Madeswari vs K. Manickam
2022 Latest Caselaw 8159 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
         THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
    FRIDAY, THE 1ST DAY OF JULY 2022 / 10TH ASHADHA, 1944
                     OP(CRL.) NO. 305 OF 2022
 C.M.P.No.2100/2022 in MC 34/2020 ON THE FILE OF THE JUDICIAL
         MAGISTRATE OF FIRST CLASS, CHITTUR, PALAKKAD
PETITIONER/PETITIONER:

            MADESWARI
            AGED 62 YEARS
            WIFE OF MANICKAM,
            THOTTICHIPALAM HOUSE, PLACHIMADA,
            KANNIMARI P.O., CHITTUR TALUK,
            PALAKKAD DISTRICT, PIN - 678534.

            BY ADVS.
            SARATH M.S.
            B.PREMNATH (E)


RESPONDENT/RESPONDENT:

            K.MANICKAM
            AGED 66 YEARS
            SON OF KULANTHAIVEL MUDALIYAR,
            RESIDING AT AMBAL KRIPA ILLAM, RAM NAGAR,
            COIMBATORE, TAMILNADU-641 009,
            ( SHOWN IN THE M.C. AS MANIKKAM,
            SON OF KALANTHAVEL MUTHALIYAR, 555,
            OPPANAKARA STREET, COIMBATORE, TAMIL NADU,
            RESIDING AT AMBAL KRIPA, ILLAM, RAM NAGAR,
            COIMBATORE, TAMIL NADU, PIN - 641009.
            BY ADVS.
            Santhosh Mathew
            ARUN THOMAS
            ANIL SEBASTIAN PULICKEL
            VEENA RAVEENDRAN
            KARTHIKA MARIA
            SANITA SABU VARGHESE
            NANDA SANAL
            KURIAN ANTONY MATHEW
            MANASA BENNY GEORGE

     THIS    OP   (CRIMINAL)   HAVING    COME   UP   FOR   ADMISSION   ON
01.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 O.P.(Crl.)No.305 of 2022


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                            JUDGMENT

Ext.P6 order passed by the Judicial First Class Magistrate,

Chittur in a proceeding under the Domestic Violence Act (for

short 'the D.V.Act') is under challenge.

2. The petitioner herein filed M.C.No.34/2020 against

the respondent under Section 12 of the D.V. Act claiming

various reliefs. The petitioner is aged 61 years and the

respondent is aged 67 years. According to the petitioner, she

is the legally wedded wife of the respondent. It is alleged that

her first husband (Rajendran) deserted her in the year 1980

and thereafter, she married the respondent on 10.12.1981. It

is alleged that a son is born in the wedlock between the

petitioner and the respondent and now the son has attained

the age of 35 years. However, the respondent disputes the

paternity of the son.

3. In the counter statement filed by the respondent

before the learned Magistrate, he has disputed the marriage as

well as the domestic relationship. A contention was raised

that, since there is no domestic relationship between the O.P.(Crl.)No.305 of 2022

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petitioner and the respondent, the petitioner is not an

aggrieved person as defined under Section 2(d) of the D.V. Act

and hence the petition under the D.V. Act is not maintainable

before the court below.

4. The petitioner filed C.M.P.No.2100/2022 at the court

below to conduct the DNA test of the son of the petitioner.

Presumably it has been filed to prove the domestic relationship

between the petitioner and the respondent. The court below,

after hearing both sides, dismissed the said petition as per

Ext.P6 order. The said order is under challenge in this O.P.

(Crl.).

5. I have heard Sri.Sarath.M.S., the learned counsel for

the petitioner and Sri.Santhosh Mathew, the learned counsel

for the respondent.

6. The learned counsel for the petitioner submitted

that conduct of the DNA test is absolutely necessary to prove

the case of the petitioner and her son is ready to undergo the

test and, as such, the court below ought to have granted the

prayer sought for.

