IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 2ND APRIL 2008 / 13TH CHAITHRA 1930 RP.No. 411 of 2008() -------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.37165/2007 Dated 18/03/2008 .................... REVIEW PETITIONER/PETITIONER: ----------------------------------------------------- MR. IVAN RATHINAM, S/O. RATHINAM PILLAI, ARSAR KADAVIL HOUSE, VADAKKAL P.O., ALAPPUZHA, NOW WORKING AS THE ASST.COMMANDENT OF ARMED RESERVE POLICE CAMP, ALAPPUZHA. BY ADV. SRI.DINESH R.SHENOY SRI.V.V.UNNIKRISHNAN SRIG.GABHILASH RESPONDENTS: ------------------------ 1. MASTER MILAN JOSEPH, A MINOR REPRESENTED BY HIS MOTHER AND NEXT FRIEND SMT.ASHA LAWRENCE, 702, GARDEN GATE APARTMENT, GANDHI NAGAR, COCHIN-20. 2. ASHA LAWRENCE, 702, GARDEN GATE APARTMENT, GANDHI NAGAR, COCHIN-20. BY ADV. SRI. P.K.RAVISANKAR THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 02/04/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss ..2/- ...2.... RP.NO.411/2008 O R D E R I have perused the review petition. I had given reasons for my judgment. It does not call for any interference, as I do not find any error apparent on the face of the record. Hence the review petition is dismissed. 2/04/2008 Sd/- M.N.Krishnan, Judge /True Copy/ P.S.to Judge Kss M.N. KRISHNAN, J ------------------------- R.P.No. 411 OF 2008 in W.P.(C)No. 37165 OF 2007 ------------------------------------------ Dated this the 3rd day of July, 2008 O R D E R This Review Petition is filed to review the judgment of this Court stating that this Court has erred in deciding the question and has not adverted to the correct legal position which according to the review petitioner is an error apparent on the face of the record. The decision reported in AIR 2001 Supreme Court 2226 lays down the correct position. According to the learned counsel it is a mistake committed by the court which requires correction. 2. W.P.(C) 37165/07 is preferred against the order of the First Additional Munsiff Court, Ernakulam who had allowed an application where the plaintiffs in the suit have made a prayer for sending the parties for a DNA test. The said Court by virtue of the decision of the Apex court in Sharda v. Dharmpal 2003(2) KLT 243 R.P.No. 411/2008 in W.P.(C)No. 37165/2007 -2- held that the matrimonial court has the power to order a person to undergo a medical test. Relying upon the very same decision this court also held that it is permissible but the court should exercise such a power if parties have a strong prima facie case and there is sufficient material before the court. This Court also held that presumption under Section 112 cannot be drawn and therefore DNA test has to be allowed. Now the learned counsel for the review petitioner submits that the finding of the court that Section 112 will not apply is incorrect. Section 112 deals with the Birth during marriage, as conclusive proof of legitimacy. As per that Section, the fact that any person during the continuance of a valid marriage between his mother and any man, or within 280 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. The learned counsel for the review petitioner had brought to my notice, the pleadings in the original suit. Admittedly the 1st plaintiff is the son of the 2nd plaintiff. The question is whether the 1st plaintiff is born to the R.P.No. 411/2008 in W.P.(C)No. 37165/2007 -3- 2nd plaintiff through her husband Raju Kurian or it is through the defendant in the suit. In para 2 of the plaint it is averred that from 1996 onwards the 2nd respondent was living separately from board and bed even though her marriage with the aforesaid Raju Kurian was subsisting and she was living with him under the same roof. So it is an admitted fact, there was a valid marriage in subsistence and the husband and wife were living under the same roof. The child was born during that period. Unless the no access by either of the parties is proved, Section 112 gives legitimacy to the child born out in the wedlock. In the decision reported in AIR 2001 Supreme Court 2226 it is stated that ”Section 112 which arises a conclusive presumption about the paternity of the child born during the subsistence of a valid marriage, itself provides an outlet to the party who wants to escape from the rigour of that conclusiveness. The said outlet is, if it can be shown that the parties had no access to each other at the time when the child could have been begotten the presumption could be rebutted.” It is true that 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 Section 112 of R.P.No. 411/2008 in W.P.(C)No. 37165/2007 -4- the Act. For example 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 unrebuttable. The Apex court held that 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. 3. The learned counsel for the respondent in the review petition would contend that it is with respect to a presumption when the mother herself contends that the child is not born to her in her husband and when a petition is filed seeking for referring the parties to the DNA test for establishment of the paternity there is nothing wrong in it. I am afraid that such a decision cannot be taken at the first instance itself for the reason that Section 112 is intended to protect a child who is born out of lawful wedlock during the subsistence of the marriage. It is the paternity of the child that is to be adjudicated in a case of this nature and therefore Section 112 have a direct application to such cases as well. When I R.P.No. 411/2008 in W.P.(C)No. 37165/2007 -5- pronounced in the earlier judgment, these facts were not discussed in detail and as it was argued that the dispute is between a lady and a man who is not the husband of the lady, Section 112 is not attracted and therefore on the basis of that argument this court rendered a decision regarding the same. When the facts are brought out even as pleaded by the plaintiff it is very clear that the child is born during the subsistence of the marriage when the husband and wife were living together under the same roof. Therefore I feel time is not come to refer the case for a DNA test. When the evidence is adduced and the court is convinced that there has been no access as contemplated under Section 112 of the Evidence Act, then certainly the court is at liberty to refer the parties to a DNA test. Otherwise if DNA test is done in advance, as held by the Apex Court in the decision referred to above it cannot have valid force because the presumption under Section 112 is rebuttable only by proving non access. So the judgment passed by me is required to be reviewed and the writ petition is disposed as follows: R.P.No. 411/2008 in W.P.(C)No. 37165/2007 -6- 1) It is made clear that unless the court is satisfied as to the absence of access between the spouses at the relevant point of time, the court shall not refer the parties to a DNA test. 2) If after adducing evidence, the court is convinced to its conscience that 'no access' have been proved then the court is at liberty to refer the parties to DNA test as contemplated under law and also on the basis of the decision of the Apex Court in 2003 (2) KLT 243. Review Petition is allowed and Writ Petition is disposed of as stated above. M.N. KRISHNAN, JUDGE vkm