IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 413 of 2009()
1. KOPLERI HAMZA, S/O.KUNJU MOHAMMED,
... Petitioner
Vs
1. KIZHAKKEPALLIKKAL HASEENA,
... Respondent
2. JERISA, AGED 15 YEARS,
3. SIDIRA, AGED 13 YEARS, D/O.HASEENA.
4. MOHAMMED SANATH, AGED 11 YEARS,
5. STATE OF KERALA, REPRESENTED BY PUBLIC
For Petitioner :SRI.P.SAMSUDIN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :06/02/2009
O R D E R
M.N. KRISHNAN, J
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CRL.M.C.No. 413 OF 2009
---------------------------------
Dated this the 6th day of February, 2009
O R D E R
This petition is filed to direct the Family Court, Malappuram
to allow the prayer in Annexure A5 petition to refer the petitioner
and respondents 1, 3 and 4 to the Rajiv Gandhi Foundation for
Bio Technology, Thiruvananthapuram for conducting DNA test. A
report was called from the Judge, Family Court Malappuram. The
learned Judge has submitted that the question of the application
for DNA test can be considered only when necessity arises and
when non access is proved which will displace the presumption
under Section 112 of the Indian Evidence Act. So here one has
to find out whether there was an access or possibility of an
access and only on determination of the same and making sure
that the presumption under Section 112 may not be available,
the further question has to be probed into. I am not expressing
anything on the merits of the case but I make it clear that the
Family Court shall number and keep the application for sending
persons to DNA test and dispose of it as and when the evidence
Crl.M.C.No. 413/2009
-2-
with respect to the access is completed. The court has to satisfy
its judicial conscience before passing an order.
Crl. M.C. Disposed of accordingly.
M.N.KRISHNAN,JUDGE
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