HIGH COURT OF KERALA
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(1.) THIS is a petition to revise the order of the Sub - Divisional Magistrate,Malappuram in M.C.83/65,by which the learned Magistrate directed the petitioner to pay a monthly maintenance of Rs.10 to the respondent in this case,who is a minor and whom the learned Magistrate found to be the child of the petitioner.
(2.) THE facts in this case are to a large extent not in dispute;and the controversy relates only to the parenthood of the child.The petitioner and the respondent's mother belong to the Muslim community;and they also reside in the same locality.The respondent's mother was married to the petitioner on 10th December 1957;and this marriage was conducted in the house of a Musaliar of the place.The child was born to her on 5th May 1958.The mother who was examined as P.W.1,has admitted that she was pregnant for four months at the time of the marriage.She has also admitted that,before this marriage she had married another Muslim;but she said that she had not lived with him,and that marriage was absolved about one year before she got married to the petitioner.The fact that the first marriage was got dissolved was spoken to by her in her re -examination.There is no other evidence on this matter.The petitioner,as C.P.W.1 stated that,before his marriage with P.W.1,he had married another woman and he divorced her very shortly after that marriage.The petitioner further gave evidence that,for about 4 years before his marriage with P.W.1,he was residing in Bangalore,being employed in a tea -shop,that this marriage was settled through his parents,and that he came down for the marriage only a few days before the date of the marriage.This evidence is corroborated by the evidence of C.P.W.2.P.W.1 was asked about this;and she stated that she did not know whether the petitioner was employed in Bangalore;but she added that he had gone out for work only after the marriage.
(3.) ACCORDING to P.W.1,the marriage was conducted in the house of the Musaliar and not in the mosque,because she was pregnant.According to the petitioner and his witness,it was done at the Musaliar's house,because the Musaliar was ill.This controversy is not of much relevancy.The case of P.W.1 is that after the marriage she was taken to the house of the petitioner,with whom she lived for some time,that she went to her own house later for delivery,and that after the delivery the petitioner refused to accept her and the child and she was divorced within one month of the birth of the child.According to the petitioner,before P.W.1 was taken to his house after the marriage a scandal spread that P.W.1 was pregnant.He enquired about the matter and he was satisfied that she was really pregnant,with the result that he never took her to his house,and within 15 days of the marriage,he divorced P.W.1.
As indicated above,the only question for determination is whether the respondent is the child of the petitioner.I have heard counsel at great length and also perused the records of this case.I find that the order of the learned Magistrate is vitiated as his findings are based on a misreading of the evidence,as I shall indicate later,and also by a failure to consider the actual points arising for determination in the case.;
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