IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 2ND JULY 2008 / 11TH ASHADHA 1930 Crl.MC.No. 2477 of 2008() ------------------------- AGAINST THE ORDER DATED / / IN MC.229/2006 IN CRMP.332/2008 OF THE FAMIOY COURT, KASARAGOD. .................... PETITIONER: ------------ C.A. MOHAMMEDMUSTHAFA, AGED 32 YEARS, S/O. S.M. AHMED, PUTHIYAVALAPIL (H), CHANDRAGIRI, KASARAGODE, REP. BY POWER OF ATTORNEY HOLDER, C.A. ABDULLA, AGED 28 YEARS, S/O. S.M. AHMED, PUTHIYAVALAPIL (H), CHANDRAGIRI, KASARAGODE. BY ADV. SRI.C.KHALID RESPONDENTS: ------------- 1. K.M. AYISHA, AGED 28 YEARS, D/O. HASSAINAR, CHATTANGAYIL, CHANDRAGIRI, KASARAGOD. 2. MUFAISA, AGED 9 YEARS, D/O. AYISHA. 3. ABDUL RAHIMAN BASIT, AGED 5 YEARS, S/O. AYISHA, THE RESPONDENTS NO.2 & 3 BEING MINORS REPRESENTED BY MOTHER AYISHA. 4. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, COCHIN-31. BY P.P. SRI. AMJAD ALI. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 02/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- Crl.M.C. No. 2477 of 2008 ------------------------------------------------- Dated this the 2nd day of July, 2008 ORDER Against the petitioner, a claim under Sec.125 of the Cr.P.C. has been staked by the claimants. The 1st claimant was admittedly married by the petitioner. The 2nd and 3rd claimants were admittedly born after such marriage. The petitioner appears to have raised a contention, not serious it appears to me, that he is not the father of the 2nd petitioner. When was that 2nd petitioner born? If he is born after marriage, the presumption under Sec.112 of the Evidence Act must certainly apply. If he had any doubt about the paternity of the first child, how is it they continue to reside together and the 2nd child was born? These questions are not answered clearly at the Bar. It is submitted that after the birth of the 2nd child, the 1st claimant/wife was divorced. The date of the Crl.M.C. No. 2477 of 2008 -: 2 :- divorce is also not made clear to the court now. 2. The petitioner claims to be aggrieved by a direction issued by the Family Court to him to subject himself to the D.N.A. test. I fail to understand how, in the facts and circumstances of this case, the 1st claimant wanted to take upon herself the burden to get the D.N.A. test conducted. Be that as it may, she offered to get the D.N.A. test conducted. But it was the turn of the petitioner to resist the prayer to get the D.N.A. test conducted. The learned Judge ordered that the D.N.A. test can be conducted. 3. Aggrieved by that order, the petitioner has come before this Court. The learned counsel for the petitioner submits that the petitioner does not want to undergo the D.N.A. test. He is willing to face the consequence of adverse inference being drawn against him, submits the learned counsel for the petitioner. The petitioner can file a statement to that effect before the Family Court whereupon the learned Judge of the Family Court need not take any further steps in furtherance of the impugned order. Adverse inference can be drawn. 4. This Crl.M.C. is dismissed with the above observations. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge