Kerala High Court
Sujith Kumar S vs Vinaya V S on 18 September, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
MONDAY, THE 18TH DAY OF SEPTEMBER 2023 / 27TH BHADRA, 1945
OP(CRL.) NO. 631 OF 2023
AGAINST THE ORDER IN CRL.M.APPL NO.307/2022 IN
MC 35/2023 OF FAMILY COURT, PARAVOOR
PETITIONER/PETITIONER/RESPONDENT:
SUJITH KUMAR S
AGED 49 YEARS,
S/O. SUNDARESAN PILLAI,
S.V. COTTAGE, PARAVUR PO,
KOLLAM, PIN - 691301.
BY ADV I.S.LAILA
RESPONDENTS/RESPONDENTS/PETITIONERS:
1 VINAYA V S,
AGED 40 YEARS,
D/O. VASAVANASHAN, THOTTATHUVILA VEEDU,
KOTTAPPURAM, PARAVUR, KOLLAM, PIN - 691 301.
2 VIVEK,
AGED 17 YEARS,
S/O. VINAYA V.S.,
THOTTATHUVILA VEEDU,
KOTTAPPURAM, PARAVUR,
KOLLAM., PIN - 691 301.
THIS OP (CRIMINAL) HAVING BEEN FINALLY HEARD ON
22.08.2023, THE COURT ON 18.09.2023 DELIVERED THE FOLLOWING:
O.P(Crl.) No.631/2023 2
"C.R"
A. BADHARUDEEN, J.
================================
O.P(Crl).No.631 of 2023
================================
Dated this the 18th day of September, 2023
JUDGMENT
This Original Petition has been filed challenging order in
Crl.M.Appl.No.307/2022 in M.C.No.35/2023 on the files of the
Family Court, Paravoor.
2. Heard the learned counsel for the petitioner on
admission. Notice to the other side stands dispensed with.
The averments in CMP.No.774/2019 is as under:
The petitioner in the above C.M.P, who is the petitioner
herein, raised a contention before the Family Court that he married
the 1st respondent herein on 14.07.2004 and the 1st responndent is a
person suffering from mental disease and, therefore, he had no
occasion to have sexual intercourse with the 1 st respondent.
According to the petitioner, the petitioner was abroad for years
after the marriage and the petitioner brought the 1st respondent
abroad twice. Thereafter the 1st respondent left the company of the
petitioner due to mental problem. As such the paternity of the
petitioner is doubtful. Therefore, the petitioner sought DNA test to
find out the paternity of the 2nd respondent, who is the minor child.
3. The 1st respondent filed detailed objection mainly
contending that the marriage between the petitioner and the 1 st
respondent was solemnised on 17.04.2004 before the Mahadevar
Temple, Puthiyadom, Paravoor and in the said wedlock, the 2 nd
minor child was born on 21.02.2006. It was also contended that in
between 12.02.2005 and 12.05.2005, the 1st respondent along with
the petitioner resided in Oman and the 2 nd respondent minor child
was born during the said period. The petition was filed to deny
payment of maintenance without denying the paternity and,
therefore, the petition filed as an experimental measure is liable to
be dismissed.
4. The learned Family Court Judge considered the rival
contentions and dismissed the application as per Ext.P6 order,
finding that the petitioner herein had no case that he did not have
any access with the 1st respondent at the begotten time, in a case,
where Section 112 of the Evidence Act would apply. It was also
observed by the learned Family Court Judge that earlier also, the
petitioner filed a similar application seeking the relief to conduct
DNA test and thereafter the petitioner/1st respondent resumed joint
residence and accordingly the said petition was withdrawn. It is
also noted by the Family Court that in the objection filed in the
main petition the only contention raised by the petitioner herein
was that he had suspicion with respect to the paternity and he did
not have a consistent case denying the paternity of the child.
Therefore, it was found by the Family Court that DNA test to rebut
the conclusive presumption available under Section 112 of the
Evidence Act could be available only in compelling circumstances
and the same is not a device to clear suspicion, regarding paternity.
