IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN SATURDAY, THE 19TH NOVEMBER 2011 / 28TH KARTHIKA 1933 Crl.MC.No. 2542 of 2011(C) ------------------------- MC.249/2004 OF THE FAMILY COURT, KANNUR .................... PETITIONER(S): COUNTER PETITIONER --------------------------------- RAYAROTH MALAPPETTANAVAN PRADEEPAN, S/O.GOVINDAN, KANHILERI, P.O.CHERIKODE. BY ADVS. SRI.GEORGE MATHEW SMT.CELINE JOSEPH SRI.P.BHARATHAN RESPONDENT(S): PETITIONER & STATE --------------------------------- 1. KOYADAN KELOTH PRASHOB (MINOR), REP.BY GUARDIAN KOYON KELOTH THANKAMANI, D/O.NARAYANAN NAMBIAR, KANHILERI, CHERIKODE. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.P.NARAYANAN R2 BY PUBLIC PROSECUTOR SRI. RAJESH VIJAYAN THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 19/11/2011,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: N.K. BALAKRISHNAN, J. ------------------------------------------ Crl. M.C. No: 2542 OF 2011 (C) ------------------------------------------ Dated this the 19th day of November, 2011 O R D E R The petitioner, herein, is the respondent in M.C.No:249/2004 of Family Court, Kannur. That M.C. was filed under section 125 of Cr.P.C. seeking maintenance. First respondent, is a minor boy who is represented by his mother, Thankamani. Smt. Thankamani, mentioned above, contended that while she was working as servant in the house of Pradeepan (the petitioner herein) he had sexual intercourse with her promising that he will marry her and as a result of the same she became pregnant and later gave birth to a male child, who is Prashob, the first respondent, herein. Thus, Smt. Thankamani contends that minor Prashob is the illegitimate son of the petitioner, Pradeepan and hence he (Pradeepan) is liable to provide maintenance to the minor son, Prashob. Pradeepan, mentioned above, Crl. M.C. No: 2542 OF 2011 (C) -2- filed objection statement denying the allegations made in the petition, M.C.No:249/2004. 2. In that petition an application was filed by Smt.Thankamani, representing her minor son, seeking a direction to Pradeepan, the petitioner herein, to give his blood sample for the purpose of DNA finger printing test, to prove that the minor Prashob is the son of Pradeepan, mentioned above. That petition was opposed by Sri.Pradeepan contending, inter alia, that Smt. Thankamani was the legally wedded wife of one Kadankodan Kunhiraman and that marital relationship was subsisting and since Prashob was born during the subsistence of that marriage, Kadankodan Kunhiraman should be presumed to be the father of Prashob, in view of the presumption under section 112 of Evidence Act. Hence, he contended that he cannot be compelled to undergo the DNA finger printing test unless Smt. Thankamani could succeed to prove that Sri.Kadankodan Kunhiraman had no access to her and that Crl. M.C. No: 2542 OF 2011 (C) -3- Prashob could not have been conceived from Kadankodan Kunhiraman. 3. The case was earlier pending before J.F.C.M., Thaliparamba, as M.C.No:97/97. The learned Magistrate allowed the application for DNA test. That Order was challenged before this Court in Criminal Revision Petition No: 974/2000. The Order passed by the learned Magistrate was set aside and remanded to the Court below with a direction to consider the question regarding the alleged marriage between Thankamani and Kadankodan Kunhiraman. Thereupon, the case was transferred to Family Court, Kannur. As directed by this Court evidence was recorded by the learned Judge of Family Court. PWs 1 and 2 were examined and Exhibits P1 and P2 series were marked on the side of the petitioner in M.C. On the side of Pradeepan (respondent therein) CPWs 1 to 4 were examined and Exhibits D1 and D2 were marked. Crl. M.C. No: 2542 OF 2011 (C) -4- 4. Relevant points for consideration were formulated by the learned trial Judge. After thorough scrutiny of the evidence adduced by the parties, the learned trial Judge found that there was no marriage between Kadankodan Kunhiraman and Thankamani as alleged by Pradeepan, the petitioner herein. It was held that Kadankodan Kunhiraman is a fictitious person. It was hence held that the question of invoking presumption under section 112 of Evidence Act does not arise. As such, it was held that the petitioner is not entitled to deny the request for DNA finger printing test, sought for by Smt. Thankamani. The application filed by Smt.Thankamani, for that purpose, was therefore allowed by the learned Judge, Family Court, Kannur. 