IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 14TH DECEMBER 2011 / 23RD AGRAHAYANA 1933 RPFC.No. 74 of 2004() -------------------------- MC.333/1996 of FAMILY COURT, THIRUVANANTHAPURAM .................... REVISION PETITIONERS/PETITIONERS: ------------------------------------------------ 1. V.S.REMA, D/O. VASAMMA, KUZHIVILA VEEDU, NEAR KULATHUMMAL GOVT. H.S., KATTAKKADA, THIRUVANANTHAPURAM. 2. JAYAKRISHNAN (MINOR), S/O.LAJU KUMAR, RESIDING AT KUZHIVILA VEEDU, NEAR KULATHUMMAL GOVT. H.S., KATTAKKADA, THIRUVANANTHAPURAM. BY ADVS. SRI.M.RAJAGOPALAN NAIR SRI.G.BIJU RESPONDENT(S): RESPONDENT: -------------------------------------- L.T.LAJU KUMAR, S/O. LASAR, LAJU BHAVAN, MALAYINKEEZHU (PO), THIRUVANANTHAPURAM. R1 BY ADV. SRI.S.RAJEEV THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 14/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: svs RPFC. NO. 74/2004 APPENDIX PETITIONER'S ANNEXURES: ANNEXURE A1:COPY OF THE APPLICATION FILED BY THE FIRST PETITIONER BEFORE THE COURTBELOW TO CONDUCT DNA TEST. ANNEXURE A2:COPY OF THE OBJECTION FILED BY THE RESPONDENT ON 01/07/2000. ANNEXURE A3:COPY OF THE LETTER DATED 07/07/2000 ISSUED BY THE COURT BELOW TO THE DIRECTOR OF RAJIV GANDHI CENTRE FOR BIO-TECHNOLOGY, THIRUVANANTHAPURAM. ANNEXURE A4:COPY OF THE RECEIPT EVIDENCING THE PAYMENT OF RS.10,000/- BY THE FIRST PETITIONER. RESPONDENT'S ANNEXURES: NIL /TRUE COPY/ P.A. TO JUDGE. svs S.S.SATHEESACHANDRAN, J. ------------------------------- R.P.(F.C.).NO.74 OF 2004 ----------------------------------- Dated this the 14th day of December, 2011 O R D E R Challenge in the revision is against the order dated 28.02.2004 in M.C.No.333 of 1996, a proceeding under Section 125 of the Code of Criminal Procedure, for short, the 'Code', passed by the Family Court, Thiruvananthapuram. Petitioners in the above M.C., hereinafter referred to as the 'claimants', have filed this revision against the dismissal of their claim for maintenance from the respondent. 2. The case of the claimants was that the 1st claimant was a nursing assistant in a private nursing home conducted by the mother of the respondent, and pursuant to the affinity developed between the 1st claimant and the respondent, their marriage took place in a temple on 10.12.1995. She is a Hindu and the respondent, a Christian. In the matrimonial relationship between the parties, the 1st claimant gave birth to the R.P.(F.C.).No.74/2004 2 2nd claimant on 30.10.1996. While she was carrying, after deserting her, the respondent made arrangements for his marriage with another at a Church. She went over with her relatives and others to the Church and obstructed the performance of the second marriage of the respondent. The claimants, stating that they have no means for sustenance, claimed maintenance at the rate of Rs.750/- per month for the 1st claimant and Rs.350/- per month for the 2nd claimant setting forth a case that he is possessed of income of more than Rs.7,000/- per month, but, has refused or neglected to maintain them. The respondent resisted the claim contending that he has no marital relationship with the 1st claimant. He also disputed the paternity alleged against him over the 2nd claimant. He has married one Sabna in accordance with the rites and customs of the Christian religion, to which both of them belong, and he had no affair with the 1st claimant was his further case denying the allegation that his mother conducted a nursing home and the 1st claimant worked as a nursing assistant. R.P.(F.C.).No.74/2004 3 3. On the side of the claimants, PWs.1 and 2 and Exts.A1 to A3 were tendered and for the respondent, CPW1 to CPW4 and Exts.B1 to B4 were marked. Exts.X1 to X3 summoned and produced through witnesses were also exhibited in evidence. On the materials placed as above, the court below coming to the conclusion that the factum of marriage between the 1st claimant and the respondent and also the paternity of the 2nd claimant as the child of the respondent has not been established in the case, negatived the claim for maintenance canvassed for, and the application of the claimants was dismissed. Feeling aggrieved the claimants have come up with this revision. 4. I heard the counsel on both sides. In a proceeding under Section 125 of the Code, wherein, disputed questions are to be resolved in a summary trial, the court below has gone wrong in holding that the factum of marriage and also the paternity of the 2nd claimant – child was not established in the case and, thus, decline the claim of maintenance canvassed by the claimants, is the submission of their counsel. The evidence R.P.