O.P.(Crl.)No.305 of 2022

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7. Per contra, the learned counsel for the respondent

submitted that the paternity or legitimacy of the son is not an

issue to be decided in the D.V. proceedings pending before the

court and hence the court below was absolutely justified in

rejecting the prayer.

8. Ext.P1 is the copy of the petition in M.C.No.34/2020

on the file of the Judicial First Class Magistrate Court, Chittur.

The reliefs sought are for protection order and monetary relief.

Absolutely no relief has been sought in respect of the son of

the petitioner. What is to be proved to maintain an application

under the D.V.Act is that the petitioner is an aggrieved person

and that there is domestic relationship between the petitioner

and the respondent. The petitioner herein alleges that she is

the legally wedded wife of the respondent and they have

resided together as husband and wife in the shared household.

It is up to the petitioner to substantiate the same by adducing

necessary evidence. Even if the DNA test is conducted and

paternity is proved, that would not help the petitioner to prove

the so-called marriage or domestic relationship. No doubt, in

appropriate case, the court can order DNA test. However, it is O.P.(Crl.)No.305 of 2022

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settled that, strong prima facie case is to be made out to

compel a person to undergo DNA test and the DNA test must

be relevant to decide the fact in issue in a particular case. As

stated already, the paternity or legitimacy of the son is not at

all a fact in issue in the proceedings initiated by the petitioner

against the respondent at the court below. The marriage as

well as the domestic relationship can be proved by adducing

other piece of evidence.

9. Even though the learned counsel for the petitioner

submitted that the petitioner's son is prepared to undergo DNA

test, the son of the petitioner is not before us. That apart, the

respondent is not willing to undergo DNA test. Without

sufficient reason, no court can compel the respondent to

undergo DNA test. The learned counsel for the respondent

also brought to my notice that in an earlier round of litigation

between the petitioner, the respondent and the son of the

petitioner, the son admitted that the respondent herein is not

his father and a joint compromise petition was filed to that

effect.

O.P.(Crl.)No.305 of 2022

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For the reasons stated above, I am of the view that the

court below was absolutely justified in rejecting the prayer of

the petitioner to conduct DNA test. The O.P.(Crl.) is dismissed.

Sd/-

DR.KAUSER EDAPPAGATH, JUDGE skj O.P.(Crl.)No.305 of 2022

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APPENDIX OF OP(CRL.) 305/2022

PETITIONER'S EXHIBITS Exhibit P1 TRUE COPY OF THE M.C. NO.34/2020 DATED NIL ON THE FILE OF JUDICIAL FIRST CLASS MAGISTRATE COURT CHITTUR, PALAKKAD FILED BY THE PETITIONER Exhibit P2 TRUE COPY OF THE COUNTER IN M.C.

NO.34/2020 ON THE FILE OF JUDICIAL FIRST CLASS MAGISTRATE COURT CHITTUR, PALAKKAD DATED 25.5.2022 FILED BY THE RESPONDENT Exhibit P3 TRUE COPY OF THE JUDGMENT DATED 28/3/2022 IN O.P. (CRIMINAL) NO.

162/2021 OF THIS COURT Exhibit P4 TRUE COPY OF THE C.M.P. NO.2100/2022 DATED 4/6/2022 IN M.C. NO.34/2020 ON THE FILE OF JUDICIAL FIRST CLASS MAGISTRATE COURT CHITTUR, PALAKKAD Exhibit P5 TRUE COPY OF THE COUNTER FILED TO THE C.M.P. NO.2100/2022 DATED 4.6.2022 Exhibit P6 TRUE COPY OF THE ORDER OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT CHITTUR, PALAKKAD IN C.M.P. NO.2100/2022 IN M.C. NO.34/2020 DATED 14/6/2022 Exhibit P7 TRUE COPY OF THE I.A. NO.2/2022 IN O.P. NO.281/2013 ON THE FILE OF FAMILY COURT, PALAKKAD DATED 17.1.2022 Exhibit P8 TRUE COPY OF THE I.A. NO.1/2022 IN O.P. NO.281/2013 ON THE FILE OF FAMILY COURT, PALAKKAD DATED 17.1.2022