OP (FC).No.654 OF 2018

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **WEDNESDAY, THE 13TH DAY OF NOVEMBER 2019 / 22ND KARTHIKA, 1941** ## **OP (FC).No.654 OF 2018** ## **AGAINST THE ORDER/JUDGMENT IN OP 748/2016 OF FAMILY COURT, MAVELIKKARA** ## **PETITIONER/S:** **1 KOMALAN AGED 63 YEARS S/O. KUTTAPAN, MURIMALAKIZHAKKATHIL, PUTHIYACAVU MURI, MAVELIKARA , REPRESENTED BY WIFE AND POWER OF ATTORNEY HOLDER SATHI, AGED 62 YEARS, W/O. KOMALAN, MURIMALAKIZHAKKATHIL, PUTHIYACAVU MURI, MAVELIKKARA-690101.** **2 SATHI, AGED 62 YEARS W/O. KOMALAN, MURIMALAKIZHAKKATHIL, PUTHIYACAVU MURI, MAVELIKARA , ALAPPUZHA DISTRICT - 690101.** **BY ADVS. SRI.R.S.KALKURA SRI.HARISH GOPINATH SMT.R.BINDU SMT.P.ANJANA SRI.M.S.KALESH** ## **RESPONDENT/S:** **1 SREEKUMARY, D/O. KOMALAN, PALAMOOTIL, AGED 41 YERAS, CHERVAVALLY MURI, PLAMOOTIL HOUSE, KAYAMKULAM VILLAGE, ALAPPUZHA DISTRICT -609502.** **OP (FC).No.654 OF 2018** **2** **2** **LEELA,** **D/O. KUNJACHAN, MURIMALAKIZHAKKATHIL, PUTHIYACAVU MURI, MAVELIKARA, ALAPPUZHA -690502.** **R1-2 BY ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) R1-2 BY ADV. SRI.A.R.DILEEP R1-2 BY ADV. SRI.P.J.JOE PAUL** **THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 06-112019, THE COURT ON 13-11-2019 DELIVERED THE FOLLOWING:** **OP (FC).No.654 OF 2018** **3** **==> picture [49 x 14] intentionally omitted <==** **K.HARILAL & ANNIE JOHN, JJ ====================== O.P.(F.C.) No. 654 of 2018 =============================== Dated this the 13[th] day of November, 2019** ## **JUDGMENT** ## **ANNIE JOHN, J** The first respondent herein has filed O.P.No.748 of 2016 for declaration that she is the daughter born in the wedlock between first petitioner herein and second respondent and consequential permanent prohibitory injunction restraining the second petitioner from interfering with the peaceful right to visit the first petitioner herein, in his house named Murimala Kizakkathil at Mavelikara Village. The second petitioner is the power of attorney holder of the first petitioner had filed a detailed objection to the Original Petition stating the true facts and also prayed for **OP (FC).No.654 OF 2018** **4** dismissal of the Original Petition. On 19.05.2018, the first respondent herein filed I.A.No.1223 of 2018 under Section 151 of Code of Civil Procedure Code r/w Section 45 of Evidence Act, for DNA examination. Since the said petition lacks _bonafides,_ the petitioners herein filed a detailed counter affidavit stating that the said petition is not sustainable either in law or on facts. But the Lower Court below without considering the facts and circumstances as narrated above, allowed the I.A.No.1223 of 2018 on 03.10.2018. Aggrieved by the same, the Appeal has been preferred. 2. The appellant case is that the first respondent has filed a petition for declaring herself as a daughter born in the wedlock between the first petitioner and the second respondent and also sought for a permanent prohibitory injunction restraining the second **OP (FC).No.654 OF 2018** **5** petitioner from interfering with the peaceful right to visit the first petitioner's residential house named 'Murimala Kizhakkathil' at Mavelikkara Village. 3. According to the first respondent, marriage of the first petitioner and mother of the first respondent was held on 05.05.1972 at Marimala Kizhakkathil House, in the presence of kits and kins as per Hindu Religious Rites and ceremonies. The first respondent was born on the said wedlock on 26.05.1973. Later, due to difference of opinion arose between the first petitioner's family members and the second respondent, mother of the first petitioner; the first petitioner started to evade his wife and children somehow or other. The first petitioner did not care to come to the house or attend day to day affairs of the respondents. Thereafter, the first petitioner married the second petitioner. Even after their marriage they **OP (FC).No.654 OF 2018** **6** considered and accepted the first respondent herein as their daughter and allowed to visit their residential house. When the first petitioner came back from abroad, he and his family members are not willing to accept first respondent as his daughter and the second petitioner is not allowing the first respondent to visit the home. So, the first respondent has filed the Original Petition before the Family Court, Mavelikara, copy of the same was produced as Exhibit P1. 