IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 26TH JUNE 2008 / 5TH ASHADHA 1930 RPFC.No. 45 of 2008() --------------------- MC.93/2006 of FAMILY COURT, KALPETTA .................... COUNTER PETITIONER : ------------------------- SABU, S/O.FRANCIS, AGED 30 POTHUMOOLA, PATTARMADATHIL, THIRUVELLI P.O. THIRUNELLI AMSOM AND DESOM, MANANTHAVADY TALUK. BY ADV. SRI.MATHEW KURIAKOSE RESPONDENTS: PETITIONERS --------------------------------- 1. BINDU, D/O.KARIYAN, AGED 22 YEARS KUNDARA ADIYA COLONY, P.O.PANAVALLY THIRUNELLI AMSOM, DESOM. 2. NAVYA, D/O.BINDU, 4 YEARS (MINOR) (REPRESENTED BY MOTHER AND NATURAL GUARDIAN BINDU, 1ST RESPONDENT) THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 26/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ----------------------------------------------- R.P.(FC) No. 45 OF 2008 ----------------------------------------------- Dated this the 26th day of June, 2008 O R D E R The petitioner in this RP(FC) assails an order passed by the Family Court under Section 125 Cr.P.C obliging him to pay maintenance at the rate of Rs.750/- per mensem to the 2nd claimant, the child of the 1st claimant. 2. The claim of the 1st claimant for maintenance was rejected as there was no clear evidence or even pleading in support of any formal legal marriage between the 1st claimant and the petitioner. She asserted that the petitioner had sexual intercourse with her under circumstances which rendered the act of sexual intercourse, a rape and that the 2nd claimant was conceived in such sexual relationship of the 1st claimant with the petitioner. A prosecution was launched under Section 376 IPC also. In that prosecution it was urged that even accepting the case of PW1, the alleged sexual intercourse could not have been a sexual intercourse without consent or against her will. That plea was accepted and the petitioner was found not guilty and acquitted. Before the learned Judge of the Family Court there was only the evidence of R.P.(FC). No. 69 OF 2008 2 1st claimant as PW1 and denial evidence of petitioner as CPW1. Ext.B2 judgment rendered by the Sessions Court in the rape case, as also Exts.B1 and B3, the certified copies of the depositions of the 1st claimant and her mother in that prosecution were also marked. Both sides had agreed to get the DNA test conducted. But no steps were taken by either to get such test conducted. In these circumstances, the learned Judge of the Family Court proceeded to pass the impugned order holding that the 2nd claimant child is entitled to get maintenance from the petitioner. 3. Learned counsel for the petitioner submits that satisfactory evidence to prove that the petitioner is the father of the illegitimate child born to PW1 has not been placed before court. The burden is heavy on the claimant to prove such paternity and in the facts and circumstances of this case, such requisite evidence has not been made available before the Family Court. The counsel submits that though both sides had offered to undergo the DNA test, no steps were taken in this direction by either. 4. The learned counsel submits that the petitioner is now R.P.(FC). No. 69 OF 2008 3 willing to get a DNA test conducted at his expense and an opportunity may be granted to the petitioner to get such test conducted. The learned counsel for the petitioner submits that in view of the said offer to get the test conducted at his expense, the petitioner may not be compelled to make any payment towards the maintenance of the child till result of such test is obtained and the matter is disposed of afresh by the Family Court. The counsel further prays that if the petitioner ultimately succeeds in the proceedings before the Family Court, his right to claim cost may also be reserved. 5. In the light of the very fair offer made by the learned counsel for the petitioner, I do not want to embark on any further discussions on the disputed question. The DNA test, it is by now trite, is scientifically cogent and acceptable and can help the court considerably to decide the disputed question of paternity and appreciate the evidence of the parties better. 6. In the result: a) This RP(FC) is allowed in part. b) The impugned order is set aside on condition that the R.P.(FC). No. 69 OF 2008 4 petitioner shall, at his expense, take all necessary steps to get the DNA test conducted to ascertain whether he is the biological father of the 2nd claimant born to the 1st claimant. c) The petitioner shall not be obliged to make any interim payment of maintenance until the matter is disposed of afresh by the Family Court. But, it is directed that if ultimately the 2nd claimant child were found to be entitled for maintenance, the direction for payment of such maintenance shall take effect from the date of the petition. d) If the steps are not taken as directed to get the DNA test conducted at his expense within the time prescribed or within such further time that the Family Court may give, the Family Court shall record that fact and thereupon the impugned order shall revive. e) The petitioner shall appear before the Family Court on 28.07.08. On or before that date or within 10 days of such appearance all necessary steps to get the DNA test conducted shall be taken by the petitioner at his expense. Deposit of the amounts required shall be made within such time R. BASANT, JUDGE ttb R.P.(FC). No. 69 OF 2008 5 R.P.(FC). No. 69 OF 2008 6 R.P.(FC). No. 69 OF 2008 7