P.V. RIYAS v. K. KADHEEJA

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN MONDAY, THE 23RD DAY OF OCTOBER 2017/1ST KARTHIKA, 1939 OP (FC).No. 269 of 2017 (R) ---------------------------- (AGAINST THE ORDER IN I.A.NO.512 OF 2016 IN O.P.NO.165 OF 2015 OF FAMILY COURT, KOZHIKODE.) PETITIONER/PETITIONER/RESPONDENT: -------------------------------- P.V. RIYAS, AGED 44 YEARS, S/O.ABOOBACKER, 20/608 E, PUTHAN VEEDU, P.K.LINE, KUTTICHIRA, KOZHIKODE-1, NAGARAM AMSOM DESOM, KOZHIKODE TALUK. BY ADVS.SRI.K.M.FIROZ SMT.M.SHAJNA SRI.E.C.AHAMED FAZIL RESPONDENT/RESPONDENT/PETITIONER: -------------------------------- K. KADHEEJA AGED 32 YEARS, D/O.ABOOBACKER, 16/113, KADAKKLAM HOUSE, KUTTICHIRA, NAGARAM AMSOM DESOM, KOZHIKODE-1. BY ADV. SRI.SRINATH GIRISH BY ADV. SRI.K.P.ATHUL THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 03/08/2017, THE COURT ON 23-10-2017, DELIVERED THE FOLLOWING: OP (FC).No. 269 of 2017 (R) ---------------------------- APPENDIX PETITIONER'S EXHIBITS --------------------EXHIBIT P1 A TRUE COPY OF THE ORIGINAL PETITION NO.165 OF 2015 ON THE FAMILY COURT, KOZHIKODE FILED BY THE RESPONDENT HEREIN. EXHIBIT P2 A TRUE COPY OF THE COUNTER DATED 20-1-2016 FILED BY THE PETITIONER HEREIN IN O.P.NO.165 OF 2015 ON THE FILES OF FAMILY COURT, KOZHIKODE. EXHIBIT P3 A TRUE COPY INTERLOCUTORY APPLICATION I.A.NO.512 OF 2016 IN ORIGINAL PETITION NO.165 OF 2015 ON THE FILES OF FAMILY COURT, KOZHIKODE FILED BY THE PETITIONER HEREIN. EXHIBIT P4 A TRUE COPY OF COUNTER IN I.A.NO.512 OF 2016 IN ORIGINAL PETITION NO.165 OF 2015 ON THE FILES OF FAMILY COURT, KOZHIKODE FILED BY THE PETITIONER HEREIN. EXHIBIT P5 A TRUE COPY OF ORDER IN I.A.NO.512 OF 2016 IN ORIGINAL PETITION NO.165 OF 2015 PASSED BY THE FAMILY COURT, KOZHIKODE RESPONDENT'S EXHIBITS --------------------- NIL TRUE COPY P.S TO JUDGE ## **A.M.SHAFFIQUE, J & ANU SIVARAMAN, J** *** * * * * * * * * * * * * *** O.P.(FC) No.269 of 2017 ---------------------------------------Dated this the 23[rd] day of October 2017 ## **J U D G M E N T** ## **Shaffique, J** This original petition is filed by the respondent in O.P.No. 165/2015 challenging the order dated 25/11/2016 in I.A.No. 512/2016 in O.P.No.165/2015. 2. I.A.No.512/2016 was filed by the petitioner herein seeking for a direction for conducting a DNA test of his daughter Fathima. The respondent disputed the above application. Family Court, after considering the matter, observed that in so far as the original petition has been filed for dissolution of marriage under the Dissolution of Muslim Marriages Act, 1939, a decision in regard to the paternity of the second child is unwarranted and therefore, a DNA test is totally unnecessary. 3. Learned counsel for the petitioner contended that the main contention urged by the petitioner in the original petition is with reference to the cruelty inflicted on her alleging paternity of the 2[nd] child. According to the petitioner herein, it is a fact that O.P.(FC) No.269/2017 2 she was having relationship with another person and the second child does not belong to him. These matter require consideration and therefore, the husband is bound to prove the allegation raised by him against her. 4. On the other hand, learned counsel for the respondent/wife supported the stand taken by the Family Court. In the petition, she had specifically pleaded that the petitioner has doubt regarding the paternity of the 2[nd] child, which itself will prove the cruel mind of the petitioner. In the objection filed to the original petition, the respondent/husband had made specific allegation in regard to the paternity of the child. 5. Learned counsel for the petitioner placed reliance upon the judgment in **Dipanwita Roy v. Ronobroto Roy** _[(2015) 1 SCC 365]_ wherein the Apex Court had held that when the husband has made clear and categorical assertions in the petition filed by him under Section 13 of the Hindu Marriage Act, alleging infidelity and when an application is filed for conducting DNA test, conducting of such DNA test is the proper method for proving that particular fact. It was held that the husband's plea that he had no access to the wife when the child was begotten O.P.(FC) No.269/2017 3 can be proved by conducting a DNA test. It was also held that DNA test is an accurate test. It is further held that although Section 112 of the Evidence Act raises a presumption of conclusive proof on satisfaction of the conditions enumerated therein, the same is rebuttable and where there is evidence to the contrary, presumption is rebuttable and must yield to proof. 