(F.C.).No.74/2004 4 of the 1st claimant regarding her marriage with the respondent is corroborated by PW2, his driver, who had asserted of participating and witnessing the marriage, is the submission of the counsel. Relying on Dwarika Prasad Satpathy v. Bidyut Prava Dixit and another ((1999) 7 SCC 675), it is contended that strict proof of marriage that it was performed with all the rituals and ceremonies necessary, is not to be insisted upon and once it is shown that a marriage has been performed and the parties cohabitated together as husband and wife, that is sufficient even where the marriage is disputed, to enable the 1st claimant as a wife to seek maintenance from the respondent/husband. Since the maintenance under Section 125 of the Code is intended to avoid vagrancy and destitution and a summary remedy is contemplated with no final adjudication as to the status, right and obligation of the parties, it is contended that the court below has gone wrong in not accepting and acting upon the evidence of the 1st claimant and her witness PW2 in entering a finding on the marriage in favour of the 1st claimant. In view of the dispute raised over the paternity of the R.P.(F.C.).No.74/2004 5 2nd claimant an application was moved to have a DNA test of the child with that of the respondent, and, the court allowed such application negativing the objections raised, and the claimants deposited the sum for such test to have such scientific examination, but, the respondent did not turn up for collection of his blood sample before the Centre (Institute) and later he filed a statement before the court refusing to undergo the DNA test, is the submission of the counsel to contend that the court below has gone wrong in not drawing an adverse inference against the respondent on disputed question of paternity and the factum of marriage as well. Reliance is placed on Selvaraj v. Jayakumary (2000 (3) KLT 519) to contend that refusal to undergo DNA test would indicate of a strong prima facie satisfaction as to the existence of a valid marriage between the 1st claimant and also the respondent. 5. Per contra, the learned counsel for the respondent relying on Goutam Kundu v. State of West Bengal and another (1993 SCC (Crl.) 928) contended that nobody could R.P.(F.C.).No.74/2004 6 be compelled to give sample of blood for analysis and for the refusal to give such sample no adverse inference can be drawn against him. The materials tendered by the respondent clearly showed that the 1st claimant is a woman of loose virtue and after apprehension by the police, she had been lodged in a rescue home, according to the counsel. The evidence of the officials of the rescue home with the documentary materials produced in the case proving the bad character of the 1st claimant and also taking note that no worth mentioning material was produced to establish the factum of marriage and paternity of the child as alleged in the case, the court below has rightly and correctly dismissed the claim for maintenance, and it does not suffer from any infirmity, is the submission of the counsel. Relying on Savitaben Somabhai Bhatiya v. State of Gujarat (2005 (2) KLT 65 (SC)), it is contended that without establishing that the 1st claimant is the wife of the respondent, proving that there was a valid marriage between her and the respondent, more so, where the parties belonged to two different religions, she was not entitled to claim any maintenance from the respondent and R.P.(F.C.).No.74/2004 7 that her claim was rightly negatived by the court below. Reliance is also placed on Teeku Dutta v. State (2004 (2) KLT SN 15 Case No.22) to contend that no party can be called upon to undergo the DNA test, for the purpose of collecting evidence, and so much so, no adverse inference could be drawn against the respondent for his refusal to undergo the DNA test giving his blood sample. Order passed by the court below declining maintenance to the claimants is proper, valid and correct, and there is no merit in the revision, is the submission of the counsel. 6. I have perused the records of the case. The 1st claimant was examined as PW1. PW2 was the driver of the respondent. He gave evidence of witnessing the marriage between the parties. Ext.A1 is the birth certificate of the 2nd claimant, wherein, the 1st claimant and the respondent are shown as his parents. Exts.A2 and A3 are two photographs in which the 1st claimant and the respondent are shown together. The respondent was examined as CPW1 and his uncle as CPW2. On the date of marriage alleged, his cousin, son of CPW2, committed R.P.(F.C.).No.74/2004 8 suicide and there was an autopsy, preparation of inquest etc., in which, he too was present was his case to dispute the marriage alleged. Exts.B1 to B3 are the police records relating to the aforesaid suicide. Ext.B4 is a certificate evidencing marriage of the respondent with another lady one Sabna. CPWs.3 and 4 are matrons of After Care Home, who were examined to show that the 1st claimant was detained there after being arrested by the police as involved in offences under the Immoral Traffic (Prevention) Act. Exts.X1 to X3 were summoned and produced through CPW4 to prove such a case. Incidentally, it is to be stated that no case was raised in the counter that the 1st claimant is a lady of bad character nor of her involvement in any offence under the Immoral Traffic (Prevention) Act leave alone no such case nor even any suggestion thereof was made when she was examined as PW1 in the case. 7. In the proceeding, the dispute raised by the parties called for answers to two questions. (i) Whether there was a valid marriage between the 1st claimant and the respondent ? R.P.