IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 20TH FEBRUARY 2009 / 1ST PHALGUNA 1930 RPFC.No. 172 of 2004(D) ---------------------- MC.279/1998 of FAMILY COURT, THRISSUR .................... REVISION PETITIONER/COUNTER PETITIONER ---------------------------------------------------------- RAHIM, AGED 34 YEARS, S/O. KADAMAKODE ABDUL RAHIMAN, CHELAKKARA VILLAGE, PATHUKKUDY DESOM, TALAPPILLY TALUK, THRISSUR DISTRICT. BY ADV. SRI.RAJIT RESPONDENT(S): PETITIONERS & STATE ------------------------------------------------- 1. SALMA, AGED 30 YEARS D/O. PATHUKUDYILL ABDUL RAHIMAN, CHELAKKARA VILLAGE, PATHUKKUDY DESOM, THALAPPILLY TALUK, THRISSUR DISTRICT. 2. RAMSHEENA AGED 7 YEARS, D/O. 1ST RESPONDENT CHELAKKARA VILLAGE, PATHUKKUDY DESOM, TALAPPILLY TALUK, THRISSUR DISTRICT (2ND RESPONDENT REPRESENTED BY HER MOTHER & NATURAL GUARDIAN 1ST RESPONDENT) 3. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. ADV. SRI.C.A.CHACKO FOR R1 & R2 THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 20/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = R.P(F.C.) NO. 172 OF 2004 = = = = = = = = = = = = = = = Dated this the 20th day of February, 2009. O R D E R The unfortunate facts and circumstances of this case involves the life of an innocent child with the question who is the father. The mother is one Salma and the father is said to be one Rahim. According to Salma she was in love with Rahim for a period of 4 and ½ years and there had been occasions when he used to take her out to his house and to other places and they lived as husband and wife which ultimately resulted in pregnancy and the birth of a child. 2. On the other hand Mr.Rahim would contend that Salma is a stranger to him and he has no access with her at all and unnecessarily paternity is tried to be fixed on him. The facts and circumstances and the evidence available are the oral evidence of PWs. 1 to 3 and RWs.1 to 3. Ext.A1 is the birth register extract of the child where the name of the mother is shown as Salma and that of the father is Rahim. Exts.B1 to B3 are produced to show that during the period R.P(F.C.) NO. 172 OF 2004 -:2:- 1995-1997 Mr.Rahim was away at Bombay employed at a hotel and so the question of any access did not arise for consideration at all. Ext.B2 is a petition filed before the Forum for Social Justice and Ext.B3 is a copy of the letter of the Mahal where a decision was taken that Mr.Rahim should take an oath. Whether oath was taken or not is not pointed out by records but Rahim would assert that he had taken such an oath. If he had taken such an oath it cannot bind the other party namely Salma. PW1 is the lady Salma and PW3 is her mother. The evidence of PWs.1 to 3 is to the effect that there had been occasional meetings and living together and he has created an impression that he would marry her and it was he who had taken her to the hospital when she was pregnant and it was he who had also joined Salma in giving information regarding the birth of a child. 3. On the contra Rahim would depose that he was not there in the vicinity at all and was away at Bombay and this lady had an immoral connection with another gentleman and she was seen in his company at Coimbatore and now the R.P(F.C.) NO. 172 OF 2004 -:3:- paternity is attempted to be fixed on him. These types of cases are very difficult to decide on the basis of oral evidence. PW2 is a neighbour who speaks about the relationship between Salma and Rahim and the factum that he had seen them together in company. RW2 and RW3 are two witnesses examined to prove what had transpired in the Mahal and that Salma had connection with another man and she was seen at Coimbatore. It is a well settled principle that men may lie but circumstances will never lie and in the case of fixing of paternity of a child it is desirable to have some evidence which satisfies the conscience of the Court regarding the truth. I am conscious that in an Indian society no lady would come forward claiming that somebody other than a real person would be projected as the father of her child. But society is fast changing and when scientific methods of resolution of disputes are possible it can be considered as an acid test for final determination of the paternity of a child. It is always desirable that such a method is resorted to in cases of this nature. Admittedly this R.P(F.C.) NO. 172 OF 2004 -:4:- is a case where there is no marriage and therefore the question of presumption u/s 112 of the Evidence Act cannot apply and the evidence regarding non-access will not loom large to rebut that presumption but positive evidence is necessary in such types of cases to prove the access to establish the case. Steps could have been taken in this manner for the reason that the delivery has taken effect in a hospital and suppose Rahim had admitted Salma there would have been some paper there and so also if he had applied for registering the birth of the child there would have been some application filed by him along with PW1 regarding the same. But unfortunately nothing is available before us. So I feel the best course is to direct the concerned parties to undergo a DNA test which will certainly prove scientifically regarding the paternity of the child. As admitted by Mr.Rahim she is in a very poor financial circumstance and she cannot afford to pay any amount for the same. Considering the plight of the poor child I direct Mr.Rahim to incur the expenses for the DNA Test as well as the travelling expenses and the Court R.P(F.C.) NO. 172 OF 2004 -:5:- can direct the parties after their appearance before the Court below to undergo DNA test with a further direction to Rahim to pay the amount for the same along with the travelling expenses of Salma and her child. Thereafter if any evidence is necessary the parties may be permitted to adduce the same and the matter be disposed of in accordance with law. Therefore the order under challenge is set aside and the matter is remitted back to the Family Court, Thrissur for fresh consideration in accordance with the directions given above. Parties are directed to appear before the Family Court on 24.3.2009. M.N. KRISHNAN, JUDGE. ul/-