Ashly A. (Minor) v. Antony Padamadan

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **MONDAY, THE 2ND DAY OF JULY 2018 / 11TH ASHADHA, 1940 OP(Crl.).No. 209 of 2015** **(AGAINST THE ORDER IN MP NO.300/2014 IN MC NO.14/2014 OF THE FAMILY COURT KOTTAYAM AT ETTUMANOOR)** ## **PETITIONER(S)/PETITIONER** **ASHLY.A (MINOR) D/O.ANTONY PADAMADAN, KUTTAMPEROOR HOUSE, NEAR S.B.HIGH SCHOOL, CHANGANASSERY P.O., KOTTAYAM DISTRICT, REPRESENTED BY HER MOTHER AND NEXT FRIEND, SUSANNAMMA @ LALY.** **BY ADVS.SRI.A.JAYASANKAR SRI.C.V.MANUVILSAN SRI.MANU GOVIND SRI.ASHWIN SETHUMADHAVAN** ## **RESPONDENT(S)/RESPONDENT:** **ANTONY PADAMADAN PADAMATTUMEL HOUSE NEAR RAILWAY STATION, CHALAKKUDY, THRISSUR DISTRICT-680307.** **R1 BY ADV. SRI.C.S.MANU** **THIS OP (CRIMINAL) HAVING BEEN FINALLY HEARD ON 06-06-2018, THE COURT ON 2/7/2018 DELIVERED THE FOLLOWING:** **OP(Crl.).No. 209 of 2015 (Q)** **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **EXT.P1 : TRUE COPY OF THE CERTIFIED EXTRACT FROM THE REGISTER OF BAPTISM.** **EXT.P2 : TRUE COPY OF THE TAKEN AT THE TIME OF THE HOLY COMMUNION OF THE PETITIONER.** **EXT.P3 : TRUE COPY OF THE PETITION DT.3-1-2014 FILED BEFORE THE FAMILY COURT, KOTTAYAM INVOKING SEC.125 OF THE CODE OF CRIMINAL PROCEDURE.** **EXT.P4 : TRUE COPY OF THE OBJECTION (DT.NIL) FILED BEFORE THE FAMILY COURT,KOTTAYAM BY THE RESPONDENT.** **EXT.P5 : TRUE COPY OF THE APPLICATION FOR CONDUCTING DNA TEST WITH AFFIDAVIT THEREOF DT.22-7-2014.** **EXT.P6 : TRUE COPY OF THE OBJECTION DT.1-11-2014 FILED BEFORE THE FAMILY COURT, KOTTAYAM BY THE RESPONDENT.** **EXT.P7 : TRUE COPY OF THE PETITION DT.25-8-2014 FILED BY THE RESPONDENT BEFORE THE FAMILY COURT, KOTTAYAM.** **EXT.P8 : TRUE COPY OF THE OBJECTION DT.26-8-2014 FILED BEFORE THE FAMILY COURT, KOTTAYAM BY THE PETITIONER.** **EXT.P9 : TRUE COPY OF THE ORDER DT.31-3-2015 BY THE FAMILY COURT, KOTTAYAM.** **RESPONDENTS EXHIBITS: NIL** **/TRUE COPY/ PS TO JUDGE.** ## **SUNIL THOMAS, J.** - - - - - - - - - - - - - - - - - - ## **O.P.(Crl.).No. 209 of 2015** - - - - - - - - - - - - - - - - - - Dated this the 2[nd] day of July, 2018 ## **JUDGMENT** The petitioner herein is a minor represented by the mother, who, aggrieved by the dismissal of MP No.300/2014 in MC No.14/2014 of the Family Court, Ettumanoor, which is an application for conducting DNA test of herself and the respondent, has approached this Court. 2. According to the petitioner herein, her mother had contracted marriage with a person by name Asif, by a registered document in the year 1992. They lived together till early 1997. During the above period, the mother got acquainted with the respondent who was a priest attached to a church. The mother had close relationship with the respondent herein and he offered to marry her. They had physical relationship in the course of their close relationship, it is alleged. The petitioner herein was born on 11/12/1997. Matrimonial disputes arose between the mother and Asif, which led to some legal proceedings. They got separated and are living separately. Contending that the petitioner herein was born in the physical relationship of her mother with the respondent the petitioner approached the court below seeking O.P.(Crl.) No. 209/2015 2 maintenance at the rate of Rs.10,000/- per month from the respondent. It was asserted that, basic records like birth certificate, baptism certificate, etc showed Asif, as the father of the petitioner herein. According to the petitioner herein, it was so entered at the instance of the respondent herein. It was also asserted that, the mother and the child were maintained by the respondent herein and wherever the respondent got transferred to as a priest, he took the petitioner also with him and made the petitioner and her mother reside in the house taken on rent by the respondent. He continued to maintain her till 2011 and thereafter, refused to maintain her. Hence, Crl.M.C.was filed. 3. After the appearance of the respondent through counsel and of the filing of objection disputing the paternity of the petitioner as alleged, the petitioner filed Ext.P5 application seeking direction to the respondent to undergo DNA test to prove that the respondent was the biological father of the petitioner. Ext.P6 is the objection filed by the respondent herein denying the allegations . 4. The respondent contended that, the petitioner herein had moved an experimental application to attribute paternity of the child on the respondent. The child was born during the subsistence of matrimonial relationship of Asif with the mother of the petitioner. It was stated that she had even filed a complaint under section 498A O.P.(Crl.) No. 209/2015 3 alleging matrimonial cruelty against Asif. She had alleged that, during their matrimonial relationship, she was subjected to matrimonial cruelty by Asif. The respondent asserted that the present petition was filed to blackmail him and to extract money from him. He had no relationship with the petitioner herein, she contented. 5. By Ext.P9 order, the court below dismissed the application essentially on the ground that the petitioner did not prima facie establish the existence of materials to justify a DNA test. It was held by the trial court that summoning a person to the court, especially a priest, on the allegation of paternity of the child of a woman who was not married to him and direct him to undergo DNA test, definitely will cast social stigma on him. This finding is assailed in this petition. 