IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 24TH AUGUST 2009 / 2ND BHADRA 1931 RPFC.NO. 127 OF 2009() ---------------------- MC.95/2008 OF FAMILY COURT, KOZHIKODE .................... REVISION PETITIONER/PETITIONER -------------------------------------------------- VISHNU (MINOR), REPRESENTED BY MOTHER SREEJA, D/O.CHOYYAN, KAPPUMMAL, PERUTHOTTATHIL VEEDU, MENHANNIAM, PERAMBRA POST, KOZHIKODE DISTRICT. BY ADV. SRI.K.P.SUDHEER RESPONDENT(S): RESPONDENT --------------------------------------------- BABU, S/O.ACHUTHAN, CHIRUTHA KUNNUMMAL VEEDU, MENHANNIAM, PERAMBRA POST, KOZHIKODE DISTRICT. ADV. SRI.MANJERI SUNDERRAJ FOR R1 SMT.K.K.PREETHA FOR R1 THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 24/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = R.P(FC) NO.127 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 24th day of August, 2009 O R D E R -------------- Heard counsel on both sides. 2. This revision is in challenge of the order dated 11.12.2008 in M.C. No.95 of 2008 of the Family Court, Kozhikode. Petitioner, represented by his mother sought maintenance from respondent stating that respondent is the father of petitioner. Respondent denied paternity. Petitioner’s mother gave evidence as P.W1 and proved Exts.A1 to A3. Respondent gave evidence as R.W.1 and proved Exts.B1 to B8. Learned Judge, Family Court found that there is no proof regarding paternity of petitioner and dismissed the petition. Petitioner is aggrieved and has come up in revision. It is contended by learned counsel that petitioner filed C.M.P. No.1368 of 2008 in the court below requesting for DNA test to prove paternity of petitioner, that petition was dismissed as belated but in the impugned order it is stated that petitioner did not take any steps to prove paternity. Learned counsel states that petitioner belonged to the Schedule Caste and that at the time he filed C.M.P. No.1368 of 2008 himself and mother were unable to raise necessary funds to meet the expenses RP(FC) No.127 of 2009 -: 2 :- for such test, now they have managed to arrange funds and meet the expenses. Learned counsel requested that petitioner may be given an opportunity to prove paternity. Learned counsel for respondent submitted that there is no acceptable evidence for access between mother of petitioner and respondent. It is also submitted that evidence given by P.W.1, mother of petitioner is totally unreliable and hence DNA test at this belated stage is not required or warranted. 3. Case set up by mother of petitioner is that there was some transaction between her and respondent and consequent to that intimacy developed between her and respondent. That ultimately led to P.W.1 conceiving from the respondent and giving birth to petitioner. Petitioner produced Exts.A1 to A3. Exhibit A1 is the birth certificate of the petitioner wherein respondent is shown as his father and name of the father given corresponds to the name of respondent. P.W.1 stated that at the time she started affair with respondent she was not aware that respondent was married. To disprove that, respondent produced Exts.B1 to B4. Those documents are produced to show that mother of P.W1 transferred property to respondent. It is argued by learned counsel that in that transaction P.W1 had also occasion to meet mother of petitioner and that P.W1 is aware that respondent was married. RP(FC) No.127 of 2009 -: 3 :- 4. It is seen from paragraph 8 of the impugned order that learned Judge has observed that petitioner has not taken steps to prove paternity. But actually petitioner had filed C.M.P. No.1368 of 2008 requesting for DNA test. It is true in that petition there was a prayer that DNA test may be conducted free of costs since P.W.1 was then not able to raise necessary funds. That application was dismissed by Annexure-A1, order stating that petition is not proper and belated. It is not as if petitioner had not taken any steps to prove paternity attributed to respondent. Having regard to the facts and circumstances I am inclined to think that petitioner could be given an opportunity to pursue his remedy as stated in C.M.P. No.1368 of 2008. Learned counsel states that petitioner is agreeable to meet necessary expenses. In view of that and considering the nature of contentions I think it appropriate to send the case back to the court below for fresh disposal after giving opportunity to the petitioner to pursue the test requested in C.M.P. No.1368 of 2008. Resultantly, this revision petition is allowed. Order under challenge and the order on C.M.P. No.1368 of 2008 are set aside. Civil Miscellaneous Petition No.1368 of 2008 is allowed. Case is remitted to the court below for fresh disposal after giving opportunity to both sides. Court below is directed to pass appropriate follow up RP(FC) No.127 of 2009 -: 4 :- orders for DNA test prayed for in C.M.P. No.1368 of 2008. Petitioner shall meet the necessary expenses for the same. Parties shall appear in the court below on 15.10.2009. THOMAS P.JOSEPH, JUDGE. vsv