Layon Thomas Kumar v. Mariyam Sayonara

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH ``` ``` WEDNESDAY, THE 8[TH] DAY OF NOVEMBER 2023 / 17TH KARTHIKA, ``` ## **`1945`** ## **`OP(CRL.) NO. 275 OF 2022`** ``` AGAINST THE ORDER IN CMP No.03 OF 2021 IN MC 210/2017 OF FAMILY COURT, THIRUVANANTHAPURAM DATED 20.04.2022 ``` ## **`PETITIONER/RESPONDENT/RESPONDENT:`** ``` LAYON THOMAS KUMAR AGED 52 YEARS S/O LATE LEON, RESIDING AT 13/655, USHAS NILAYAM, KADAIKULAM, KOTTAPPURA P.O, VIZHINJAM, THIRUVANANTHAPURAM,, PIN – 695 521 BY ADVS.J.R.PREM NAVAZ SUMEEN S. ``` ## **`RESPONDENT/PETITONER/PETITIONER:`** ``` MARIYAM SAYONARA AGED 14 YEARS D/O ROSHINI ROBINSON, REPRESENTED BY HER MOTHER ROSHINI ROBINSON, THROUGH HER POWER OF ATTORNEY HOLDER BEATRICE, RESIDING AT REMA NIVAS, MARKET ROAD, VALIYATHURA, THIRUVANANTHAPURAM DISTRICT,, PIN – 695 008 ``` ``` BY ADV GIRISH KUMAR M S ``` ``` THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 08.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` O.P.(Crl.) No. 275 of 2022 -:2:- ## **MARY JOSEPH, J.** - - - - - - - - - - - - - - - - - - - - - - - O.P.(Crl.) No. 275 of 2022 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 8[th] day of November, 2023 ## **JUDGMENT** This Original Petition is filed under Article 227 of the Constitution of India seeking interference with an order passed by Family Court, Thiruvananthapuram on 20.04.2022 in CMP No.03 of 2021 in MC No.210 of 2017 and to set aside the same. 2. MC No.210 of 2017 was filed before Family Court, Thiruvananthapuram by the respondent in the petition on hand, represented by her mother as power of attorney holder seeking for monthly maintenance allowance under Section 125 of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’). For clarity and brevity, the parties to this Original Petition will hereinafter be referred to as the petitioner and the respondent in accordance with their status in the M.C. ## O.P.(Crl.) No. 275 of 2022 -:3:- 3. CMP No.03 of 2021 was filed in the above MC by the petitioner seeking for a direction to conduct a Deoxyribonucleic Acid Test (for short ‘DNA Test’) to determine paternity of the minor child so as to rebut the contention of the respondent that the child is not born to him. Family Court, Thiruvananthapuram passed an order on 20.04.2022 allowing the DNA test of the petitioner by the Rajiv Gandhi Centre for Biotechnology, Thiruvananthapuram to be conducted to determine the paternity. Copy of the application filed as CMP No. 3 of 2021 in M.C. No. 210 of 2017 is appended to the petition on hand as Ext.P5. Aggrieved by the said order and alleging that it compelled the respondent to undergo DNA test and thereby his personal liberty and right to privacy were infringed, the Original Petition on hand was moved. 4. It is contended by Sri.J.R. Prem Navaz, the learned counsel for the respondent that the order under ## O.P.(Crl.) No. 275 of 2022 -:4:- challenge passed by Family Court, Thiruvananthapuram is against the legal position settled in **Ashok Kumar v. Raj Gupta and others** [2021 KHC 6565] and **Kamti Devi (Smt.) and another v. Poshi Ram** [2001(5) SCC 311]. It was contended further that while allowing Ext.P5 application the Family Court failed to take note of Sections 4 and 112 of the Indian Evidence Act, 1872. It also failed to appreciate the inseparable relationship between protection of life and liberty with dignity envisaged under the Constitution of India. According to him, the petitioner while moving an application seeking monthly maintenance allowance has concealed and suppressed that she had undergone two major operations and due to block caused to her brain nerve, she was unable to indulge in any sexual relationship and that she was unable to lead a happy family life including sexual activities and pregnancy. Accordingly the O.P.(Crl.) No. 275 of 2022 -:5:- impugned order was sought to be set aside and CMP No.3/2021, to be dismissed. 5. The learned counsel for the petitioner has contended that Family Court, Thiruvananthapuram has passed the impugned order after delving on the averments of the petitioner in the application as well as the contentions raised by the respondent in the counter statement filed. According to him, the impugned order being legal, proper and correct, is not liable to be interfered with. 6. This Court perused the averments in Ext.P5. It was filed by the power of attorney holder of the petitioner who represented her in it. The specific averment of the power of attorney holder in Ext.P5 was that the petitioner had lived together with the respondent. According to her, there was no marriage between the petitioner and the respondent but they lived together in different places and thereby the former O.P.