(F.C.).No.74/2004 9 and (ii) Is the respondent the father of the child, 2nd claimant, whether it be legitimate or not ? Needless to state that even if the 1st claimant is shown to be not the wife of the respondent for the reason that there was no valid marriage between them, still, if the materials show that the child born to her is out of her sexual relationship with the respondent, and he is shown to be its biological father, then he is liable to provide maintenance to the child. So far as the marriage of the parties (1st claimant and the respondent) other than producing two photographs Exts.A2 and A3 showing both parties together, what we have is only the evidence of the 1st claimant as PW1 and the driver of the respondent as PW2. The 1st claimant is a Hindu and the respondent is a Christian. Their marriage is alleged to have taken place in a temple in Kanyakumari district. The evidence of PW2, the driver of the respondent, at the most, is only of participation in such marriage. No material has been produced to show that what were the ceremonies performed in such marriage and, further, whether the marriage between the parties in two different religions would constitute a lawful wedlock to R.P.(F.C.).No.74/2004 10 confer on the parties the status of wife and husband. The court below has found that even the performance of marriage asserted by the 1st claimant at a temple has not been established in the case. I do not find any infirmity in the finding so entered by the court below over the disputed factum of marriage between the 1st claimant and the respondent. 8. Paternity of the 2nd claimant as the child of the respondent, which was disputed by him denying of any association with the 1st claimant, and also producing materials to show that she is a lady of loose virtue, has not been scrutinised and appreciated with reference to the materials produced and circumstances presented in the case. Though the case of the 1st claimant regarding her marriage with the respondent has not been established, the evidence tendered by her as PW1 corroborated by PW2, the driver of the respondent, reveal that the 1st claimant and the respondent lived together as husband and wife quite for some time. After they cohabitated two to three days at the house of the respondent, they shifted to a R.P.(F.C.).No.74/2004 11 rented building, according to PW1. The respondent, in his counter, had no imputation against the character of the 1st claimant, but, it is seen, he has later developed a new case that she is a lady of loose virtue and that she was apprehended with PW2, his driver, and was detained in a rescue home. Strangely enough that new case canvassed by the respondent with some documentary materials summoned and produced through some officials of the rescue home, was found acceptable and reliable by the court below, which has not taken note that when the 1st claimant was examined as PW1, she was not even asked anything about those aspects leave apart that in the counter, the respondent had no such case at all. The evidence of the officials of the rescue home and the documents produced by them, which are hardly sufficient to identify that the person detained was the 1st claimant, should have been outrightly rejected by the court below as unworthy of any merit. The attempt made by the respondent, who is an advocate, in developing a new case as indicated above, with no allegation made in his counter nor put to the 1st claimant when she was examined, has only to be R.P.(F.C.).No.74/2004 12 deprecated. The court below has acted upon the materials so produced to form its conclusion on the disputed question of paternity of the 2nd claimant and it therefore is tainted with serious infirmity. The records of the case would disclose that overruling and negativing his objections, the application moved by the claimants for DNA test of the child with that of the respondent was allowed by the court below directing the 1st claimant to tender the costs for such test. After payment of a sum of Rs.10,000/- for the test when the parties were directed to the Rajeev Gandhi Centre for Biotechnology, Thiruvananthapuram, the mother and child, the claimants, alone appeared and the respondent kept aloof. The respondent later filed a statement before the court that he was not willing to undergo the test. His refusal to undergo the test is not material, from which no adverse inference could be drawn against him, is the submission of his counsel relying on Goutam Kundu's case (cited supra). The Apex Court has clarified in a later decision Sharda v. Dharampal (2003 (2) KLT 243 (SC)) that in Goutam Kundu's case (cited supra), what was held was that a R.P.