IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 6TH FEBRUARY 2009 / 17TH MAGHA 1930 Crl.MC.No. 413 of 2009() ------------------------ MC.563/2008 of .................... PETITIONER(S): --------------- KOPLERI HAMZA, S/O.KUNJU MOHAMMED, PANNIYANCHALIL VEEDU, P.O.PAYYANAD, MANJERI, MALAPPURAM DISTRICT. BY ADV. SRI.P.SHAMSUDIN RESPONDENT(S): --------------- 1. KIZHAKKEPALLIKKAL HASEENA, D/O.KIZHAKKEPALLIKKAL KUNJI POKKER, KIZHAKKEPALLIKKAL VEEDU, NAMBOORIPPOTTI, ERANJIMANGAD, NILAMBUR, MALAPPURAM DISTRICT. 2. JERISA, AGED 15 YEARS, D/O.KOPLERI HAMZA. 3. SIDIRA, AGED 13 YEARS, D/O.HASEENA. 4. MOHAMMED SANATH, AGED 11 YEARS, S/O.HAZEENA, (MINOR RESPONDENTS ARE REPRESENTED BY MOTHER IST RESPONDENT). 5. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR ADV. SRI. GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 06/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J ----------------------- 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 vkm