Jayaprakash s/o Velaydan Pathayappura Veedu v. Nisha and Nivedhya (Minor)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **THURSDAY, THE 21ST DAY OF MARCH 2013/30TH PHALGUNA 1934** ## **RPFC.No. 151 of 2012 ()** **---------------------------------MC.322/2009 of FAMILY COURT, PALAKKAD. ........** ## **REVISION PETITIONER(S)/RESPONDENT:** **-------------------------------------------------------------** **JAYAPRAKASH S/O. VELAYDHAN PATHAYAPPURA VEEDU, PULINELLI, KOTTAY PALAKKAD** **BY ADVS.SRI.P.P.THAJUDEEN SMT.P.B.WAHIDA SRI.MANSOOR.B.H. SMT.C.SEENA** ## **RESPONDENT(S)/PETITIONER:** **----------------------------------------------** ## **1. NISHA, AGED 25 YEARS** **D/O.CHANDRAN, KOOTHUPARAMBIL VEEDU, EDATHARA PALAKKAD-678611.** ## **2. NIVEDHYA, AGED 3 YEARS** **MINOR, REPRESENTED BY HER MOTHER NISHA, D/O. CHANDRAN KOOTHUPARAMBIL VEEDU, EDATHARA, PALAKKAD 678611.** ## **R1& R2 BY ADV. SRI.JACOB SEBASTIAN** **THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 21-03-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **tss** ## **RP(F.C). NO.151/2012** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:-** **AI:- CERTIFIED COPY OF THE JUDGMENT IN MC. 322/2009 OF FAMILY COURT, PALKKAD,DT.D 19.3.2012.** ## **RESPONDENT'S ANNEXURES** ## **NIL** **//TRUE COPY//** **P.S. TO JUDGE** **tss** ## **K.HARILAL, J.** = = = = = = = = ## **R.P.(F.C)No.151 of 2012** = = = = ==== = = = = = = Dated this the 21[st] day of March, 2013 ## **O R D E R** The Revision Petitioner is the respondent in M.C.No.322/09 on the files of family court, Palakkad. The above petition was filed by the respondent herein u/s 125 of the Code of Criminal Procedure claiming maintenance from the Revision Petitioner. The 1[st] respondent is the wife and the 2[nd] respondent is the minor child of the Revision Petitioner. The 1[st] respondent claimed Rs.2,500/- and the 2[nd] respondent claimed Rs.2,000/towards monthly maintenance allowance. The learned family court judge directed the Revision Petitioner to pay Rs.2,500/- to the 1[st] respondent and Rs.1,000/- to the 2[nd] respondent as monthly allowance. This order is under challenge in this Revision Petition. 2. It is stated in the petition that the marriage **R.P.(F.C)No.151 of 2012** 2 between the Revision Petitioner and the 1[st] respondent was solemnized on 24/08/2008. After the marriage the Revision Petitioner was very suspicious about the 1[st] respondent. After one month of marriage when she had symptoms of pregnancy she informed the Revision Petitioner and got her examined by Dr.Geetha at Sarada Nursing Home and one Dr.Omana at Kottayi. While so on 13/01/2009, the 1[st] respondent and the Revision Petitioner went to the house of the 1[st] respondent. On the next day, the Revision Petitioner left her there stating that he would come after two days to take her back. Then he informed that he has to come to the rituals of her brother for Sabarimala pilgrimage on 04/01/2009. But the Revision Petitioner never came back and took the 1[st] respondent or participated in the family function. 3. The Revision Petitioner filed an objection admitting the marriage but paternity of the child is disputed. The occupation and income of the Revision Petitioner alleged by **R.P.(F.C)No.151 of 2012** 3 the 1[st] respondent is also denied. According to him, the 1[st] respondent is working as a tailor and after marriage she is getting Rs.3,000/- per month. He contended that the 1[st] respondent was never subjected to cruelty either physically or mentally as alleged. According to him, on the date of marriage at the mandapam itself, she vomited and the Revision Petitioner only thought that it is only due to the changes of atmosphere but even after she started vomiting at his house. Her family members were informed and her father and brother consulted Dr.Omana. Thereafter, she failed to have sexual intercourse with him and thereafter due to continuous compulsion she consented to have sexual intercourse on 3[rd] day. On the 4[th] day of marriage they went to her house as per custom and it was told that she is having periods and cannot have sexual intercourse and also told to separate the marital relationship. Even before completion of one month of marriage he had doubt that she was pregnant and on 03/10/2008 she was taken to **R.P.