IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 14TH JANUARY 2010 / 24TH POUSHA 1931 RPFC.No. 218 of 2008() ---------------------- AGAINST THE ORDER IN MC.35/2007 of FAMILY COURT KALPETTA .................... REVISION PETITIONER (S):COUNTER PETITIONER: --------------------------------------------------------------------------- M.C.THOMAS, S/O. DEVASYA, MATTOOR VEEDU, VAKERY P.O., BAHERY TALUK WAYANAD DIST BY ADV. SRI.SARVOTHAMAN RESPONDENT(S): RESPONDENTS: ------------------------------------------------ SACHIN, AGED 10 YEARS, (MINOR) REPRESENTED BY MOTHER AMMINI, 36 YEARS MANJALAMKAITHA VEEDU, VAKERY P.O. WAYANAD DISTRICT ADV. SRI.JOSE KURIAKOSE (VILANGATTIL) FOR R1 SRI.JOSEPH A.VADAKKEL FOR R1 SRI.GEORGE KARITHANAM VARGHESE FOR R1 SRI.V.J.JOHN FOR R1 THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 14.01.2010 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N.KRISHNAN,J. ====================== R.P.(F.C) No.218 OF 2008 ====================== Dated this the 14th day of January 2010. JUDGMENT This revision is preferred against the order of maintenance passed by the Family Court, Kalpetta in M.C.No.35/07. Admittedly the mother of the petitioner is not married to the husband. It is the case of the mother of the petitioner that with a promise to marry her, the respondent in the petition had sexual intercourse with her on account of which she became pregnant and had given birth to the petitioner and therefore the counter petitioner is in the maintenance case is the father of the child liable to maintain the child. On the contra the husband would contend that he had no access or relationship with the lady and he did not have any sexual act with the lady and the minor is not born to him through the mother of the petitioner. Therefore, the whole question depends upon the paternity of the child. The question of presumption under Section 112 of the Evidence Act would not be available in this case for the reason that there must be marriage and there must be subsistence of marriage . R.P.(F.C) No.218 OF 2008 2 There is a presumption unless non access is proved. In the absence of any marriage the presumptive provision may not be made use of to determine the case. Then the best evidence is the scientific evidence which could be done by conducting a DNA test. The mother of the boy had expressed her willingness to undergo a DNA test. So if the revision petitioner also is prepared to undergo the same, then there must be a scientific finding on the question whether the revision petitioner is a biological father of the child. For that an opportunity to enable the revision petitioner also to undergo DNA test can be given. Therefor order of the Family Court is set aside and the case is remitted back to the Family Court with a direction to one of the parties to move application for DNA test and pass appropriate orders on the same and then direct the parties to undergo DNA test, So that scientific data can be gathered. Thereafter parties be permitted to adduce evidence in support of respective contentions for and against DNA test even, and then dispose of the matter in accordance with law. Parties are directed to appear before the Family Court in 22.2.2010. R.P.(F.C) No.218 OF 2008 3 If possible let the matter to be disposed of within 4 months from the first appearance of the parties. M.N.KRISHNAN,JUDGE. mns