IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 5TH OCTOBER 2010 / 13TH ASWINA 1932 Crl.MC.No. 4054 of 2010() ----------------------- AGAINST THE ORDER DATED 23/07/2010 IN CMP.815/2010 IN MC.265/2010 OF THE FAMILY COURT, MALAPPURAM .................. PETITIONER / RESPONDENT : ----------------------------------------- T.K.RADHAKRISHNAN, AGED 35 YEARS, S/O. KRISHNAN NAIR, TAILOR BY PROFESSION, ANU NIVAS, KALADY, MALAPPURAM DISTRICT. BY ADVS. SRI.C.KHALID SRI.N.GOPINATHA PANICKER SRI. T.P. SAJID RESPONDENTS / PETITIONER : ------------------------------------------- 1. MULAKKANPARAMBATH NISHA, AGED 26 YEARS, D/O. RAMUNNI NAIR, MADHAVAM APARTMENT, SOUTH NADA, GURUVAYOOR-680101. 2. SON ANIRUDH, AGED 6 YEARS, MINOR 3. ANIKETH, AGED 2 YEARS MINOR, REPRESENTED BY THE RESPONDENT NO.1, THE MOTHER OF MINOR PETITIONERS. BY THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 05/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Mn M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.M.C.NO.4054 OF 2010 --------------------------------------------- Dated 5th October, 2010 O R D E R Respondent in M.C.265/2010 on the file of Family Court, Malappuram filed C.M.P.815/2010 to subject the child born to the respondent who is petitioner in the M.C to DNA test to prove that petitioner is not the father of the child. By Annexure-1 order Family Court dismissed the petition. This petition is filed under Section 482 of Code of Criminal Procedure to quash Annexure-1 order contending that on the facts of this case, it is clear that respondent is living away from the petitioner and she had illicit relationship with one Dasan and the child was born not to the petitioner but to that Dasan and DNA test would conclusively establish that fact. CRMC 4054/10 2 Therefore, Family Court was not justified in dismissing the application. 2. Learned counsel appearing for the petitioner was heard. 3. Argument of the learned counsel is that Section 112 of Evidence Act will not a bar on the facts of this case, to subject the child to DNA test as respondent is living with Dasan and respondent has also admitted that fact and in such circumstances, Annexure-1 order is to be quashed. 4. Marital relationship between the petitioner and first respondent still subsists. Child was born during the subsistence of the marriage. Question is whether petitioner is entitled to subject the child to DNA test to prove that he is not the father of the child. 5. Section 112 of Indian Evidence Act provides that, fact that any person was born CRMC 4054/10 3 during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten. In the light of Section 112 of Indian Evidence Act, only defence available to the petitioner to prove that he is not father of the petitioner is the non access during the period when the child was begotten. Hence Annexure-I order is perfectly legal and warrants no interference. Petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.