IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 22ND JULY 2008 / 31ST ASHADHA 1930 Crl.Rev.Pet.No. 974 of 2000() ----------------------------- AGAINST THE ORDER DATED 23/08/2000 IN CMP 4956 /2000 IN MC.97/1997 of JUDL.MAGISTRATE OF FIRST CLASS COURT, TALIPARAMBA .................... REVN. PETITIONER: ------------------ RAYORETH MALAPETTANAVAN PRADEEPAN, S/O.GOVINDAN, KANHILERI P.O., CHERIKODE. BY ADV. SRI.GRASHIOUS KURIAKOSE SRI.VIJU ABRAHAM RESPONDENTS: ------------- 1. KOYADAN KELOTH PRASOBH, MINOR REPRESENTED BY HIS MOTHER AND GUARDIAN KOYADAN KELOTH THANKAMANI, D/O.NARAYANAN NAMBIAR, KANHILERI CHERIKOD. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM BY PUBLIC PROSECUTOR SRI.C.M.NAZAR SRI.P.NARAYANAN FOR R1 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = Crl.R.P.No.974 of 2000 = = = = = = = = = = = = = = Dated this the 22 nd day of July, 2008 ORDER Heard both sides. 2. The revision petitioner was the respondent in M.C.No.97 of 1997 on the file of the J.F.C.M, Taliparamba filed by the 1st respondent herein through his mother, Thankamani, claiming maintenance under Section 125 of the Cr.P.C. 3. The case of the applicant before the Magistrate was that the revision petitioner herein had sexual intercourse with her after promising her to marry her and the said intercourse resulted in her conceiving and giving birth to a male child who was subsequently named as Prasobh, that since Prasobh is the illegitimate son of the revision petitioner, he is entitled to get maintenance from the revision petitioner and that Ext.P1 is the birth registration certificate showing that the revision petitioner is the father of the said Prashob. 4. The revision petitioner resisted the application for maintenance contending, inter alia, that the applicant's mother Thankamani was the legally wedded wife of one Kandankodan Crl.R.P.No.974 of 2000 2 Kunhiraman as evidenced by Ext.P1 Marriage Registration Certificate kept in Sreekandapuram Panchayat and the said marriage was still subsisting and since Prasobh was born during the subsistence of the said marriage, the said Kandankodan Kunhiraman should be presumed to be the father of Prashob as provided under Section 112 of the Evidence Act. 5. During the course of the trial of the M.C, Thankamani, the mother of the applicant filed Crl.M.P No.4956 of 2000 seeking a direction to the revision petitioner to give his blood sample for the purpose of DNA finger printing tests to find out whether the said Prasob is the son of the petitioner. The said petition was opposed by the revision petitioner contending, inter alia, that having regard to the statutory presumption available under Section 112 of the Evidence Act, the revision petitioner cannot be compelled to undergo the DNA finger printing test unless the Thankamanai was able to show that her husband had no access to her and that the minor Prasobh could not have been conceived from her husband. As against the above contention Thankamani took up the stand that there was no such marriage as alleged by the revision petitioner and that Kandankodan Crl.R.P.No.974 of 2000 3 Kunhiraman was a non existing person. 6. The learned Magistrate on the premise that since Kandankodan Kunhiraman's existence itself was under challenge, the revision petitioner cannot take shelter under the statutory presumption under Section 112 of the Evidence Act passed impugned order dated 23.8.2000 directing him to give his blood sample for the purpose of DNA finger printing tests. 7. If Ext.P1, Marriage Certificate given by the Sreekantapuram Panchayat, is proved to be genuine and a subsisting marriage between Thankamani and Kandankodan Kunhiraman referred above is shown to exist, then the presumption under Section 112 of the Evidence Act will automatically get attracted unless Thankamani is able to prove non access. It was overlooking this aspect of the matter that the learned Magistrate ordered DNA finger printing tests. If Thankamani was validly married by the aforementioned Kandankodan Kunhiraman and if it was during the subsistance of such marriage that the male child was born, then unless she is able to show non access by her husband, the child will have to be presumed to be born to Kandankodan Kunhiraman and Crl.R.P.No.974 of 2000 4 Thankamani in which case there should be no doubt or dispute regarding the paternity of the child. Before ordering DNA finger printing tests the learned Magistrate ought to have decided this issue first. Much emphasis does not appear to have been given to this aspect of the matter. The impugned order is set aside. This case is accordingly is remanded to the court below for a proper consideration of the question regarding the alleged marriage between Thankamani and Kandankodan Kunhiraman and then considering the permissibility or otherwise of request for DNA finger printing tests. In case there is acceptable evidence in support of the alleged marriage, it shall be open to Thankamani to plead and prove non access. Both sides shall be permitted to adduce further evidence if they deemed necessary. The parties shall appear before the court below without any further notice on 11.8.08. Dated this the 22 nd day of July, 2008. sd/- V. RAMKUMAR, JUDGE sj /True Copy/ P.A To Judge