(F.C.).No.74/2004 13 blood test cannot be ordered as a matter of course and in a case where principles under Section 112 of the Evidence Act are applicable to the facts involved non-access has to be established, and in such a case a request for blood test cannot be entertained. In Sharda's case (cited supra), it has been further clarified that the decision rendered in Goutam Kundu's case (cited supra) is not an authority for the proposition that under no circumstance the court can direct that blood test be conducted. The primary duty of the court being to find out the truth, the interest of the child in respect of whom DNA test is sought for has to be taken into account whether the blood test is to be conducted or not. In case there is a refusal of the respondent to undergo the test despite the order of the court, it has been held that such refusal itself would give rise to a strong case of drawing an adverse inference against him. Applicability of Section 114 of the Evidence Act would enable the court to draw such an adverse inference against him was the view taken by the Apex Court. When that be the position of law, as enunciated by the Apex Court, it is futile to contend that no adverse inference R.P.(F.C.).No.74/2004 14 can be drawn against the respondent for his refusal to give blood sample for the test even after an order was passed by the court. The court below has gone wrong in holding that no adverse inference could be drawn by the refusal of the respondent to give blood sample for the DNA test as the disputed factum of marriage has not been established in the case. If the dispute over the factum of marriage has been established by materials in favour of the 1st claimant the need for a DNA test with the blood samples of the child and the respondent would not have arisen at all. There was close relationship between the 1st claimant and the respondent as asserted by the former as PW1, which is corroborated by PW2 and the photographs produced Exts.A2 and A3, with respect to which, no cogent and convincing explanation was given by the respondent, clearly establish that they lived together as husband and wife which, no doubt, would not confer the 1st claimant with the status of a wife to claim maintenance from the respondent; but where such relationship between the parties has been established by the materials tendered, the disputed question of paternity of the 2nd claimant necessarily has R.P.(F.C.).No.74/2004 15 to be examined on that basis. In such examination, refusal of the respondent to undergo the DNA test from which an adverse inference has to be drawn against him, no doubt, is decisive. The finding entered on that disputed question by the court below without looking into the aforesaid aspects is erroneous and unsustainable. The proceeding being a summary nature and in the light of the materials tendered and the adverse inference to be drawn against the respondent for his refusal to undergo the DNA test, it has to be concluded that the respondent is the father of the 2nd claimant and he is bound to provide maintenance to that child. 9. Claim for maintenance in the case has been filed in the year 1996. The amount of maintenance claimed for the child, then, aged one and half months, after a span of 15 years, now, has no basis at all. So much so, it will be open to the claimants to seek modification of their claim of the respondent, and the court below, even in the absence of any such request for modification, has to fix the quantum of maintenance of the child R.P.(F.C.).No.74/2004 16 considering the continuation of the proceedings and also its age as of now, of course taking into account other circumstances relevant for fixing the maintenance. 10. The claim for maintenance canvassed by the 1st claimant as the wife of the respondent turned down by the court below is only to be affirmed as she has not established her marriage with the respondent. Dismissal of the claim for maintenance of the 1st claimant by the court below shall stand undisturbed. So far as the claim of the 2nd claimant, as it has been found that the 2nd claimant is the child of the respondent, he has to provide maintenance to the child, the quantum of which has to be fixed by the court below taking note of the observations made above and in accordance with law. The parties will be given further opportunity to lead evidence on the question of fixing the quantum of maintenance of 2nd claimant, and that alone, and the proceedings have to be completed within three months from the date of receipt of the records of the case. R.P.(F.C.).No.74/2004 17 11. The order of the court below so far as the dismissal of the claim of the 2nd claimant shall stand set aside and the case is remitted for fresh disposal after further enquiry on the limited question of the quantum of maintenance to be awarded to the 2nd claimant. 12. Parties are directed to appear before the court below through their counsel on 05.01.2012. Registry is directed to send the records to the court below without any delay. The court below shall complete the enquiry and dispose the case as expeditiously as possible, at any rate, within the time limit indicated above taking note of the observations made above and in accordance with law. Revision is disposed of. S.S.SATHEESACHANDRAN JUDGE prp R.P.(F.C.).No.74/2004 18