(F.C)No.151 of 2012** 4 Dr.Geetha of Sarada Nursing Home and before confirming the pregnancy test was positive, she took token in advance and the date of marriage was entered as 24/06/2008 falsely. When the Revision petitioner enquired about it she informed him that it was written wrongly by the nurse. After arriving home, she asked him what is the guarantee that the child in the womb is that of him. She also informed illicit relationship with her relative Babu and further told that she cannot live with the Revision petitioner and the relationship has to be separated. Thereafter they consulted Dr.Omana and there also she stated the date of marriage as 24/06/2008. Due to the above incident the whole dreams of the Revision petitioner has been fallen down and he was mentally upset and due to that he had heart attack and was treated at Thankam Hospital in ICU. After that the Revision petitioner filed a complaint to the women cell and settled the matter for agreeing to conduct DNA test after delivery and agreed that the paternity can be decided 5 ## **R.P.(F.C)No.151 of 2012** thereafter. The 1[st] respondent and family members came to his house on the next day and took all her ornaments and clothes. Then she filed a complaint u/s 498A IPC. Since the facts was false no case was taken. According to him, it is highly necessary to conduct the DNA test. 4. The 1[st] respondent was examined as PW1 and Exts.P1 to P5 were marked. Revision petitioner was examined as CPW1. Exts.D1 to D4 were marked. 5. Going by the pleadings, it is seen that though the M.C was filed claiming maintenance, the real dispute involved in this case is the paternity of the 2[nd] respondent. According to the Revision petitioner, the 2[nd] respondent is not a child of him but the 1[st] respondent denied all allegations suspecting pre-marital pregnancy raised against her. According to her, the Revision petitioner had begotten the 2[nd] respondent. 6. It is seen that the issue of paternity began from the very beginning of their marital life. Admittedly, they lived **R.P.(F.C)No.151 of 2012** 6 together from 24/08/2008 to 04/01/2009 only. The Revision petitioner believed that the 2[nd] respondent is not his child. According to him, the 1[st] respondent has shown symptom of pregnancy by vomiting at the marriage mandapam itself. When she was taken to Doctor, she took token in advance, and date of marriage was falsely entered as 24/06/2008. When they consulted another Doctor Omana, she again willfully stated date of marriage as 24/06/2008. She failed to have sexual intercourse with him and due to continuous compulsion she consented to have sexual intercourse on 3[rd] day only. When the 1[st] respondent herself informed him her illicit relationship with Babu, his all dreams have fallen down; he was mentally upset; he had heart attack due to his mental strain and stress and hospitalized in ICU. 7. Per contra, according to the 1[st] respondent, the Revision petitioner was suspicious from the very beginning of the marriage. He looked at each and every act of the 1[st] respondent with suspicion. On 05/06/2009, ie, on the 2[nd] 7 ## **R.P.(F.C)No.151 of 2012** day of the birth of the 2[nd] respondent, he had issued lawyer notice to her and in that notice he raised various allegation suspecting paternity of the 2[nd] respondent. The said behaviour of the Revision petitioner itself is sufficient to show the extent of cruelty with which the 1[st] respondent was subjected to at the hands of the Revision petitioner. 8. Going by the judgment under challenge, I find that it cannot be held that the allegation suspecting paternity was raised with an ulterior motive or malafide intention to elude from the liability to pay maintenance allowance. That suspicion began from the beginning of the marriage and got deep rooted in his mind on the basis of some other incidents allegedly happened. The said suspicion can be either right or wrong. But one thing is sure, unless and until that suspicion is removed there cannot be a re-union or peaceful and harmonize life, even if so happened. It is seen that the suspicion has grown up to the level of generating psychological impact so as to observe each and every act of **R.P.(F.C)No.151 of 2012** 8 the 1[st] respondent suspiciously, after their marriage. 9. Having regard to the entire sequences of events from the beginning of the marriage, I am of the opinion that the scientific test alone can remove the suspicion regarding the paternity of the 2[nd] respondent. The case on hand is not a case of maintenance alone and it is a case in which the marital life irretrievably broken on suspicion. In short, Deoxyribonucleic Acid (DNA) test alone is a proper remedy for the restitution of a peaceful family life and it stands to reason. 10. Let us consider the scope and legal validity of DNA test, at the very beginning of this M.C proceedings, the Revision petitioner had filed CMP No.801/2011 seeking an order directing to conduct DNA test for proving paternity of the 2[nd] respondent. Going by the order passed by the family court on the said application, it is seen that the 1[st] respondent had agreed that if the court so directs she is prepared for DNA test; provided that the counter petitioner **R.P.