6. The specific contention of the petitioner herein is that, the respondent herein is the biological father of the petitioner. Along with the application, an affidavit affirmed by the mother was also filed. It is an admitted case that in all the records, name of Asif was mentioned as the father of the petitioner. According to the petitioner, it was done at the instance of the respondent herein and to conceal relationship of the respondent with the mother. 7. To support the case of the petitioner, three photographs O.P.(Crl.) No. 209/2015 4 were let in, which showed the child with the respondent herein on three different occasions. One was at the time of her first communion. The second was on her birthday and the third one was on a different occasion. The first photograph was explained by the court below by holding that, it was the photograph taken at the time of first communion with the concerned priest, which was a common practice. However, the other two photographs showed the respondent in a casual wear. In both the cases he seems to be closely interacting with the child. In one of the photograph he is seen wearing a lungi and shirt. Both the photographs indicate his close acquaintance with the child, otherwise than as a priest. Of course, these photographs have not been denied. However, the court has explained it by holding that without producing the negative and ruling out the possibility of interpolation of the photographs, it cannot be given much credibility. I cannot agree with that reasoning, since photographs were produced to prima facie prove the acquaintance with the respondent and to support the claim for a DNA test. 8. Learned counsel for the petitioner relied on the decision reported in **Goutam Kundu v. State of W.B.and Another (1993 (3) SCC 418),** wherein the Hon'ble Supreme Court, after evaluation of certain materials concluded that, the court in India cannot order O.P.(Crl.) No. 209/2015 5 blood test as a matter of course. Wherever applications are made for such prayers, in order to have roving inquiry, the prayer for blood test cannot be entertained. In **Bhabani Prasad Jena V. Convenor Secretary (2010(8) SCC 633),** it was held that there must be a strong prima facie case in that the husband must establish non access in order to dispel the presumption arising under section 112 of the Evidence Act. The court must carefully examine as to what would be the consequence of ordering the test, whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman. This court in **Pathukala Sakkariya v. Salman Faris ( 2012 KHC 2965)** had declined to order DNA test relying on Goutam Kundu's case ( cited supra) as well as few other decisions. In that the allegation under section 498A and of forceful sexual intercourse raised by the mother were found against and the accused was acquitted. Having regard to these, the court below held that rejection of application for DNA test by the Family Court in MC proceedings was justified. 9. This court in **Babu v. Vidya (2015 KHC 15)** had relied on the decision of the Supreme Court in **Sharda v. Dharmpal (2003 KHC 398)** and considered the question whether the matrimonial court has power to direct a party to undergo medical examination and whether passing of such an order would be in violation of O.P.(Crl.) No. 209/2015 6 Article 21 of the Constitution of India. The Supreme Court had answered both the questions positively. The Division Bench had concluded that any order for DNA test can be given by the court if a strong prima facie case is made out for such a course. 10. It is pertinent to note that, Asif does not appear to be legally wedded to the mother of the petitioner. They seem to have been leading a living in relationship. Consequently, bar under section 112 of the Indian Evidence Act may not apply. It is pertinent to note that the petitioner has not proceeded against Asif claiming maintenance. The petitioner through the mother had given an explanation as to how the name of Asif appeared in the various documents as the father. The respondent has no case that the petitioner is a stranger to him. The three photographs cannot be completely brushed aside. Having considered these facts, I am inclined to hold that the petitioner herein has established a case based on the available materials. Reasoning of the court below that summoning the respondent herein to the court of law and requiring him to undergo DNA test will cast social stigma on him cannot be accepted. The petitioner has a case that the respondent has ceased to be a priest. He was removed from the priesthood for some reasons. Even the respondent herein is summoned in the paternity proceedings with specific allegations. Casting a social O.P.(Crl.) No. 209/2015 7 stigma cannot be a reason for declining permission for DNA test in this case. It gives an opportunity to respondent to dispel all allegation, if truth is on his side. This will also facilitate the appreciation of entire facts involved in the case. Hence, I feel that Ext.P9 order is not legally sustainable and is liable to be set aside. In the result, the impugned order is set aside. Ext.P5 is allowed. Court below shall proceed to conduct DNA test in accordance with law. ## **Sd/-** **SUNIL THOMAS Judge** dpk /true copy/ PS to Judge. O.P.(Crl.) No. 209/2015 8