IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 18TH MARCH 2008 / 28TH PHALGUNA 1929 WP(C).No. 37165 of 2007(Y) -------------------------- OS.425/2007 of I ADDL.M.C.,ERNAKULAM .................... PETITIONER: ------------ MR.IVAN RATHINAM,S/O.RATHINAM PILLAI, ARSAR KADAVIL HOUSE,VADAKKAL P.O,ALAPPUZHA, NOW WORKING AS THE ASST.COMMANDANT 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 WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO 37165/07 APPENDIX PETITIONER'S EXHIBITS: EXT.P1. COPY OF THE ORDER DT. 3.11.07 IN IA 8398/07 IN OS 425/07 MUNSIFF COURT, ERNAKULAM EXT.P2. COPY OF THE BIRTH CERTIFICATE ISSUED BY THE CORPORATION OF COCHIN WITH REGARD TO THE 1ST RESPONDENT EXT.P3. COPY OF THE PLAINT FILED IN OS 425/07, MUNSIFF COURT, ERNAKULAM EXT.P4. COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER HEREIN IN OS 425/07, MUNSIFF COURT, ERNAKULAM EXT.P5. COPY OF IA 8398/07 IN OS 425/07, MUNSIFF COURT, ERNAKULAM EXT.P6. COPY OF THE COUNTER AFFIDAVIT FILED BY THE DEFENDANT/ PETITIONER HEREIN IN IA 8398/07 IN OS 425/07, MUNSIFF COURT, ERNAKULAM /TRUE COPY/ PA TO JUDGE. M.N.KRISHNAN, J. -------------------------- W.P.(C). NO. 37165 OF 2007 --------------------- Dated this the 18th day of March, 2008 JUDGMENT This writ petition is preferred against the order of the First Addl. Munsiff, Ernakulam, whereby he has directed the respondent therein to undergo the DNA test. It is under challenge in this writ petition. 2. This position is very well settled by the decision of the Apex court in Sharada v. Dharmpal [2003 (2) KLT 243) (SC) whereby the Supreme court has held that (i) the matrimonial court has the power to order a person to undergo medical test (ii) passing of such an order by the court would not be in violation of the right to personal liberty under Art. 21 of the Indian constitution (iii) however the court should exercise such a power if the applicant has a strong prima facie case and there is sufficient material before the court. If despite the order of the court, the respondent refuses to submit himself to medical examination, the court will be entitled to draw adverse inference against the order.” 3. Admittedly there is no marital relationship between the two petitioners in the IA and the respondent. So the court held that presumption under Sec. 112 cannot be drawn and therefore allowed WPC NO 37165/07 2 the DNA test. The Apex court has made it very clear that the court should be satisfied that there is a strong prima facie case and there is sufficient material before the court. This aspect has not been discussed or seen to be considered by the court below. Since it affects the right of a person, the Apex court has held that it is necessary for the court to consider that point as well before ordering the test. 4. Therefore I set aside the order of the court below and direct the court below to consider the matter in the light of the above discussions and pass appropriate orders after hearing both sides, at any rate, before the court closes for summer holidays. Both parties are permitted to produce materials before the court for consideration of their respective contentions. The writ petition is disposed of accordingly. M.N.KRISHNAN, JUDGE vps WPC NO 37165/07 3 WPC NO 37165/07 4 WPC NO 37165/07 5