IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 10TH JANUARY 2008 / 20TH POUSHA 1929 WP(C).No. 22946 of 2006(F) -------------------------- MP 581/06 IN MC.19/2005 of FAMILY COURT,ERNAKULAM .................... PETITIONER: ------------ AJAYAKUMAR, S/O. MADHAVAN, AGED 33 YEARS, POYYATTIL HOUSE, KULATTIKARA P.O., KEECHERI, AMBALLOOR VILLAGE, ERNAKULAM, KANAYANNUR TALUK. BY ADV. SRI.T.C.THOMAS RESPONDENTS: ------------- 1. JAYA, W/O. LATE SREENIVASAN, THAZHATHUMMADATHIL PARAMBIL, KULAYATTIKKARA P.O., AMABALLOOR VILLAGE, ERNAKULAM. 2. ANJU, AGED 9 YEARS, D/O. JAYA, THAZHATHUMADATHIL PARAMBIL, KULAYATTIKKARA, AMBALLOOR VILLAGE, ERNAKULAM. BY ADV. SMT.C.G.BINDU SMT.C.G.AJITHA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = W.P.C. NO. 22946 OF 2006 = = = = = = = = = = = = = = = Dated this the 10th day of January, 2008. J U D G M E N T This writ petition is preferred against the order of the Family Court, Ernakulam in MP 581/06 in M.C.19/05. It was an application filed for DNA test and it has been allowed by the Court. The Court directed the respondent therein to co- operate for the DNA test. The writ petition was filed in August, 2006. When the matter is taken up today I had the privilege of having the assistance of counsel appearing for both sides. The learned counsel for the respondent would submit that what is sought to be challenged is only the order in the application to send it for DNA test. 2. The learned counsel for the writ petitioner brought to my notice a decision of the Division Bench of this Court reported in Bharat Kumar v. Selma Mini (2007 (1) KLT 945). In the said decision this Court held that Family Court cannot entertain any proceedings for declaration as to the legitimacy of any person without any claim on marital W.P.C 22946 OF 2006 -:2:- relationship. In the said decision there is a reference to the decision of the Apex Court reported in Renubala Moharana v. Mina Mohanty (2004 (4) SCC 215) which is as follows. “It was also held by the Supreme Court in the said decision that the Family Court cannot entertain any proceedings for declaration as to the legitimacy of any person without any claim on marital relationship.” 3. Admittedly here is a case where there is no marital relationship between the writ petitioner and the first respondent. So, the learned counsel for the writ petitioner submits that the petition itself is not maintainable. On the contra, the learned counsel for the respondent would contend it is only a maintenance case where the question incidentally arises for consideration is regarding the paternity. It is seen from Ext.P2 petition that there is a prayer to declare that 2nd petitioner is the daughter of respondent, Ajayakumar and there relief of maintenance is claimed. The learned counsel for the writ petitioner contends that in the light of this W.P.C 22946 OF 2006 -:3:- valuable pronouncement he wants to raise the question of maintainability of the petition itself before the Family Court. I feel there is considerable force in the said contention. Therefore, I permit the writ petitioner to move the Court below regarding the maintainability of the petition itself and the Court has to consider it as a preliminary point. Till such a decision is taken the present order ordering DNA test cannot be implemented and in case the preliminary point goes against the present writ petitioner permission is granted to him to approach this Court again challenging the order of the DNA test which is impugned in this writ petition. The writ petition is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-