IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 26TH JUNE 2009 / 5TH ASHADHA 1931 WP(C).No. 17894 of 2009(R) -------------------------- MC.77/2007 of FAMILY COURT,TRIVANDRUM .................... PETITIONER: ------------- NOBIN VARGHESE,AGED 30 YEARS, CHIRAYIL VEEDU,CHENGANKARI,EDATHUA,ALAPPUZHA(REP. BY POWER OF ATTORNEY HOLDER)P.J.VARGHESE,CHIRAYIL VEEDU,CHENGANKARI,EDATHUA,ALAPPUZHA. BY ADV. SRI.K.HARILAL SRI.R.GOPAN RESPONDENTS: ---------------- 1. VASANTHA KUMARI.S,KARUNYA NILAYAM, ARAYOOR.PO,AMARA VILA,THIRUVANANTHAPURAM. 2. BIBIN.V.N,KARUNYA NILAYAM,ARAYOOR.PO, AMARA VILA,THIRUVANANTHAPURAM.(REP.BY VASANTHAKUMARI)KARUNYA NILAYAM,ARAYOOR.PO, AMARA VILA,THIRUVANANTHAPURAM. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C. HARI RANI,JJ ============================== W.P.(C)NO. 17894 OF 2009 ============================ DATED THIS THE 26TH DAY OF JUNE 2009 JUDGMENT Basant,J. There is a dispute between the parties to the writ petition about the paternity of the second respondent. It is the case of the first respondent that while she was away in Kuwait, she was sexually assaulted and in such relationship with the petitioner herein the child 2nd respondent was born. The petitioner offered earlier before the Embassy authorities that he is willing to undergo the DNA test to avoid any controversy. It is submitted that earlier he had offered before the Embassy at Kuwait that he shall undergo the necessary medical test though not specific admission was made that the DNA test can be conducted. But later when the first respondent staked her claim under Section 125 Cr.P.C.for maintenance and requested that the DNA test may be conducted, the petitioner developed cold-feet and opposed the WPC.17894/2009 -2- said prayer. By the impugned order, the learned Judge of the Family Court directed that DNA test be conducted. 2. Against the impugned order granting the prayer for the conduct of the DNA test, the petitioner has now come before this Court. The short prayer is that the extra ordinary constitutional jurisdiction under Article 227 may be invoked to prevent such test being conducted. The short question now is whether the extra ordinary constitutional jurisdiction deserves to be invoked or not. This is not a dispute between the spouses and undue importance cannot at this stage be given to the presumption under Section 112 of the Evidence Act. Even according to the mother of the child, the conception was not through the father and conception was at that time when she was taken to Kuwait with an offer for an employment. In these circumstances, we are satisfied that the provision of Section 112 of the Evidence Act need not deter the court from approving the course adopted by the Family Court of getting vital material available in the form of DNA test. 3. We do not intend to express any opinion on merits, but suffice it to say that we are not persuaded to invoke the extra WPC.17894/2009 -3- ordinary constitutional jurisdiction under Article 227 of the Constitution of India to interfere with the impugned order. 4. This writ petition is accordingly dismissed. Needless to say, even after the test results are obtained the petitioner shall be entitled to urge all his contentions before the Family Court. R. BASANT, JUDGE M.C. HARI RANI,JUDGE ks.