5. The learned counsel appearing for Pradeepan, (the petitioner herein) submits that the evidence adduced by the parties were not properly considered by the trial Court. The fact that Exhibits D1 and D2, proved through the Secretary of Panchayath, was not properly considered by Crl. M.C. No: 2542 OF 2011 (C) -5- the Court below. It is further submitted that there was no possibility for creating Exhibits D1 and D2 for the purpose of this case and so being official records, Exhibits D1 and D2 should have been relied upon by the Court below. This submission is resisted by the learned counsel appearing for first respondent. 6. The presumption under section 112 of the Evidence Act can only be displaced by a strong preponderance of evidence, and not by a mere balance of probability since law presumes that a marriage ceremony is valid and that every person is legitimate. It is further argued that unless it can be shown that the parties to the marriage had no access to each other at any time when the child could have been begotten, it should be taken as conclusive proof that child is the legitimate son of that man. Section 112 requires the party disputing the paternity to prove non access in order to dispel the presumption. "Access" and "non access" mean the existence or non Crl. M.C. No: 2542 OF 2011 (C) -6- existence of opportunities for sexual intercourse; it does not mean actual cohabitation. The decision of the apex Court in Goutamkundu Vs. State of West Bengal reported in AIR 1993 SC 2295 has been relied upon by the counsel where it was held: 1) "Courts in India cannot order blood test as a matter of course; 2) wherever applications are made for such prayers in order to have roving inquiry, the prayer for blood test cannot be entertained. 3) There must be a strong prima facie case in that the husband must establish non-access in order to dispel the presumption arising under section 112 of the Evidence Act. 4) The Courts must carefully examine as to what would be the consequence of ordering the blood test; whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman. 5) No one can be compelled to give sample of blood for analysis." 7. The learned counsel for the respondent herein Crl. M.C. No: 2542 OF 2011 (C) -7- would submit that the aforesaid decision has no application of the facts of the case on hand since, here, it is the mother of the minor boy who contends that petitioner is the father of the illegitimate boy, the respondent herein, and it is she who says that there was no marriage at all between herself and Kadankodan Kunhiraman. The specific case advanced by Smt. Thankamani is that Kadankodan Kunhiraman, mentioned by the petitioner is a fictitious person and no such person did exist and Thankamani does not know such a person at all. Kadankodan Kunhiraman who was stated to have married Thankamani was not produced in Court at all. It is also argued that since the case of Smt.Thankamani is that she does not know a man by name Kadankodan Kunhiraman and that no such person was there at any point of time, being a negative aspect it is not possible for her to prove that any such person as 'Kadankodan Kunhiraman' ever lived during the relevant period or at least now. Therefore, it is for the petitioner who asserts that there was Crl. M.C. No: 2542 OF 2011 (C) -8- such a person by name 'Kadankodan Kunhiraman' and that she had married Thankamani to prove that aspect. 8. The decision in Vasu V. Santha reported in 1975 KHC 50 has no application to the facts of this case. There was evidence in that case that the child was born during the subsistence of marriage and so there was conclusive proof of legitimacy. In that context, it was held, unless the appellant therein, shows that he had no access to his wife at any time when the child could have been begotten, he could not succeed in his plea. 9. It is also argued by the learned counsel for the respondent that if, as a matter of fact, Thankamani had married Kadankodan Kunhiraman and if the respondent was born through him, there was no necessity for her to come to the Court and tell that the boy is her illegitimate son born to the petitioner Pradeepan, for, it was easy for her to say that the minor boy was the legitimate son of Kadankodan Kunhiraman itself. The contention that the stigma of Crl. M.C. No: 2542 OF 2011 (C) -9- illegitimacy is very severe and that if an order is passed to the effect that minor Prashob was born by illicit relationship between him and respondent mother (Thankamani) then the boy may have to be always treated as illegitimate which would be detrimental to the interest of the boy is only to be turned down. When the case itself is the boy is the illegitimate son of Pradeepan, the argument advanced on behalf of the petitioner assumes no relevance at all. 10. It is pertinent to note that in all the decisions relied upon by the learned counsel for the