(Crl.) No. 275 of 2022 -:6:- became pregnant. The respondent on the contrary has taken contentions that they never resided together, and that it is the duty of the petitioner to prove that he is the biological father. In that context the conduct of DNA test was sought. It is stated that the child is a party to the proceedings and the mother is willing to subject the child to DNA test. According to the petitioner, it is the only recourse available to her to negative the contention of the respondent and to assert her right. Accordingly direction of the Family Court was sought to be issued to the petitioner to produce the minor child for the DNA test in any of the institutions in Thiruvananthapuram as the court deems fit in the interest of justice. Objection was filed by the respondent in CMP No.3/2021 contending as follows. 7. The petition is filed only to harass the respondent. CMP is not maintainable in law or on facts. In the certificate issued by the Registrar of Births and O.P.(Crl.) No. 275 of 2022 -:7:- Deaths, the name of the father of the child is entered as ‘Arthur Leo’ and the application filed there for the registration of births and deaths was signed by and given by the petitioner, who clearly knows the actual father of the child. The birth certificate of the minor child would show that one Mr.Arthur Leo (Arthur Leo Levillard) is the husband of the petitioner. According to him, he has no connection with the petitioner, except that stated in the objection to the Maintenance Case and is also not the father of the minor child. Therefore, the petitioner has no right to claim any maintenance allowance on behalf of the minor child from the respondent. She has to claim maintenance allowance only from the actual father of the minor child and not from the respondent. The allegation that the petitioner lived with the respondent and had carnal relation with him is totally denied as incorrect. There was no marriage between the petitioner and himself. Even if a child is ## O.P.(Crl.) No. 275 of 2022 -:8:- born in a relationship not admitted, he/she will only have the status of an illegitimate child and cannot claim maintenance allowance under Section 125 Cr.P.C, that being the settled position of law. Even if it is proved in the DNA test that the respondent is the biological father of the minor child, the petitioner cannot claim maintenance allowance from the respondent for the minor child, as she will not come within the purview of a legitimate child under Section 125 Cr.P.C. Therefore even if the result in a DNA test is obtained in favour of the minor child, she being not a legitimate child, will not be entitled to get monthly maintenance allowance. The petitioner cannot blow hot and cold by stating the name of her actual husband as the father of the minor child in the application filed before the Registrar of births and deaths and the respondent as the person liable to pay maintenance allowance in the Maintenance Case. ## O.P.(Crl.) No. 275 of 2022 -:9:- Therefore, it was canvassed that DNA test sought is totally unwarranted and it ought to have been declined. 8. The Family Court, Thiruvananthapuram passed an order in Ext.P5 on 20.04.2022 whereby, the petition was allowed and DNA test was ordered to be conducted to determine the paternity of the minor child by Rajiv Gandhi Centre for Biotechnology, Thiruvananthapuram. The Director of the Centre was thus directed to convey the requirements of the test and a convenient date for holding the test. Aggrieved by the said order, the respondent in CMP No.3/2021 has approached this Court in the Original Petition on hand. 9. It has been held by the Apex Court in **Bhabani Prasad Jena v. Convenor Secretary, Orissa State Commissioner for Women and Another** [AIR 2010 SC 2851] that DNA test or paternity test should not be directed by the court as a matter of routine and such an order can only be given, if a strong _prima facie_ case is ## O.P.(Crl.) No. 275 of 2022 ## -:10:- made out. It has also been held by the Apex Court in **Sharda V. Dharmpal** [AIR 2003 SC 3450] that a matrimonial court has the power to direct a person to undergo a medical test and such a direction need not be in violation of any of his right to personal liberty. It has also been held that while exercising the power to order a medical test against a person, the court should refrain and only when a strong _prima facie_ case is made out supported by sufficient materials, it can pass such an order. 