6. In **Nandlal Wasudeo Badwaik** _[AIR 2014 Supreme Court 932]_ it was held that the DNA test report was not in conflict with the presumption of conclusive proof of legitimacy of the child under Section 112 of the Evidence Act. 7. However, the learned counsel for the respondent, places reliance upon another judgment in **Banarsi Dass v. Teeku Dutta** _[(2005) 4 Supreme Court Cases 449]._ In that case, it was held that the DNA test is not to be directed as a matter of routine and it is to be directed only in deserving cases. It was held at paragraph 14 as under: _**“14.** The main object of a succession certificate is to facilitate collection of debts on succession and afford protection to the parties paying debts to the representatives of deceased persons. All that the succession certificate purports to do is to facilitate_ O.P.(FC) No.269/2017 4 _the collection of debts, to regulate the administration of succession and to protect persons who deal with the alleged representatives of the deceased persons. Such a certificate does not give any general power of administration on the estate of the deceased. The grant of a certificate does not establish title of the grantee as the heir of the deceased. A succession certificate is intended as noted above to protect the debtors, which means that where a debtor of a deceased person either voluntarily pays his debt to a person holding a certificate under the Act, or is compelled by the decree of a court to pay it to the person, he is lawfully discharged. The grant of a certificate does not establish a title of the grantee as the heir of the deceased, but only furnishes him with authority to collect his debts and allows the debtors to make payments to him without incurring any risk. In order to succeed in the succession application the applicant has to adduce cogent and credible evidence in support of the application. The respondents, if they so choose, can also adduce evidence to oppose grant of succession certificate. The trial court erroneously held that the documents produced by the respondents were not sufficient or relevant for the purpose of adjudication and DNA test was conclusive. This is not a correct view. It is for the parties to place evidence in support of their_ O.P.(FC) No.269/2017 5 _respective claims and establish their stands. DNA test is not to be directed as a matter of routine and only in deserving cases such a direction can be given, as was noted in Goutam Kundu case. Present case does not fall in that category. The High Court’s judgment does not suffer from any infirmity. We, therefore, uphold it. It is made clear that we have not expressed any opinion on the merits of the case relating to succession application.”_ 8. In this case, Court below noticed the fact that for proving the allegations raised in the petition for divorce, there was no necessity to prove the paternity of the 2[nd] child. 9. Specific contention had been raised by the respondent in the original petition stating that, challenging the paternity of the child itself is cruelty. In the objection filed, the husband had indicated that she was having some relationship with one Rasheed. There was a mediation talk and it was decided to conduct a DNA test. But, she backed out of the promise. Since he had serious doubt about the paternity of the child, it is not a mere allegation. Therefore, it could be seen that one of the grounds of cruelty is regarding questioning the paternity of the second child. Necessarily, it amounts to a matrimonial dispute O.P.(FC) No.269/2017 6 between the parties. But, cruelty is only one of the grounds alleged by her. It is for her to prove the allegations of cruelty. 10. Therefore, as rightly pointed out by the Family Court, when the allegations are to be proved by the respondent, in respect of the grounds alleged by her, unless paternity of the child is an issue before the Court which is required to be decided, for a proper adjudication of the matter, there is no necessity for the Court to direct DNA test to be conducted. In the said circumstances, we do not find any reason to interfere with the order passed by the Family Court. The original petition is dismissed. However, disposal of the case shall not preclude the Family Court from taking a different view, if such an adjudication is warranted during the trial of the case. (sd/-) **(A.M.SHAFFIQUE, JUDGE)** (sd/-) **(ANU SIVARAMAN, JUDGE)** jsr