petitioner, paternity was disputed by the father of the child when the marriage between him (the father of the child ) and mother of the child was subsisting. In all such cases the mother of the child contended that the child was born to her in the lawful wedlock between herself and the other man, who is the father of the child. Here, CPW 1 (the petitioner herein) wanted to escape from the liability by putting forth a case of marriage between Thankamani and a fictitious person by Crl. M.C. No: 2542 OF 2011 (C) -10- name 'Kadankodan Kunhiraman'. Court has to lift the veil and look at the conspectus of factors to discern the naked truth. It is not a case where the husband of the woman (the legally wedded wife) disputes the paternity of the child born to her during the subsistence of the marriage. The contextual variation cannot be simply glossed over. 11. Now the crucial point for consideration is whether there is any iota of evidence to hold that Thankamani was married to Kadankodan Kunhiraman. In this connection, the petitioner has relied upon Exhibit D1, the Marriage Certificate of Special Grade Secretary of Sreekandapuram Panchayat. 12. Much was argued by the learned counsel for the petitioner stating that there is no reason to reject Exhibits D1 and D2. In Exhibit D2, the name of the person, who was stated to have married PW1, was shown as Kadankol Kunhiraman, aged 45 years. The age of Thankamani, therein, was shown as 29 years. When she was examined Crl. M.C. No: 2542 OF 2011 (C) -11- in 1999, she was aged only 33 years. If so, in the year 1999 she can only be 24 years. That was also projected as one of the grounds to say that Thankamani, shown in Exhibits D1 and D2, can never be PW1 herein. It is so pointed out by the Court below that since that Court had doubt regarding the genuineness of Exhibits D1 and D2, the original marriage register was asked to be produced. The Court below has observed that on a perusal of the register produced by the Panchayat, it could be found that it was not kept regularly and properly. The register was seen to be a rebound book. So many loose sheets were subsequently bundled up and bound to make it appear as a register. If so, according to the respondent, herein, there was every possibility of a filled up form having its surreptitious or suspicious intrusion into that file subsequent to the starting of this litigation. It was also pointed out by the Court below that the pages were not machine numbered. A register is required to be machine numbered to rule out the possibility Crl. M.C. No: 2542 OF 2011 (C) -12- of subsequent manipulation. Since the pages were not machine numbered and the pages of that book were not serially numbered, the Court was not inclined to place reliance on the said book. So much so, the copy taken there from can carry no conviction or probative value. It was observed by the Court below that the learned Judge perused almost all the pages of the register but he could not notice machine numbers on the pages. It could also be found that the aforesaid rebound register contains various un- numbered pages which would fortify the conclusion that so many such loose sheets were rebound conveniently at a later point of time. It was also noted that except the disputed marriage of Thankamani and Kadankodan Kunhiraman all other marriages were entered in the register only after about 15 days from the respective dates of marriage. But the alleged marriage of Thankamani and Kadankodan Kunhiraman was seen registered on the same day, i.e., on 15.2.1990. It appears strange and surprising Crl. M.C. No: 2542 OF 2011 (C) -13- that immediately after the marriage ceremony was over, the couple rushed to the Panchayat office to get the marriage registered, leaving all the guests and invitees at the place of marriage itself. That also is a circumstance to unravel the fallacy of the case manoeuvred and engineered by an ingenious brain, the respondent contends. 13. The learned trial Judge, after perusal of the register could find that the register was not prepared regularly and properly. There were so many circumstances which tend to doubt the correctness of the factors noted therein. Hence the Court below was perfectly justified in not relying upon Exhibits D1 and D2, as documents evidencing the alleged marriage between PW1 and Kadankodan Kunhiraman. 