4. In fact, the allegations raised in the Original Petition are against truth. The second petitioner herein is the wife of the first petitioner and he is in abroad. In such circumstances, the second petitioner obtained the power of attorney of the first petitioner and filed a detailed objection to the Original Petition and prayed for dismissal of the Original Petition. **OP (FC).No.654 OF 2018** **7** 5. In fact, there was no marriage between the first petitioner and mother of the first respondent. The first respondent has not produced any document showing that there were a marital relationship between the first petitioner and the first respondent's mother. The true copy of the objection is produced as Exhibit P2. By the way on 19.05.2018, the first respondent herein filed I.A.No.1223 of 2018 under Section 151 of Code of Civil Procedure Code r/w Section 45 of Evidence Act, for DNA examination. True copy of the petition is produced as Exhibit P3. 6. According to the petitioners the petition lacks _bonafide._ But the Lower Court after considering the arguments on either sides had allowed the application as per Exhibit P5. Now the grievances of the petitioners are that the Court below has not considered the fact that there was no marital relationship between **OP (FC).No.654 OF 2018** **8** the first petitioner and the mother of the first respondent. The Court below ought to have found that when there is no marital relationship between the parties DNA test can be ordered only on _prima facie,_ satisfaction of proof regarding the truth. 7. According to the petitioners, the factum of paternity does not mean that Court should direct the DNA test or such other test to resolve the controversy. The party should be directed to lead evidence to prove or disprove the factum of paternity and only if Court find it impossible to draw an interference or adverse interference on the basis of such evidence or the controversy in issue can't be resolved without a DNA test. 8. The learned counsel for the respondents has opposed and stated that the paternity is only to be decided in this case. Since the first respondent has filed a petition for **OP (FC).No.654 OF 2018** **9** declaration of paternity that the first petitioner is her father and she has borne out on the wedlock of the first petitioner and the second respondent. 9. According to the respondents counsel, the relief sought for in the Original Petition are essential and necessary to determine the paternity of the first respondent. 10. The definite case of the first respondent is that she has born out of the wedlock of the first petitioner and his first wife namely Leela who is arrayed as second respondent in this case. According to her, after the second marriage of the first petitioner, she was treated as the daughter of them and subsequently his attitude is changed and she was driven away from the residence of the first petitioner. 11. Now the case urged by the petitioners is that there is no evidence to prove that the **OP (FC).No.654 OF 2018** **10** first respondent was born out of the wedlock of the first petitioner and the second respondent. But they have totally denied the marital relationship between the first petitioner and the second respondent. 12. The Court below has stated that the first respondent is the petitioner in O.P.No.748 of 2016 who has filed a petition for declaratory relief that she is the daughter born in the matrimonial relationship between the first respondent and additional third respondent. 13. First respondent, first petitioner herein is disputing the paternity of the first respondent, DNA examination is highly necessary to settle the dispute. Accordingly, the petition was allowed. 14. The learned counsel for the petitioners cited the ruling held in _**Ranjan Kumar Behera alias Naik v. Domburudhar Behera and others**_ **OP (FC).No.654 OF 2018** **11** _**[2017 KHC 3395].