5. The learned counsel for the petitioner reiterated the
contention raised before the Family Court and pressed for the
necessity of DNA test. But the learned counsel failed to
substantiate an outright denied of paternity.
6. Thus the question to be considered is; whether DNA test
can be pressed into, in order to clear a suspicion regarding the
paternity of the child, when there is no specific denial of paternity?
7. In this connection, it is relevant to refer Section 112 of
the Indian Evidence Act, 1972, which provides that any person was
born during the continuance of a valid marriage between his
mother and any man, or within two hundred and eighty days after
its dissolution, the mother remaining unmarried, shall be
conclusive proof that he is the legitimate son of that man, unless it
can be shown that the parties to the marriage had no access to
each other at any time when he could have been begotten. In fact,
DNA test is intended to rebut the `conclusive proof' provided under
Section 112 of the Evidence Act.
8. While taking the legal sanctity of DNA test, in a latest
decision reported in [2023 KHC 6155 : 2023 (2) KLT 101 : 2023
(1) KLJ 876 : 2023 SCC OnLine SC 161], Aparna Ajinkya
Firodia v. Ajinkya Arun Firodia, the Apex Court considered the
circumstances under which DNA test of a minor child may be
directed to be concluded and held as under:
"i. That a DNA test of a minor child is not to be ordered routinely,
in matrimonial disputes. Proof by way of DNA profiling is to be directed in
matrimonial disputes involving allegations of infidelity, only in matters
where there is no other mode of proving such assertions.
ii. DNA tests of children born during the subsistence of a valid
marriage may be directed, only when there is sufficient prima facie material
to dislodge the presumption under S.112 of the Evidence Act. Further, if no
plea has been raised as to non-access, in order to rebut the presumption
under S.112 of the Evidence Act, a DNA test may not be directed.
iii. A Court would not be justified in mechanically directing a
DNA test of a child, in a case where the paternity of a child is not directly
in issue, but is merely collateral to the proceedings.
iv. Merely because either of the parties have disputed a factum
of paternity, it does not mean that the Court should direct DNA test or such
other test to resolve the controversy. The parties should be directed to lead
evidence to prove or disprove the factum of paternity and only if the Court
finds it impossible to draw an inference based on such evidence, or the
controversy in issue cannot be resolved without DNA test, it may direct
DNA test and not otherwise. In other words, only in exceptional and
deserving cases, where such a test becomes indispensable to resolve the
controversy the Court can direct such test.
v. While directing DNA tests as a means to prove adultery, the
Court is to be mindful of the consequences thereof on the children born out
of adultery, including inheritance-related consequences, social stigma, etc.
(Para 12)
Family Courts Act, 1984 - S.7 - DNA test - When Court should
exercise power to order DNA test - Only in exceptional and deserving
cases, where such a test becomes indispensable to resolve the controversy,
Court can direct such test - Further, a direction to conduct DNA test of a
child, is to be ordered even rarely, in cases where the paternity of a child is
not directly in issue but is merely collateral to the proceeding.
Held: With the advancement of science, DNA profiling technology
which is a tool of forensic science can, in case of disputed paternity of a
child by mere comparison of DNA obtained from the body fluid or body
tissues of the child with his parents, offer infallible evidence of biological
parentage. But, it is not always necessary to conduct a DNA test to
ascertain whether a particular child was born to a particular person,
however, the burden of proof is on the husband who alleges illegitimacy.
He has to establish the fact that he has not fathered the child born to his
wife which is a negative plea by positive proof in accordance with S.112 of
the Evidence Act. A Family Court, no doubt, has the power to direct a
person to undergo medical tests, including a DNA test and such an order
would not be in violation of the right to personal liberty under Art.21 of
the Constitution, vide Sharda. However, the Court should exercise such
power only when it is expedient in the interest of justice to do so, and
when the fact situation in a given case warrants such an exercise. Thus,
an order directing that a minor child be subjected to DNA test should not
be passed mechanically in each and every case. The reasons for the
parent's refusal may be several, and hence, it is not prudent to draw an
adverse inference under S.114 of the Evidence Act, in every case where a
parent refuses to subject the child to a DNA test. Therefore, it is necessary
that only in exceptional and deserving cases, where such a test becomes
indispensable to resolve the controversy, the Court can direct such test.
