IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 4TH MARCH 2010 / 13TH PHALGUNA 1931 RPFC.No. 190 of 2005() ---------------------- MC.318/2004 of FAMILY COURT, MANJERI .................... REVISION PETITIONERS:PETITIONERS: ------------------------------------------------------------ 1. CHENADAN SOUDA, AGED 25, D/O. KUKNHAMMED, P.O. PANG SOUTH,CHENADAN HOUSE, PERINTHALMANNA TALUK. 2. FASNA, MINOR DAUGHTER, 2 YEARS, (MINOR REVISION PETITIONER IS REPRESENTED BY GUARDIAN MOTHER FIRST REVISION PETITIONER). BY ADV. MR.K.P.MUJEEB RESPONDENT(S): RESPONDENTS: ---------------------------------------------------- THANITHODI MOIDEEN, S/O.AHAMMED, AGED 43, THANITHODI HOUSE, P.O. SOUTH PANG, PERINTHALMANNA TALUK. BY ADVS. MR.M.R.SUDHEENDRAN, MR.SURAJ.S., MR.JAMES ABRAHAM (VILAYAKATTU). THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 04/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.N. KRISHNAN, J. ........................................... R.P.(F.C).No.190 OF 2005 ............................................. Dated this the 4th day of March, 2010. O R D E R This revision is preferred against the order of the Family Court, Manjeri in M.C.No.318/2004. A petition for maintenance on behalf of the minor child is filed by the mother against the respondent in the MC. Admittedly the respondent is not the husband of the first petitioner in the MC. The allegation is that the respondent had forcibly committed rape on her and a child is born on account of the same and therefore, she is entitled to claim maintenance. 2. On the other hand, the respondent would totally deny the connection between him and the first petitioner. One fact which is admitted is that they are neighbours. The respondent is a married person with three children. The first petitioner also is a married person and her matrimonial relationship is in subsistence even on the date of examination. It is submitted by the first petitioner that she had obtained a decree for maintenance against her husband. But except her mere ipsi dixit allegations, there : 2 : R.P.(F.C).No.190 OF 2005 is nothing to prove the same. On her motion, the court below was pleased to allow the DNA test. The respondent had interest in undergoing the DNA test but the petitioner did not go which resulted in non-conduct of the DNA test. 3. So, the best possible medical and scientific evidence that could be procured was not obtained on account of the non co-operation of the first petitioner. I am not deciding the case on the ground that just because she has not gone, an adverse inference has to be drawn but for the purpose of highlighting the improbabilities in the case. If a person intrudes into the privacy of another house wife and commits rape, I do not feel that anybody will wait for more than four months to file a complaint against that person and further as noted by the family court, the date of the alleged sexual act is not revealed at the first point of time. So, the conduct is very suspicious. 4. Secondly, the matrimonial relationship is in subsistence for the wife. When a matrimonial relationship is in subsistence, there is a presumption under the Evidence Act to prove the legitimacy of the children unless non access is : 3 : R.P.(F.C).No.190 OF 2005 proved. Merely stating that I have obtained an order of maintenance orally, will not be a substitute to prove non access. So, the conduct of the petitioner in not undergoing the DNA test, her refusal to tender any positive evidence to prove the non access of the husband and belated submission to initiate the case after a period of four months etc are suspicious circumstances which is fatal to the case of the first petitioner. It is true that in the birth certificate, the name of the father is shown as Moideen. It has to be remembered that there is no case that it has been supplied by the respondent. If the first petitioner has supplied it, it is only after she had moved an application for action against him for the alleged offence of rape. So, I find from these materials that the family court had analysed the matter only in the proper perspective and had arrived at a decision. 5. The learned counsel would contend before me that an opportunity may be given to undergo the DNA test now. It has to be remembered that other person had been put into hardship by moving an application and he had responded to the orders of the court and it may not be correct on the part : 4 : R.P.(F.C).No.190 OF 2005 of the court to go on directing a person to the rigour of a DNA test. The petitioner has to blame herself for her conduct and at this stage I do not want to give an opportunity for that. Therefore the revision lacks merit and the same is dismissed. M.N. KRISHNAN, JUDGE cl : 5 : R.P.(F.C).No.190 OF 2005