M.C.Thomas vs Sachin on 14 January, 2010

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

RPFC.No. 218 of 2008()


1. M.C.THOMAS, S/O. DEVASYA,
                      ...  Petitioner

                        Vs



1. SACHIN, AGED 10 YEARS, (MINOR)
                       ...       Respondent

                For Petitioner  :SRI.SARVOTHAMAN

                For Respondent  :SRI.JOSE KURIAKOSE (VILANGATTIL)

The Hon'ble MR. Justice M.N.KRISHNAN

 Dated :14/01/2010

 O R D E R
                          M.N.KRISHNAN,J.
                     ======================
                       R.P.(F.C) No.218 OF 2008
                     ======================
                Dated this the 14th day of January 2010.

                             JUDGMENT

This revision is preferred against the order of maintenance

passed by the Family Court, Kalpetta in M.C.No.35/07. Admittedly

the mother of the petitioner is not married to the husband. It is the

case of the mother of the petitioner that with a promise to marry her,

the respondent in the petition had sexual intercourse with her on

account of which she became pregnant and had given birth to the

petitioner and therefore the counter petitioner is in the maintenance

case is the father of the child liable to maintain the child. On the

contra the husband would contend that he had no access or

relationship with the lady and he did not have any sexual act with the

lady and the minor is not born to him through the mother of the

petitioner. Therefore, the whole question depends upon the paternity

of the child. The question of presumption under Section 112 of the

Evidence Act would not be available in this case for the reason that

there must be marriage and there must be subsistence of marriage .

R.P.(F.C) No.218 OF 2008 2

There is a presumption unless non access is proved. In the absence

of any marriage the presumptive provision may not be made use of

to determine the case. Then the best evidence is the scientific

evidence which could be done by conducting a DNA test. The

mother of the boy had expressed her willingness to undergo a DNA

test. So if the revision petitioner also is prepared to undergo the

same, then there must be a scientific finding on the question

whether the revision petitioner is a biological father of the child. For

that an opportunity to enable the revision petitioner also to undergo

DNA test can be given. Therefor order of the Family Court is set

aside and the case is remitted back to the Family Court with a

direction to one of the parties to move application for DNA test and

pass appropriate orders on the same and then direct the parties to

undergo DNA test, So that scientific data can be gathered.

Thereafter parties be permitted to adduce evidence in support of

respective contentions for and against DNA test even, and then

dispose of the matter in accordance with law. Parties are directed to

appear before the Family Court in 22.2.2010.

R.P.(F.C) No.218 OF 2008 3

If possible let the matter to be disposed of within 4 months from

the first appearance of the parties.

M.N.KRISHNAN,JUDGE.

mns