Exts.D1 to D4 were marked. On appreciation of the evidence, the Family Court found the petitioner entitled to get maintenance and accordingly, awarded Rs.10,000/-per month and directed the respondent to pay it from the date of the petition. 5. Sri.T.M.Raman Kartha, the learned counsel for the respondent has contended at the outset that the monthly maintenance fixed by the Family Court to a child of 7 years is exorbitant and without any basis. According to him, a certificate issued from the Diocese of Travancore and Cochin Anglican Church was produced by the respondent and got marked in evidence as Ext.D1 to establish his monthly income as Rs.12,000/-. According to him, the marking of the document was not opposed by the petitioner and therefore the court has received the same in evidence. According to him, a certificate issued from the Diocese of Travancore and Cochin Anglican Church was produced by the respondent and got marked in evidence as Ext.D1 to establish his monthly income as Rs.12,000/-. According to him, the marking of the document was not opposed by the petitioner and therefore the court has received the same in evidence. According to him, the Family Court was reluctant to rely on it for the reason that it was issued by the Secretary of the Diocese who is a person working under the respondent. According to him, if any opposition was raised, the marking would have been subject to further proof and then he could have adduced further evidence to prove Ext.D1. Therefore, it is urged by him that opportunity to adduce further evidence to establish the authenticity of the document was denied to him resulting in injustice and prejudice and interference is called for. 6. It has come out in evidence and also conceded by the petitioner that the respondent has his aged mother and a sister who is mentally retarded to be maintained with the income earned by him. The respondent as RW1 has also spoken about his ailments. It was further contended that the respondent avoided the company of PW1 for her strange character and therefore is not liable to maintain her. The impugned order was sought to be set aside for the foregoing reasons. 7. The petitioner (respondent in the revision) was served with notice from this Court in the revision. It is found from the materials that despite service of notice on him, he has not cared to appear personally or through a counsel. 8. Eventhough a doubt was raised on the paternity of the child in the counter statement filed by the respondent, while being examined as RW1, he expressed his affinity to the child and preparedness to maintain him. It has also come out in evidence that even without any order or direction from a Court of Law money was paid to the child for his sustenance. It was also brought to notice that at the time of counseling also the respondent was agreeable to pay monthly maintenance at the rate of Rs.2000/- to the minor child and also suggested that. 9. It was also brought to notice that at the time of counseling also the respondent was agreeable to pay monthly maintenance at the rate of Rs.2000/- to the minor child and also suggested that. 9. As rightly pointed out by the learned counsel, it has come out in evidence that the respondent has his aged mother and a sister aged about 38 years and also mentally retarded to be maintained. Ext.D1 was issued by the Secretary of the Anglican Sabha but it was not marked through him. It is the bounden duty of the party who proposes to rely on a document to prove it by examining the signatory thereto and to permit the opposite party to test it's veracity through cross examination. 10. As per Section 64 of the Indian Evidence Act, 1872 documents intended to be relied on by a party must be proved by primary evidence except in the cases specifically mentioned in the Act. The best evidence rule says that a party seeks to put contents of a document must produce the original of the document, unless the opposite party has admitted the contents thereof. Law is well settled that for the reason that a document was marked by a Court of Law in evidence, the parties who has produced it is not discharged from his burden to prove it. Mere filing or exhibiting a document in court does not amount to proving its contents. Admission of documents in court may amount to admission of its contents, but not the veracity of those. Only documents produced and exhibited in the course of evidence alone could be relied on. Documentary evidence must be proved strictly in the manner envisaged by the provisions of the Evidence Act. By mere filing of the documents before the court, one cannot canvass that the contents of those are proved. 11. For failure of the opposite party to raise his objection against a document while it is being taken for marking as an exhibit, he will be estopped and precluded from challenging its admissibility in evidence at a later stage. Therefore, it is trite that unless and until the author of the document is examined, it becomes inadmissible in evidence and it's contents cannot be said to have been proved. Not only that the author must be examined by the party but also be subjected to cross examination. Therefore, it is trite that unless and until the author of the document is examined, it becomes inadmissible in evidence and it's contents cannot be said to have been proved. Not only that the author must be examined by the party but also be subjected to cross examination. The document which is otherwise inadmissible cannot be taken in evidence only because it's admissibility is not objected to. 12. In the case on hand, Ext.D1 was received in evidence without any objection being recorded as taken by the opposite party. Receiving of a document in evidence by exhibiting it does not confer on it the status of an admissible or reliable document. The authenticity of the document must be established by examining its author and by permitting the opponent to confront him on particulars qualifying its genuineness. A scrutiny of the evidence of PW1 would disclose that disputing the authenticity of Ext.D1, several questions were put to RW1 by the petitioner. But, the document was not marked subject to proof. Even then, the court receiving the document must be vigilant to see the genuineness of the document and its relevance. 13. The Family Court has found Ext.D1 as an unreliable document for the reason that it was not proved by examining its author and permitting the petitioner to controvert on its veracity. Once materials relevant to prove a factum pleaded by a party are very much in his custody or he has easy access to procure those and if he fails to produce those in proof of it, adverse inference is liable to be drawn against his claim. In the case on hand, being a Bishop of Anglican church, it is probable for the respondent to earn a monthly income more than Rs.12,000/-. 14. The Family Court by adverting to the status and position of the respondent has found that he will be getting Rs.50,000/-as monthly salary as claimed by the petitioner. There is absolutely no basis for arriving at such a finding and the Family Court undoubtedly has erred in doing so. 15. It is established from Exts.D2 to D4 that the respondent's mother is an old lady having ailments and his sister is mentally retarded. The respondent is also stated to be ill. Being the father the respondent cannot evade from his responsibility to maintain his minor son, who is in the petitioner's custody. 15. It is established from Exts.D2 to D4 that the respondent's mother is an old lady having ailments and his sister is mentally retarded. The respondent is also stated to be ill. Being the father the respondent cannot evade from his responsibility to maintain his minor son, who is in the petitioner's custody. The claim of the respondent that he has his aged mother and mentally retarded sister to be looked after will not stand in the way of his obligation to maintain a child born to him. Though the paternity of the minor child was doubted initially in the counter statement, while being examined as RW1, the respondent has expressed that he loves the minor one and desires to maintain him. The only dispute was with regard to the quantum payable as maintenance. 16. In a context where evidence is totally lacking to establish the monthly salary of the respondent and when it is established that the respondent has his ailed and aged mother and the mentally retarded sister to be taken care of, grant of Rs.10,000/-as monthly maintenance appears to this Court, exorbitant. Therefore, interference of the impugned order is called for to reduce the sum to Rs.8,000/-. In the result, R.P (F.C) stands allowed in part. The maintenance ordered by the impugned order is reduced to Rs.8,000/-monthly. The monthly maintenance now stands modified shall be paid by the respondent to the petitioner without default. The arrears of maintenance shall also be paid without further delay.