IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 26TH JUNE 2008 / 5TH ASHADHA 1930 WP(C).No. 11359 of 2008(S) -------------------------- AGAINST THE ORDER DATED 04/02/2008 IN IA.1512/2007 IN OP.784/2006 of FAMILY COURT, NEDUMANGAD .................... PETITIONER: ------------ C.S.PUSHPA BINDHU,D/O.CHERUPUSHPAM, RESIDING AT THEKKUMKARA PUTHEN VEEDU, KOTTAKONAM,KATTACHALKUZHY P.O, BALARAMAPURAM,THIRUVANANTHAPURAM. BY ADV. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE RESPONDENTS: ------------- JOSE K,VAZHAVILA PUTHEN VEEDU, THAMALAM,POOJAPPURA P.O,THIRUVANANTHAPURAM. BY ADV. SRI.G.S.REGHUNATH FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.C.NO.11359/2008 A P P E N D I X PETITIONER'S EXHIBITS : EXT.P1 : TRUE COPY OF I.A.NO.1512/2007 IN O.P.NO.784/2006 FILED BEFORE THE FAMILY COURT, NEDUMANGAD. EXT.P2 : TRUE COPY OF THE OBJECTION TO I.A.NO.1512/2007 FILED BY THE RESPONDENT. EXT.P3 : TRUE COPY OF THE ORDER OF THE FAMILY COURT, NEDUMANGAD DT. 4.2.2008 IN I.A.NO.1512/2007 IN O.P.NO.784/2006. TGS KURIAN JOSEPH & HARUN-UL-RASHID, JJ. ---------------------------------------------- W.P.(C) No.11359 of 2008 ---------------------------------------------- Dated 26th June, 2008. J U D G M E N T Kurian Joseph, J. Ext.P3 order passed by the Family Court, Nedumangad in I.A.1512/2007 in O.P.784/2006 is under challenge. As per the said order, the Family Court dismissed the application filed by the petitioner for conducting DNA test of her child Dhanya, in the background of her dispute regarding paternity. According to the petitioner, though she is duly married to the respondent, Dhanya is born to her in one Mr.Danjit Mohan. In view of the presumption under Section 112 of the Evidence Act, the application was dismissed. We are afraid, the stand taken by the Family Court cannot be justified. Here is a situation where a married woman comes before the court and submits that the father of a child born to her is not the husband, but somebody else. The name of that person is also disclosed. The prayer is for confirmation of her submission regarding paternity. In such circumstances, the Family Court should have allowed the petition. Accordingly, WP(C) NO. 11359/08 2 Ext.P3 order is set aside. I.A.1512/07 in O.P.784/06 on the file of the Family Court, Nedumangad stands allowed. The petitioner along with the child Dhanya and Danjit Mohan shall appear before the Family Court on 14.7.2008 and the Family Court shall pass appropriate orders with regard to the conduct of the DNA test. The test shall be conducted at the expenses of the petitioner. 2. Pursuant to the direction issued by this court, the parties are present before us. Sri.Danjit Mohan submitted before this court that he has been continuing illegal relationship with the petitioner Smt.Pushpa Babu ever since 1999. It is also submitted that during the pendency of such illegal relationship, he had also contracted a valid marriage with Smt.Saima, in the year 2003 and that marriage was dissolved in the year 2006. It is submitted that he has a child born in the petitioner. It is the paternity of that child which is in dispute in the pending Original Petition before the Family Court, Nedumangad. In the process of disposal of the case, we direct the Family Court, Nedumangad to also take into consideration the conduct of Sri.Danjit Mohan and if the court is prima facie of the view that he is involved in any offence, steps WP(C) NO. 11359/08 3 shall also be taken by the said court for initiation of appropriate action against him. KURIAN JOSEPH, JUDGE. HARUN-UL-RASHID, JUDGE. tgs KURIAN JOSEPH & HARUN-UL-RASHID, JJ ---------------------------------------------- W.P.(C) No.11359 of 2008 ---------------------------------------------- J U D G M E N T Dated 26th June, 2008.