Further, a direction to conduct DNA test of a child, is to be ordered even
rarely, in cases where the paternity of a child is not directly in issue but is
merely collateral to the proceeding, such as in the instant case."
9. In the decision reported in [(2019) 4 SCC 771], Pattu
Rajan v. State of Tamil Nadu, the Apex Court considered the
evidentiary value insofar as expert opinion under Section 45 of the
Evidence Act, 1872 is concerned and held that it cannot be
forgotten that opinion evidence is advisory in nature and the court
is not bound by the evidence of the experts. It has been held
further that it is the duty of an expert witness to assist the court
effectively by furnishing the relevant report based on his expertise
along with his reasons, so that the court may form its independent
judgment by assessing such materials and reasons furnished by
expert for coming to an appropriate conclusion. Thus the law
emerges is that merely because parties have dispute about paternity,
it does not mean that the court should direct DNA or such other test
to resolve the controversy. In such circumstances, the parties
should be directed to lead evidence to prove the dispute of factum
of paternity and only when the court finds it impossible to draw an
inference based on such an evidence or the controversy in issue
cannot be resolved without DNA test, it may direct the DNA test
and not otherwise. To put it differently, only in rare and
exceptional cases of deserving nature, DNA test or any other
scientific test become indispensable to resolve the controversy.
10. It has to be held further that when DNA test cannot be
resorted to clear a suspicion regarding the paternity of the child, in
the absence of specific denial of paternity of the child.
11. In view of the above legal position, the dismissal of the
application put in by the petitioner to conduct DNA test with a
view to clear his suspicion/doubt regarding the paternity of the
child, can only be justified. As a sequel thereto, this petition
deserves no merits and is liable to be dismissed.
In the result, this Original Petition stands dismissed.
Sd/-
(A. BADHARUDEEN, JUDGE)
rtr/
APPENDIX OF OP(CRL.) 631/2023
PETITIONER'S EXHIBITS
Exhibit P1 TRUE COPY OF THE MAINTENANCE PETITION
FILED BY THE RESPONDENTS BEFORE THE
FAMILY COURT, KOLLAM AS M.C. NO.
268/2019 DATED 18/7/2019.
Exhibit P2 TRUE COPY & TYPED COPY OF THE PETITION
BEARING CRL. MP NO. 774/2019 IN M.C.
NO.35 OF 2023 PENDING BEFORE THE
(M.C.NO.268/2019 ON THE FILES OF THE
FAMILY COURT, KOLLAM).
Exhibit P3 A TRUE COPY OF THE CRL.M.P. NO. 307/2022
FILED BY THE PETITIONER IN M.C. NO.
35/2023.
Exhibit P4 TRUE COPY OF THE OBJECTION DATED
5/1/2023 FILED BY THE PETITIONER IN EXT.
P1 MAINTENANCE PETITION.
Exhibit P5 TRUE COPY OF THE OBJECTION IN CRL.M.P.
NO. 307/2022 IN M.C. NO. 35/2023.
Exhibit P6 TRUE COPY OF THE ORDER DATED 14/6/2023
IN CRL.M.P. NO. 307/2022 IN M.C. NO.
35/2023 ON THE FILES OF THE FAMILY
COURT, SOUTH PARAVUR.
Exhibit P 7 TRUE COPY OF THE ORDER IN CRL MP
NO.774/2019 IN M.C. NO.35/2023 (FORMER
NO.M.C.NO. 268/2019, FAMILY COURT
KOLLAM) DATED 19-06-2023 ON THE FILES OF
THE FAMILY COURT, PARAVUR IS PRODUCED
HEREWITH