**_ It has held that regarding the paternity of child as specified under Section 112 of the Evidence Act, any order for DNA can be given by the Court only if a strong _prima_ _facie_ case is made out for such a course. 15. It has held in _**Rohit Shekhar v.**_ ## _**Narayanan Dutt Tiwari and another [2011 KHC**_ _**2377].**_ Where it was held the importance of Section 112 of Evidence Act. It whs held that Sections 7 to 14 of the Family Courts Act, 1984 enacts if any evidence which would otherwise not be relevant/admissible under the Evidence Act, assists the Court, may be both relevant and admissible in such proceedings. While the presumption under Section 112 of the Evidence Act renders the results of such test futile as to the legitimacy of the child, the relevance of such tests cannot be disregarded, in regard to matters and disputes covered by the Family Courts Act, and triable under it. Section 7 of **OP (FC).No.654 OF 2018** **12** the Act provides for jurisdiction of the Court in this respect. 16. Here the second respondent is abandoned by the first petitioner, who wants to declare that she is the child of the first petitioner herein. In such a contingency the Court has to exercise his power and send that for a DNA test. It has held in _**Nandalal Wasudeo Badwaik v. Lata Nandalal Badwaik and Another [2014 KHC 4005]**_ . 17. Where it has held that when there is a conflict between a conclusive proof envisaged under law and a proof based on scientific advancement accepted by the world community to be correct,the latter must prevail over the former. Result of DNA test would prevail. 18. In the objection the petitioner has stated that the first respondent has raised a false case against the petitioners. But they have denied the paternity of the first **OP (FC).No.654 OF 2018** **13** petitioner as stated that the first petitioner and the mother of the first respondent was not a husband and wife. So the definite case is that in order to tarnish the petitioners, the first respondent has filed such a petition before the Court below. 19. According to the first respondent, she was treated as the daughter of the first petitioner, even after, the first petitioner got married to the second petitioner. Now the first petitioner obtained a high status, they started to avoid the first respondent. So definitely, she wants to declare that the first petitioner is the father of herself and the address of the first petitioner was given as the daughter of Komaian. When there is a total denied on the part of the petitioners regarding the paternity of the first respondent definitely in order to succeed in proving her case the DNA test is highly required. It is **OP (FC).No.654 OF 2018** **14** already alleged that the first petitioner is her father. So there is no harm in sending the blood samples for DNA test to prove or disprove the paternity of the first respondent. 20. In fact the first respondent has filed a petition for declaration that she is the daughter of the first petitioner. There is no other way of proving her case except through the DNA test. We do not find any ground to interfere with the order passed by the Court and it is only to be confirmed. In the result, this appeal is dismissed and the petitioners are directed to comply the order of the Lower Court below within two weeks from the date of this judgment. - **Sd/** ## **K.HARILAL, JUDGE** **Sd/-** ## **ANNIE JOHN, JUDGE** **SMA** **OP (FC).No.654 OF 2018** **15** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **THE TRUE COPY OF THE ORIGINAL PETITION NO.748/2016 FILED BY THE 1ST RESPONDENT BEFORE THE FAMILY COURT, MAVELIKARA.** **EXHIBIT P2 THE TRUE COPY OF THE OBJECTION FILED BY THE PETITIONERS IN OP NO.748/2016, ON THE FILES OF FAMILY COURT, MAVELIKARA.** **EXHIBIT P3** **TRUE COPY OF IA 1223/2018, FILED UNDER SECTION 151 OF CODE OF CIVIL PROCEDURE CODE READ WITH SECTION 45 OF EVIDENCE ACT, FOR DNA EXAMINATION IN OP NO.748/2016.** **EXHIBIT P4** **TRUE COPY OF OBJECTION TO IA 1223/2018 FILED BY THE PETITIONERS.** **EXHIBIT P5** **THE TRUE COPY OF THE ORDER DATED 03/10/2018 IN IA NO.1223/2018.** ## **RESPONDENT(S)' EXHIBITS :- NIL** **//TRUE COPY//** **PA TO JUDGE** **SMA**