(F.C)No.151 of 2012** 9 meets the travelling expenses and Rs.10,000/- towards mental agony. The above stance shows that the 1[st] respondent was also agreeable to DNA test on condition. But the court below dismissed the said petition relying on the statutory presumption u/s 112 of the Evidence Act. The main ground on which that application had been dismissed was that the non access to each other at the time when the child could have been begotten, is not proved. I cannot find fault with the family court for arriving such a finding at that time, relying on the said presumption. It is true that DNA test is not to be directed as a matter of routine and only in deserving cases such a direction can be given **[2005(2) KLT 729 (SC) Banarsi Das vs. Tiku Dutta]** , but now I am inclined to think the issue in a different angle. The development and progress of Science and Technology makes it possible to authentically ascertain whether a person is the biological father of a child. We should remember that in 1872 at the time when Sec.112 was **R.P.(F.C)No.151 of 2012** 10 enacted, this advantage of Science and Technology was not available. So the Legislative intention was that to safeguard the interests of the child from being bastardized, in the event that paternity is in question. A distinction has to be drawn between 'legitimacy' and 'paternity' of the child. Legitimacy can be established by legal presumption; whereas it is desirable to establish paternity by scientific test (DNA test) particularly when both parties agree. In **2003(2) KLT 243 (SC) Sharda vs. Dharmpal** after referring **AIR 1993 SC 2295 Goutam Kundu vs. State of West Bengal** held that DNA test is the scientific authority and it can be allowed after weighing all “pros and cons” and on being satisfied about the existence of eminent need. 11. In the decision in **2003(2) KLT 243 (SC) (Sharda vs. Dharmapal)** considering the authority of a court to issue direction for compelling a party to a suit or proceeding to submit himself for medical examination the Supreme Court has unequivocally expressed the view that even if enabling **R.P.(F.C)No.151 of 2012** 11 statutory provisions are absent, that does not preclude a court from passing such an order. Right of privacy conferred by Article 21 of the Constitution of India, it was held, cannot be an absolute right, and that some limitations on the right of the individual have to be imposed, particularly, where two competing interest clashed. The apex court has expressed the view that the court has to reconcile the competing interest by balancing the interest involved in the proceedings, indicating that orders which are necessary to advance the ends of justice even if it affect the right of privacy of an individual, can be passed by the court. 12. Having regard to the entire facts and circumstances of the case, I am of the opinion that the conservative form of evidence under the legal presumption is not sufficient to resolve the matter in issue involved in this family dispute. I find that this case falls under the exceptional cases were DNA test is in eminent need to **R.P.(F.C)No.151 of 2012** 12 resolve the issue and to restitute broken marital life, particularly when the 1[st] respondent has agreed for the same on condition. Consequently, this Revision petition will stand allowed as follows: i) The impugned order under challenge and the order dated 03/08/2011 in CMP No.801/2011 will stand set aside and MC is remitted back for fresh consideration after getting result of DNA test, on compliance of the following conditions, failing which this order will stand automatically vacated and aforesaid orders will continue in force. ii) The Revision petitioner shall deposit entire arrear of maintenance due to the respondents 1 and 2 within a period of one month from the date of receipt of the copy of this order. iii) The Revision petitioner shall deposit Rs.20,000/- in the family court, Palakkad within one month from the date of receipt of a copy of this order and the same shall be given to the 1[st] respondent towards her travelling expenses for 13 ## **R.P.(F.C)No.151 of 2012** DNA test and also for her mental agony. iv) The Revision petitioner shall meet entire expenses for DNA test. v) On compliance of the above conditions, the family court shall take all necessary steps to conduct DNA test and shall pass fresh order in the M.C on receipt of the result of DNA test, after affording an opportunity of being heard to both parties, at any rate, within a period of two months from the date of receipt of the result of DNA test. This RP(FC) is disposed of accordingly. **K.HARILAL, JUDGE.** ## **stu**