IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 2ND MARCH 2010 / 11TH PHALGUNA 1931 RPFC.No. 354 of 2008() ---------------------- MC.306/2004 of FAMILY COURT, THRISSUR. .................... PETITIONER(S)/RESPONDENT: ----------------------------------------------- NAJEEB S/O.KUNJUMUHAMMED, MANGALASSERY HOUSE,VAZHAPPILLI DESOM, PERAKAM VILLAGE, PERAKAM P.O. VAZHAPPULLY, CHAVAKKAD TALUK, THRISSUR DISTRICT. BY ADV. SRI.V.PHILIP MATHEWS RESPONDENT(S): PETITIONER: ---------------------------------------------- DHEERAJ, MINOR, REPRESENTED BY HIS MOTHER BHAVANA, D/O.BHASKARAN, PADINJATTEYIL HOUSE, KURANJIYOOR DESOM, PUNNAYOOR VILLAGE. ADV. SRI.P.K.ANIL THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 02/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N.KRISHNAN,J. ====================== R.P.(F.C) No.354 OF 2008 ====================== Dated this the 2nd day of March 2010. JUDGMENT This revision is preferred against the order of the Family Court, Trichur in M.C.No.306/2004. The minor boy Dheeraj aged 11 months moved application for maintenance through his mother against the revision claiming maintenance on the ground that the revision petitioner is the father of the said child. The court below after considering the materials available, decided in favour of the child conferred the paternity on the revision petitioner and ordered maintenance. It is against that decision the respondent therein has come up in revision. 2. Heard the learned counsel for the revision petitioner and perused the records. The learned counsel very strongly contends before me that the decision of the Family Court relying on an adverse inference on the ground that the revision petitioner did not undergo a DNA test cannot be R.P.(F.C) No.354 OF 2008 2 a sole legal basis for confering paternity of a child. The learned counsel had cited before me two decisions of the Apex Court reported in Harpal Singh V. Devinder Singh and Another, (1997 (6) Supreme Court Cases 660). In the said decision the court in paragraph 24 held that:- “The illustration (g) in Section 114 of the Evidence Act is only a permissible inference and not a necessary inference. Unless there are other circumstances also to facilitate the drawing of of an adverse inference, it should not be a mechanical process to draw adverse inference merely on the strength of non-examination of a witness even if it is a material witness.” 3. In the decision reported in Municipal corporation,Faridabad V.Siri Niwas,(2004 (8) Supreme Court Cases 195) in para 19 the Apex Court observed:- "Further more a party in order to get benefit of the provisions contained in Section 114 IIII. (g) of the Evidence Act must place some evidence in support of his case.” 4. So the dictum laid down in these two decisions are to the effect that a conclusive finding cannot be based merely on the adverse inference drawn by a court. I feel there cannot be any quarrel about that proposition. Deciding the question of paternity on the sole basis of R.P.(F.C) No.354 OF 2008 3 adverse inference will not be correct. But the circumstance which leads to such a situation is always relevant for consideration while appreciating the entire evidence in this case. 5. Young girl who was employed in a cassette shop became pregnant and gave birth to a child and the revision petitioner, the licensee of the shop is attempted to be conferred with paternity of the said child. It has to be remembered that the young girl was employed in the said cassette shop. Later she became pregnant and gave birth to a child and it is that child who is before the court claiming maintenance. The learned counsel for the revision petitioner strongly contends before me that the whole basis of the case of the complainant before the Magistrate Court has to fall to the ground for the reason that in the private complaint the alleged act of sexual intercourse is on 15.3.2002 and the date of birth of the child is 28.11.2003. If 15.3.2002 is the alleged date of action then certainly there is some force in the contention of the learned counsel R.P.(F.C) No.354 OF 2008 4 for the revision petitioner. The learned counsel for the revision petitioner had produced a copy of the judgment of the Criminal Court in Sessions Case No.1/2006. There the learned Sessions Judge had relied on the date of sexual intercourse on 11.2.2003 and not 15.3.2002. The lady before the court would depose that on 15.3.2002 there was only an attempt and it had not materialised. 6. The next contention raised by the learned counsel for the revision petitioner is by reference to the hospital records. In the hospital records the name of the father is given in one place as Suresh and in another place it is given as Sooran. Both cannot be correct. The girl had undergone delivery and as seen from the records she had been antagonised and had been suffering. It was at that point of time the name of the husband is shown as Suresh or Sooran. There is no case for anybody that that lady is married and therefore the question of anybody becoming husband of that girl at that point of time does not arise for determination. It is also equally interesting to note that the R.P.