IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 11TH FEBRUARY 2010 / 22ND MAGHA 1931 WP(C).No. 1333 of 2009(S) ------------------------------------ MC.479/2006 of FAMILY COURT, PALAKKAD .................... PETITIONER(S): ---------------------- A.V.SIVAN, S/O KALYANI,ALAKKAL VEEDU, THENUR,THENUR AMSOM DESOM,PALAKKAD TALUK. BY ADV. SRI.P.SANJAY SRI.A.PARVATHI MENON SRI.K.N.CHATHUKUTTY RESPONDENT(S): ------------------------ 1. K.BINDU, 22 YEARS,D/O.PONNU, KALARIPPARAMBU VEEDU, AMBALAPPARA AMSOM DESOM, OTTAPPALAM TALUK. 2. ASWIN RAJ, MINOR, 1 YEAR,S/O K.BINDU. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ------------------------------------------------------ W.P.(C) No.1333 of 2009-S ---------------------------------------------- Dated, this the 11th day of February, 2010 J U D G M E N T K.M.Joseph, J. Petitioner challenges Ext.P6 order of the Family Court, Palakkad. Ext.P6 is dated 1.10.2007. Petitioner herein is the petitioner in C.M.P.No.1692/2007 and the respondent in M.C.No.479/2006 on the file of the Family Court, Palakkad. He is the husband of the Ist respondent. Petitioner married the Ist respondent on 26.5.2002. The 2nd respondent was born on 7.2.2003. The case of the petitioner in short is that the Ist respondent had a child even before their marriage in some illicit relationship. Accordingly, petitioner filed O.P.No.500/2006 to declare the marriage null and void. That O.P was dismissed for default. Thereafter, petitioner filed an application for restoration of the said O.P. Petitioner had filed Ext.P1 application to conduct a DNA test to prove his contention that he is not the biological father of the 2nd respondent. The Ist respondent filed counter to the said application. Thereafter, the petitioner filed Ext.P3 application WPC 1333/2009 -2- seeking a change in the order directing conduct of the DNA test at Trivandrum to be shifted to Hyderabad. But, by then the DNA test conducted at the Rajiv Gandhi Centre for Bio- Technology, Trivandrum had been obtained. Again, the petitioner sought re-test by the Central Laboratory, Hyderabad. Petitioner filed Ext.P5 objections to the report of the Rajiv Gandhi Centre for Bio-Technology, Trivandrum. The complaint of the petitioner is that the Family Court, without taking into consideration Ext.P5 objections dismissed Ext.P4 application wherein a re-test was sought. 2. Petitioner sought to change the order dated 1.10.2007 by filing a writ petition on 12.1.2009. In the impugned order the Court has stated two reasons for not allowing the petition. In the first place, it is stated that as the marriage is admitted there is a conclusive proof of legitimacy of the child unless rebutted by evidence proving non-access. Secondly, it is stated that there is already a report and the objections filed against the said report is cryptic. 3. We went through the objections. In Ext.P5 objection it is stated that the report is totally baseless and WPC 1333/2009 -3- the expert has not conducted proper test for arriving into the finding. Amp f/STR system is not so far recognised as a foolproof system. Data provided for arriving into the conclusion is incomplete. It appears that the expert was making some finding without proper analysis and tests. Hence the report is liable o be set aside. We do not think that the petitioner has made out a case on the objection filed to interfere with the order in the extraordinary jurisdiction available under Article 226. The writ petition fails, and it is dismissed. (K.M.JOSEPH) JUDGE. (M.L.JOSEPH FRANCIS) JUDGE. MS