IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 19TH JANUARY 2010 / 29TH POUSHA 1931 Crl.Rev.Pet.No. 254 of 2010() ----------------------------- CRA.578/2007 of ADDL. SESSIONS COURT, (ADHOC), PALAKKAD ST.584/2004 of JUDL.MAGISTRATE OF FIRST CLASS COURT, OTTAPPALAM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- M.P.KRISHNANKUTTY, S/O.CHUKRAN, MUNNOONNIPARAMBIL HOUSE, MANGALAM DESOM, LAKKIDI AMSOM, OTTAPALAM TALUK. BY ADV. SRI.P.K.MOHANAN(PALAKKAD) RESPONDENT(S): RESPONDENTS/STATE AND COMPLAINANT: ------------------------------------------------- 1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. C.PADMANABHAN, S/O.VELU, PADMALAYAM CHEROORPA DESOM, KARAKKADU AMSOM, OTTAPPALAM TALUK, PALAKKAD DISTRICT. PUBLIC PROSECUTOR SRI. P.R. JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 19/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= R.P.(F.C) Nos. 254 & 261 of 2010 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 17th day of September, 2012. O R D E R These two revision petitions arise from the judgment of the Family Court, Kozhikode in M.C. No. 95/2008. That M.C was filed by one Smt. Sreeja, the mother of the petitioner in R.P(F.C) No. 261/2010, who is a minor. She filed the M.C claiming maintenance for herself and her minor son Vishnu. After considering the evidence adduced before the Family Court, the Family Court came to the conclusion that Smt. Sreeja was not able to prove with any satisfactory evidence that Sri. Babu, the respondent in the M.C. and in R.P.(F.C) No. 261/2010 and the revision petitioner in R.P.(F.C) No. 254/2010, is his husband. But, on the basis of the D.N.A test conducted at the instance of Smt. Sreeja, it was found that Vishnu is the son of Sri. Babu. On that basis, the Family Court awarded maintenance to Vishnu payable by Sri. Babu at the rate of Rs. 750/- p.m. Sri. Babu has filed R.P.(F.C) No. 254/2010 against the judgment of the Family Court challenging the finding that he is the father of Vishnu. Vishnu, the minor, represented by his mother Smt. Sreeja, has filed R.P.(F.C) No. 261/2010 claiming costs of the proceedings as well as enhancement of the maintenance awarded. 2. The contention of Sri. Babu is that there is no reliable evidence to find that he is the father of Vishnu. He seriously challenges the evidence obtained from the Rejiv Gandhi Centre for Biotechnology, who conduced the D.N.A test and found that Sri. Babu was the father of Vishnu. According to him, the test R.P.(F.C) Nos. 254 & 261 of 2010 -: 2 :- was not conducted properly and no blood sample was taken from him. He submits that there is no reliable evidence on record to prove that Vishnu was his son. 3. Vishnu, the minor represented by his mother, would contend that in cases like this, it was mandatory on the part of the Family Court to consider the question of award of costs and if costs are not awarded, appropriate reasons should be given for not awarding costs. In support of that contention, counsel for the petitioner in R.P (F.C) No. 261/2010 relies on the decision of the Supreme Court in Sanjeev Kumar Jain v. Raghubir Saran Charitable Trust, 2011 (4) KLT 966 (SC). According to the said petitioner, the court below has not given any reason for denying costs. It is further contended that it is an admitted case of even Sri. Babu that he was running a jewellery shop for years together now. That being so, he must be earning a substantial sum per month as income and Rs. 750/- granted as maintenance to the son is palpably insufficient to meet the needs of the son compared to the large income Sri. Babu is earning. 4. I have considered the rival contentions in detail. 5. As far as the contention of Sri. Babu, the father of Vishnu, is concerned, I find very little substance in the same. This is abundantly clear from the relevant portions of the judgment of the Family Court dealing with this aspect. Paragraphs 11 and 12 of the impugned judgment read thus: “11. The next aspect is to be considered is the DNA Report. After remand both parties were sent to Rajiv Gandhi Centre for Biotechnology, Thiruvananthapuram for R.P.(F.C) Nos. 254 & 261 of 2010 -: 3 :- conducting DNA test. Ext. X1 is the DNA Report received from the institute after examining the parties. The finding in Ext.X1 report is that PW1 is the biological mother and RW1 is the biological father of the child named Vishnu, delivered by PW1. RW1 had filed a detailed objection against DNA report. On going through the objections submitted by RW1, it can be seen that it is on the basis of only surmises and conjunctures. There is no basis for his objections. He has also filed another petition to send the parties for conducting DNA test by another institution. However, RW1 has not taken any steps for further examination. In his evidence also he conceded that he is not interested for a second examination by another institution to prove the alleged paternity of the child. RW1 has cited three persons as witnesses from RGCB, Thiruvananthapuram. All of them were present before the court. He has examined only the DNA Examiner and not examined the other two persons summoned from the RGCB, Thiruvananthapuram. Likewise, he has cited the mother of RW1 as a witness in this case. But he never examined. No reason is offered by RW1 for the non- examination of the summoned witnesses from RGCB, Thiruvananthapuram and the mother of RW1. He has examined the DNA examiner as RW3. In further cross- examination, PW1 stated that they have sexual contacts at Wayanad as well. She never made any objection for the sexual contacts with RW1. She gave consent for the same since RW1 promised to marry her. If she had knowledge that RW1 has wife and children she would not have consented for the sexual intercourse with him, according to PW1. She stated that the blood sample of RW1 was taken at first at RGCB, Thiruvananthapuram. Then the samples of the blood of herself and the child were taken. They have also took their thump impressions. They never given blood to any other person in that institution. Their photographs were also taken from the institution. She further stated that PW1 is having other two jewelleries named Revathy jewellery and Chithira jewellery. He is having sufficient income to maintain the child. However, there is no evidence to prove the alleged source of income of RW1. According to RW1, he had attended for DNA Test at Thiruvananthapuram. PW1 and child were also there on that date. His photographs were taken from that institution. His blood sample never taken from there. However, he has no such case that his blood sample has not been taken at RGCB, Thiruvananthapuram, in his objection to X1 report. It is only a development at the time of evidence. His photographs were taken. He stated that he does not know the reason for non-examination of two witness summoned from RGCB, Thiruvananthapuram. He never raised the contention that his blood sample has not been taken for conducting DNA Test. He is not intending R.P.