(F.C) No.354 OF 2008 5 name of the child is entered in the birth register extract as Binoy whereas the name of the child involved in this case is Dheeraj. It is not explained way. So the documents themselves would reveal that the entries therein are not absolutely reliable for a court of law to base finding on the same. 7. The reading of the judgment of the Sessions Judge would proceed on the basis that the sexual acts had been done by consent and therefore a question of rape under Section 376 of the Indian Penal Code does not arise. One has also to remember about the society in which we live. Why should a lady give a name of a wrong person and confer the paternity of her child on a person who is not responsible for the same. Under ordinary circumstances no lady in Indian Society would do it. Learned counsel explained it away by saying that there was one Raju residing in the house of the girl and in order to save him this man is dragged into. This Raju is none other than the son of the mothers sister of the girl or in other words is the R.P.(F.C) No.354 OF 2008 6 brother. It is difficult to believe that the brother is also dragged into the picture. If really such a situation takes place, in a residential house one cannot suppress it for a long time. Therefore the said theory also cannot be accepted. PWs.1, 2 and 3 had spoken about the case. Really the person who knows the fact is PW1. She had stated before the Court that she had sexual action with the revision petitioner herein and the child is born in the same. PW2 the mother would deposed that she was away in connection with some treatment and she did not know the pregnancy of the girl. Belatedly why should the mother come and attribute it on wrong person. A reading of the evidence would reveal that this man had promised to marry her and it has withered away and that has led into this situation. 8. Now regarding DNA test. After a prolonged efforts by the scientists reasonable preponderance of probability theory is evolved by conducting a DNA test because it is considered to be an acid test for the reason that the R.P.(F.C) No.354 OF 2008 7 chromosomes in persons can determine the same. It is true that there are numerable number of debates on the correctness or the precise absoluteness of a DNA test. I think I need not venture to discuss it here for the reason that the revision petitioner before me did not have the courage to undergo a DNA test. The girl deposited the amount and was prepared to undergo the DNA test. The revision petitioner wanted to get away from a DNA test and he would deposed before the Court in different stages that he is an epileptic patient and he will not be able to tolerate the sight of blood. When a question was put to him as blood sample can be taken from the local premises he may agree for that, Still he did not accept the same. If the person is absolutely confident about himself that he has nothing to do with the girl, what prevents him from giving his blood sample for DNA test is a question to be considered in this case. He is a person who is running a cassette shop. There is nothing to prove epilepsy. Even if it is there, it does not affect him. He is a person who had stood the R.P.(F.C) No.354 OF 2008 8 difficulties of a criminal trial. It does not bother him. When a question of giving a little drop of blood for the DNA test is raised, he would contend that he is an epileptic patient and that he will not be able to tolerate it. I am afraid that such an attitude is really suspicious as to the character of the person and it is in that backdrop the evidence tendered by the other witness that has to be analysed. I may put in a different way. It is not an adverse inference that is drawn in order to confer paternity on that man but it is the conduct of the person not to undergo a DNA test which creates an utmost suspicious circumstance and which when read with the evidence of PWs. 1 and 2 leads to the logical conclusion that he has connection with the girl and that is why he is not facing a DNA test. The learned counsel had cited a decision of this Court reported in Laila & Another V. Muhammedali, (ILR 2009 (4) page No.22) The learned Judges of the Court held that the unwillingness by wife to undergo DNA test is shall not go against her. I absolutely with respect agree with the said R.P.(F.C) No.354 OF 2008 9 observation but each case has to be dealt with according to the facts and circumstances of that case and it is not the non undergoing of a DNA test that is made use to decide against the revision petitioner but it is taken as a circumstance read along with the evidence of PW1 and PW2 to arrive at a decision in analysing and coming to the conclusion that the evidence tendered by PW1 in that regard appears to be acceptable. Time and again court have held that the method of appreciation of evidence is only on the basis of the intrinsic reliability and intrinsic probability and the intrinsic reality in this case can be deduced from the inherent probability that is surrounding the facts and circumstances of the case. Therefore from the materials available. I do not find any ground to deviate from the finding though the Family court should have discussed it in a better way to arrive at a decision regarding the paternity of the child being conferred upon the revision petitioner. The amount of maintenance ordered is also to meagre to be interfered with and R.P.(F.C) No.354 OF 2008 10 therefore I hold that the revision lacks merits and the same is dismissed. I make it very clear that if the the parties want to arrive at a settlement, this judgment shall not stand in the way of the same. M.N.KRISHNAN,JUDGE. mns