VELAYUDHANKUTTY K.V. v. A.G. LEENA, MINOR VAIGA, MINOR VAIBHAV, THE STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **THURSDAY, THE 28[TH] DAY OF OCTOBER 2021 / 6TH KARTHIKA, 1943 CRL.MC NO. 2298 OF 2021** **MC 27/2019 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,THRISSUR,** ## **THRISSUR** ## **PETITIONER/RESPONDENT** VELAYUDHANKUTTY.K.V. AGED 48 YEARS S/O. VELAYUDHAN, KOZHIPARAMBIL HOUSE, POOTHOLE P.O. THRISSUR 680 004. BY ADV RAJESH CHAKYAT ## **RESPONDENTS/COMPLAINANTS** 1 A.G.LEENA AGED 38 YEARS D/O. GOPI, INNIKUNNATH HOUSE, APARTMENT NO. 10 C AND D, VADAKKUMNADHAN RESIDENCY, NARAYANATHARA, CHOOLISSERRY VILLAGE, THRISSUR 680 541. 2 MINOR VAIGA, AGED 6 YEARS REPRESENTED BY HER MOTHER, A.G. LEENA, D/O. GOPI, INNIKUNNATH HOUSE, APARTMENT NO. 10 C AND D, VADAKKUMNADHAN RESIDENCY, NARAYANATHARA, CHOOLISSERRY VILLAGE, THRISSUR 680 541. 3 MINOR VAIBHAV, AGED 3 YEARS REPRESENTED BY HER MOTHER, A.G. LEENA, D/O. GOPI, INNIKUNNATH HOUSE, APARTMENT NO. 10 C AND D, VADAKKUMNADHAN RESIDENCY, NARAYANATHARA, CHOOLISSERRY VILLAGE, THRISSUR 680 541. 4 THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA 682 031. Crl.M.C.2298/2021 2 BY ADVS. K.R.VINOD M.S.LETHA PP SRI. RENJIT GEORGE,SR GP THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 27.10.2021, THE COURT ON 28.10.2021, DELIVERED THE FOLLOWING: Crl.M.C.2298/2021 3 ## ORDER ## Dated : 28[th] October, 2021 1. This Crl.M.C has been filed seeking a direction to the Judicial First Class Magistrate Court-I, Thrissur to consider and pass appropriate orders on merits in Crl.M.P.375/2020 in M.C.27/2019 before commencement of the trial in the said case. 2. Petitioner is the respondent in M.C.27/2019 and the respondents are the petitioners in the said case. M.C.27/2019 has been filed by the respondent seeking a residential order as well as maintenance from the petitioner under the provisions of Protection of Women from Domestic Violence Act, 2005. 3. The case of the 1[st] respondent is that the petitioner married the 1[st] respondent on 2.5.2011 at Shiva Temple near North Bus stand, Thrissur, as per the Hindu Religious rites and practices and respondents 2 and 3 are the children born to them out of that wedlock. It is also contended that after the marriage, for one year they lived in a rented house and thereafter, purchased a property and resided there for nearly three years and now the petition schedule property has been purchased by the petitioner and they are residing in the said property. Alleging that the petitioner is now Crl.M.C.2298/2021 4 not looking after the first respondent and trying to evict them, the M.C has been filed. Copy of the M.C has been produced as Annexure-1. 4. Petitioner herein on the other hand, has got a specific contention that he got married on 21.11.2004 with one Archa and has got a daughter out of that wedlock and the 1[st] respondent is a friend of the wife of the petitioner and she resided in the scheduled property on the basis of that friendship for a nominal rent. When the petitioner demanded to take possession of the property, this case alleging false allegations has been filed. So according to him, in order to prove his case, he filed Crl.M.P.375/2020 seeking an order to conduct DNA test for the petitioner and respondents 2 and 3 to prove that he is not the father of respondents 2 and 3. Now the grievance of the petitioner is that without disposing of that petition, the learned Magistrate is proceeding with the trial of the case. 5. Notice was issued to the respondents and respondents 1 to 3 appeared through counsel and 4[th] respondent/State appeared through the learned Public Prosecutor. Both sides were heard. 6. When the case came up for hearing, the learned counsel for the party respondents would submit that respondents have no Crl.M.C.2298/2021 5 objection in allowing Crl.M.P.375/2020 seeking to conduct DNA test of the petitioner and respondents 2 and 3. 7. In **Bhabani Prasad Jena v. Convenor Secretary, Orissa State Commissioner for Women and Another (2010 (8) SCC 633 = 2010 KHC 4528)** the question arose with regard to the powers of the court in directing DNA test. In paragraph 9, _Gautam Kundu v. State of West Bengal and Another (1993 KHC 951 = 1999 (3) SCC 418)_ has been quoted. That was also a case in which husband disputed the paternity of the child and prayed for blood group test of the child to prove that he was not the father of the child. The decisions of English and American Courts and some authoritative texts including the following statement made in Rayden's Law and Practice in Divorce and Family Matters, 1983, Vol.I, p.1054 has been quoted which reads thus : - _“Medical Science is able to analyze the blood of individuals into definite groups; and by examining the blood of a given man and