14. It is also pointed out that though in Exhibit D1 the name of the person, who was stated to have married PW1, was shown as 'Kadankodan Kunhiraman', in Exhibit D2 his name is shown as 'Kankol Kunhiraman'; the two persons are Crl. M.C. No: 2542 OF 2011 (C) -14- entirely different. If actually such a person had married PW1 and if such a person was alive, there was no reason why he could not be produced in Court, either by summons or by taking other coercive steps. Even if it is accepted that the whereabouts of that person could not be traced out, if actually that person was residing in a particular house and was related to certain person by blood or otherwise, there was no reason why his near relatives could not be produced in Court to prove atleast, that such a person by name 'Kadankodan Kunhiraman' had lived in that particular locality and that his age in 1990 was as shown in Exhibits D1 and D2. 15. To prove that there was a marriage, CPWs 3 and 4 were examined. Both those witnesses were proved to be having serious grouse against PW1. Though they tried to wriggle out by giving evasive answers the fact that there was a criminal case against them, filed by PW1 herself, as seen in Exhibits P2, P2(a) and P2(b) produced by PW1, had Crl. M.C. No: 2542 OF 2011 (C) -15- to be later admitted by them when the documents were confronted. 16. It was also pointed out by the respondent that PW1 was attacked by those two persons, after trespassing into her house, but with the help of their political mentors the accused could get that case withdrawn by the State and so they were acquitted under section 321 Cr.P.C. Be that as it may, the fact that these two witnesses were on inimical terms, is sufficient to doubt the veracity of those two witnesses. The court below has narrated the circumstances to hold their evidence improbable and incredible. CPW 3 does not remember the date, month and year of his own marriage which took place within 5 years prior to the date of his examination in Court. What more, he does not even remember the date of birth of his children born thereafter, but strangely enough, he remembers with adroit accuracy, the date of the alleged marriage between PW1 and Kadankodan Kunhiraman as 15.2.1990 which took place Crl. M.C. No: 2542 OF 2011 (C) -16- several years ago. What more is required to hold that CPW3 was hired and tutored by the petitioner to perjure before Court, the respondent contends. The evidence of CPW 4 was also found to be in the same line. The respondent would contend that the petitioner was under an erroneous impression that the Courts are so gullible to swallow such prevarications. 17. Since no satisfactory evidence was adduced by the petitioner to show that there was a person by name 'Kadankodan Kunhiraman' at any point of time, the court below was perfectly justified in coming to the conclusion that the case setup by the petitioner, that PW1 was earlier married by Kadankodan Kunhiraman, is unacceptable and that Kadankodan Kunhiraman is only a fictitious person. As mentioned earlier, even the name of that person was differently entered in Exhibts D1 and D2. The difference in the age of the woman shown therein is also another aspect which runs counter to the case setup by the petitioner. It Crl. M.C. No: 2542 OF 2011 (C) -17- was also noted by the Court below that as per the averments in the affidavit filed by the present Secretary of Sreekandapuram Panchayat that the original and duplicate of the marriage report filed by the parties are not available in the office of the Panchayat or in the office of the Deputy Director of Panchayat. As per Rule 10(2) of the Kerala Hindu Marriage Registration Rules, the original of the marriage report received by the local Registrar should be filed by him as a permanent record. The conspicuous absence or disappearance of the record from the two offices mentioned above would also cause serious doubt on the so called registration of the marriage put forward by the petitioner. These aspects were also highlighted by the Court below to hold that the marriage between PW1 and the so called Kadankodan Kunhiraman, put forward by the petitioner herein, is a sheer myth. It is not now necessary to dwell at length on the evidence given by PW1 and her witnesses with regard to the relationship which PW1 had Crl. M.C. No: 2542 OF 2011 (C) -18- with the petitioner herein and about the mediation talk. There is no reason why the petitioner should be afraid of the DNA test if he is sure that he is not the biological father of the child. When the possibility of getting a more convincing, authenticated and unfaulting scientific report regarding the paternity of the child is available the Court should adopt and favour such a course. That is necessary to protect the right and interest of the child. 18. The court below has analised the evidence in the correct perspective. I find no reason to upset the well discussed and well reasoned order passed by the Court below. Hence this petition is dismissed. N.K. BALAKRISHNAN, JUDGE jjj