10. It has been held by the Apex Court in **Ashok Kumar** supra that in circumstances where other evidence is available to prove or dispute the relationship, court should ordinarily refrain from ordering blood test because such test would impinge upon the right of privacy of the individual and also have major social repercussions. O.P.(Crl.) No. 275 of 2022 -:11:- 11. The Apex Court in **Kamti Devi (Smt)** supra refers about conclusive presumption under Section 112 of the Indian Evidence Act, 1872 and the mode of rebuttal of the presumption. It has been held that the petitioner seeking to rebut the presumption must show that neither he had opportunity to approach his wife nor had his wife got the opportunity to approach him during the relevant period. The dictum is not applicable in the case on hand since no claim was made by the petitioner through her power of attorney holder that herself and the respondent were married and lived together as wife and husband. 12. It is noticed that MC No.210/2017 was filed by the petitioner seeking for monthly maintenance allowance on child’s behalf, who according to her, was born to her while staying together with the respondent. Admittedly the petitioner and the respondent were not married. But the case of the power of attorney holder of O.P.(Crl.) No. 275 of 2022 -:12:- the petitioner was that the respondent and the petitioner had lived together in several places and that led her to conceive from the respondent and gave birth to the minor child. As per Section 125 Cr.P.C, both legitimate and illegitimate minor child are entitled to get monthly maintenance allowance. In the case on hand the respondent is totally denying the averment that the petitioner and himself had lived together and in their physical relationship, the minor child was begotten. The power of attorney holder who represents the petitioner asserts that the petitioner and the respondent had physical relationship while they were living together in different places. Therefore, in order to establish the right of the minor child to get monthly maintenance allowance from the respondent as his illegitimate child, she needs the proof that she was born to the respondent in his living relationship with her mother and that can only be established assertively by undergoing DNA test. ## O.P.(Crl.) No. 275 of 2022 -:13:- The courts should always be cautious against the trend to bastardise an innocent child, if his mother had taken a contention that the minor child was born to her in her living together relationship. There is no other way available to establish the factum of living together relationship of the petitioner with the respondent and the birth of the child in that relationship. In the context, DNA test alone can find out the truth regarding the paternity of the minor child. The court below has considered all aspects of the case, allowed CMP No.3/2021 and passed the impugned order directing DNA test of the respondent to be conducted. This Court finds no reason to interfere with the impugned order and it is maintained. The Original Petition fail for the reasons and is dismissed. Sd/- **MARY JOSEPH,** ttb O.P.(Crl.) No. 275 of 2022 -:14:- ## **`APPENDIX OF OP(CRL.) 275/2022`** ``` PETITIONER’S EXHIBITS : ``` ``` Exhibit P1 ``` - `THE TRUE COPY OF THE M.C. NO: 210 OF 2017 FILED BY THE RESPONDENT HEREIN THROUGH HER MOTHER UNDER SECTION 125 OF THE CODE OF CRIMINAL PROCEDURE` - `Exhibit P2 THE TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER BEFORE THE FAMILY COURT THIRUVANANTHAPURAM IN M.C. NO: 210 OF 2017 I` - `Exhibit P3 THE TRUE COPY OF THE BIRTH CERTIFICATE OF THE RESPONDENT` - `Exhibit P4 THE TRUE COPY OF THE RELEVANT PAGES OF THE PASSPORT OF THE RESPONDENT` - `Exhibit P5 THE TRUE COPY OF THE CMP NO: 03 OF 2021 IN M.C. NO: 210 OF 2017 FILED BY THE RESPONDENT BEFORE THE FAMILY COURT THIRUVANANTHAPURAM` ``` Exhibit P6THE TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER IN CMP NO: 03 OF 2021 IN M.C. NO: 210 OF 2017 FILED BY THE RESPONDENT BEFORE THE FAMILY COURT THIRUVANANTHAPURAM ``` - `Exhibit P7 THE TRUE COPY OF THE ORDER DATED 20.04.2022 IN CMP NO: 03/2021 IN M.C. NO: 210 OF 2017 PASSED BY THE FAMILY COURT THIRUVANANTHAPURAM` ## //TRUE COPY// Sd/- P.S. TO JUDGE