a child to determine whether the man could or could not be the father. Blood tests cannot show positively that any man is father, but they can show positively that a given man could or could not be the father. It is obviously the latter aspect that proves most valuable in determining paternity, that is, the exclusion aspect, for_ Crl.M.C.2298/2021 6 _once it is determined that a man could not be the father, he is thereby automatically excluded from considerations of paternity. When a man is not the father of a child, it has been said that there is at least a 70 per cent chance that if blood tests are taken they will show positively he is not the father, and in some cases the chance is even higher; between two given men who have had sexual intercourse with the mother at the time of conception, both of whom undergo blood tests, it has likewise been said that there is a 90 per cent chance that the tests will show that one of them is not the father with the irresistible inference that the other is the father."_ 8. In **Ashok Kumar v. Raj Gupta (2021 (5) KLT 697 (SC))** was also brought to my attention, Paragraph 11.1 of the said decision is relevant to be quoted which reads thus :- “In circumstances where other evidence is available to prove or dispute the relationship, the court should ordinarily refrain from ordering blood tests. This is because such tests impinge upon the right of privacy of an individual and could also have major societal repercussions. Indian law leans towards legitimacy and frowns upon bastardy. The presumption in law of legitimacy of a child cannot be lightly repelled. This Court, in Kamti Devi v. Poshi Ram (2001 (2) KLT SN 86 (C.No.108) SC = (2001) 5 SCC 311), Crl.M.C.2298/2021 7 while determining the question of standard of proof required to displace the presumption in favour of paternity of child born during subsistence of valid marriage held : _“10. We may remember that S.112 of theEvidence Act was enacted at a time when the modern scientific advancements with deoxyribonucleic acide (DNA) as well as ribonucleic acid (RNA) tests were not even in contemplation of the legislature. The result of a genuine DNA test is said to be scientifically accurate. But even that is not enough to escape from the conclusiveness of S.112 of the Act e.g. if a husband and wife were living together during the time of conception but the DNA test revealed that the child was not born to the husband, the conclusiveness in law would remain irrebuttable. This may look hard from the point of view of the husband who would be compelled to bear the fatherhood of a child of which he may be innocent. But even in such a case the law leans in favour of the innocent child from being bastardized if his mother and her spouse were living together during the time of conception. Hence the question regarding the degree of proof of non-access for rebutting the conclusiveness must be answered in the light of what is meant by acess or non-access as delineated above”._ 9. So the settled position is that when there are other circumstances and evidence available to prove or dispute the relationship court should refrain from ordering blood test. However, in this case the learned counsel for the respondents categorically submits that Crl.M.C.2298/2021 8 respondents have no objection in allowing the prayer of the petitioner to conduct the DNA test. Petitioner also has got a specific contention that he is already married to one Archa in 2004 and has no connection at all with the 1[st] respondent. In the said circumstances, the learned Judicial First Class Magistrate is directed to dispose Crl.M.P.375/2020 filed by the petitioner/respondent in the M.C, before starting the trial of the case, in accordance with law. Crl.M.C disposed of as above. Sd/- M.R.Anitha, Judge Mrcs/27.10. Crl.M.C.2298/2021 9 ## **APPENDIX OF CRL.MC 2298/2021** |ANNEXURE||| |---|---|---| |ANNEXURE|1|A TRUE COPY OF THE PETITION IN M.C. NO.| |||27/2019 ON THE FILE OF JUDICIAL FIRST CLASS| |||MAGISTRATE COURT NO. 1 THRISSUR DATED| |||06.06.2019.| |ANNEXURE|2|A TRUE COPY OF THE APPLICATION IN| |||CRL.M.P.NO. 3277/2019 IN M.C. O. 27/2019 ON| |||THE FILE OF JUDICIAL FIRST CLASS MAGISTRATE| |||COURT NO.1. THRISSUR DATED 06.06.2019.| |ANNEXURE|3|A TRUE COPY OF THE OBJECTION FILED IN M.C| |||NO. 27/2019 ON THE FILE OF JUDICIAL FIRST| |||CLASS MAGISTRATE COURT NO.1, THRISSUR DATED| |||13.11.2019.| |ANNEXURE|4|A TRUE COPY OF THE OBJECTION FIELD IN| |||CRL.MP. NO. 3277/2019 IN M.C. NO. 27/2019 ON| |||THE FILE OF JUDICIAL FIRST CLASS MAGISTRATE| |||COURT NO.1, THRISSUR DATED 15.10.2019.| |ANNEXURE|5|A TRUE COPY OF THE APPLICATION IN CRL.M.P.| |||NO. 375/2020 IN M.C. NO. 27/2019 ON THE FILE| |||OF JUDICIAL FIRST CLASS MAGISTRATE COURT| |||NO.1, THRISSUR DATED 13.01.2020.|