(F.C) Nos. 254 & 261 of 2010 -: 4 :- to take steps for conducting the test again. According to him, the persons who conducted the test having no sufficient qualification and the manner of the test conducted is also not proper. But there is no basis for his said allegations. No reason is stated by him for raising such allegations. He never preferred any complaint before the persons at RGCB, Thiruvananthapuram for submitting DNA report without taking his blood. He is aware that it is illegal to submit a report without taking blood sample. He admitted that Nadakkavu Police has taken another case against him before the alleged incident mentioned in this petition. It was for immoral traffic. He admitted that he has acquaintance with PW1 from 2004 onwards He further stated that name of the father of the child delivered by PW1 shown at Kozhikode Corporation is his name. He never taken any steps to cancel the said aspect. 12. The learned counsel for RW1 has conducted a searching examination on RW3, the DNA examiner. He stated in evidence that samples are usually taken by the laboratory technicians. There are lab technicians in their institution. He further stated that RGCB, Thiruvananthapuram is a Central Government Institution. Dr. Sanil Geoorge and George Thomas are not medical men. He stated that only few drops of blood are necessary for the DNA test. He does not know directly that how much quantity of blood taken and how it is collected from the persons involved in this case. Only the sample is forwarding to him with identification code. The code is giving by a Coding Officer. Group leader is the Coding Officer. He is collecting samples from the Coding Officer. He is the only DNA Examiner in RGCB, Thiruvananthapuram. The above Coding Officer had been summoned by RW1. But, he never examined him. RW3 did not agree that his finding is incorrect due to lack of proper samples and correct techniques. It is incorrect to say that the samples of the blood of RW1 has not been taken in this case. Even though a searching cross-examination has been conducted in this matter, nothing has been brought out to disbelieve the version of RW3. There is no basis for the objection raised by RW1 against the DNA Report. He never taken any steps for conducting further test in another institution. He is not willing for the same. He has also not examined the witnesses summoned from the RGCB, Thiruvananthapuram without assigning any reason. So I find that there is nothing to disbelieve the evidence of RW3 and Ext.X1 report. Therefore, I find that RW1 is the father of the child named Vishnu delivered by PW1 on 24.9.2007. As the father of the said child, RW1 is liable to maintain him. This point is answered accordingly.” R.P.(F.C) Nos. 254 & 261 of 2010 -: 5 :- I am of opinion that Sri. Babu has not brought out any sufficient materials to discredit the evidence regarding the DNA test conducted by the Rajiv Gandhi Centre for Biotechnology to determine the paternity of Vishnu. In fact, he did not examine the witnesses of Rajiv Gandhi Centre for Biotechnology who were present on receipt of summons at his instance. His refusal to examine those witnesses would go a long way in disproving his contention. Therefore, I am eminently satisfied that Vishnu was successful in proving that Sri. Babu is his father, based on the DNA test conducted. That being so, there is sufficient evidence on record to prove that Vishnu is the son of Babu. 6. The next question is regarding the claim of Vishnu for costs and enhancement of the maintenance allowance. It is not even disputed by RW1, Sri. Babu, that he is conducting a jewellery shop. Admittedly, he has been conducting that shop for 13 years. That being so, it cannot be disputed that Sri. Babu must be earning quite a substantial sum as income from the jewellery shop. Compared to the same and taking into account needs of Vishnu, his son, Rs. 750/- p.m. is too megre an amount for his maintenance. Taking into consideration all the above facts, I am of opinion that an amount of Rs. 2000/- would be sufficient to cater to the needs of Vishnu. 7. In view of the decision in Sanjeev Kumar Jain's case (supra), I am of opinion that whenever courts decide cases of this nature, award of costs should be the rule and if costs are not awarded, reasons should be given by the court. The impugned judgment does not give any reason for not awarding costs. Vishnu and his mother do not have any R.P.(F.C) Nos. 254 & 261 of 2010 -: 6 :- source of income. That being so, when they are dragged to the courts for no fault of theirs, they must be adequately compensated by way of costs for the expenses incurred by them for conducting cases before the Family Court as well as this Court. In view of the above findings, these two Criminal R.Ps. are disposed as follows: Criminal R.P. No. 254/2010 is dismissed. In Criminal R.P. No. 261/2010, while confirming the findings of the Family Court that Vishnu is the son of Sri. Babu, I direct Sri. Babu to pay to Vishnu maintenance at the rate of Rs. 2000/- p.m., instead of Rs. 750/- per month, from the date of filing of M.C. No. 95/2008. Vishnu is entitled to costs of the M.C before the Family Court and in the Criminal R.P. before this Court. I quantify the entire costs as a lump sum of Rs. 10,000/-, which shall be paid by Sri. Babu, along with the arrears of maintenance within one month from today. Sd/-S. Siri Jagan, Judge. Tds/ [True copy] P.S to Judge.