IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 1ST JANUARY 2009 / 11TH POUSHA 1930 RPFC.No. 48 of 2004(A) ---------------------- MC.692/1999 of FAMILY COURT, MANJERI .................... REVISION PETITIONER/RESPONDENT ------------------------------------------------ BHAGAVATHI KAVUNGAL MUHAMMEDALI, S/O. ALAVI HAJI, VEERASSERI HOUSE, KODAKKALLU P.O., CHULLIPPARA. BY ADV. SRI.K.P.MUJEEB RESPONDENT(S): PETITIONERS -------------------------- 1. ERAPPARAMBAN SAINABA, D/O. MUHAMMEDKUTTY, PALAKKAL HOUSE T.C.ROAD, TIRURANGADI AMSOM DESOM, P.O.TIRURANGADI, TIRURANGADI TALUK. 2. NISHAD, 8 MONTHS (MINOR), S/O.MUHAMMEDALI BHAGAVATHI KAVUNGAL. (MINOR PETITIONER/RESPONDENT REPRESENTED BY HIS MOTHER & GUARDIAN 1ST RESPONDENT SAINABA). ADV. SRI.T.KRISHNAN UNNI (SR.) FOR R1 & R2 THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 01/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ R.P.F.C. No.48 of 2004 ------------------------------------- Dated this the 1st day of January, 2009 ORDER Petitioner in this revision petition assails an order passed under Section 125 Cr.P.C obliging him to pay maintenance @ Rs.500/- per mensem to the 2nd petitioner. 2. Marriage between the mother of the claimant/minor and the petitioner is admitted. That the claimant/minor was born during the currency of the matrimony between the spouses is also admitted. The husband took up a plea that he was employed abroad and there was no opportunity of access for him to his wife/mother of the claimant at the relevant time when the child could have been conceived. Parties went to trial on these contentions. The mother of the claimant examined herself as PW1. Ext.P1 birth certificate was produced and marked. That shows the petitioner to be the father of the child. The petitioner was not available to tender evidence. He examined his father as RW1 to prove his theory of non access. 3. The learned Judge of the Family Court initially found that the conclusive presumption of paternity under Section 112 of the Evidence Act has not been dislodged at all and proceeded to pass an order granting maintenance to the claimant/child. R.P.F.C. No.48 of 2004 2 4. That order was challenged before this Court and by a detailed order dated 27.10.03 in R.P.F.C No.26 of 2001, that petition was allowed and an indulgent further opportunity was granted to the petitioner herein to substantiate his plea of non access and also to make a renewed application to get the D.N.A test conducted. 5. The petitioner appeared before the learned Magistrate on 10.12.03 as per the directions issued in the Crl.R.P. Thereafter the case was posted to 12.12.03, 15.12.03, 17.12.03, 20.12.03, 17.01.04 and 19.01.04. No further evidence whatsoever was adduced by the petitioner. His renewed application to get the D.N.A test conducted was rejected by the learned Judge of the Family Court on the ground that no better evidence was adduced to prove non access. In these circumstances, the learned Judge of the Family Court proceeded to pass the impugned order granting maintenance @ Rs.500/- per mensem. 6. The petitioner claims to be aggrieved by the impugned order. What is the grievance ? According to the petitioner it must have been held that he is not the father of the claimant/child. The child was begotten in some illicit relationship of the mother of the child. According to him he had R.P.F.C. No.48 of 2004 3 returned to India only on 05.09.96 and the child was born on 02.04.97. Birth of the child on 02.04.97 is not disputed. But the claimants did not admit that the husband was not available in India till 05.09.96. This Court, by the detailed order in R.P.No.26 of 2001, had permitted the petitioner to adduce evidence to show that he was not available in India at the relevant time, ie. till 05.09.96. Even after remand, the petitioner did not tender any further evidence. He did not produce his passport in support of his assertion that he was not available in India till 05.09.96. He however filed a fresh application to get the D.N.A test conducted. The learned Judge of the Family Court took the view that no better materials have been produced to justify a further direction to get the D.N.A test conducted. 7. The question is whether the conclusive presumption of paternity under Section 112 of the Evidence Act is dislodged by the petitioner. Though sufficient indulgent opportunities were granted as per the order in R.P.No.26 of 2001, for inexplicable and obscure reasons the petitioner has not chosen to adduce any further evidence. Even the passport has not been produced. The petitioner did not examine himself or any other persons in support of his assertion that he was not available in India till 05.09.96. In these circumstances I am certainly of the R.P.F.C. No.48 of 2004 4 opinion that the petitioner has not discharged his burden under Section 112 of the Evidence Act. 8. The petitioner re-agitates his grievance that the D.N.A test has not been conducted. In a case where the presumption under Section 112 of the Evidence Act applies, it is not necessary for a court ordinarily to direct conduct of a D.N.A test. Of course when the burden under Section 112 of the Evidence Act is attempted to be discharged satisfactorily, depending on the facts and circumstances of each case, a D.N.A test can certainly be directed to be conducted. But a D.N.A test cannot be ordered to be conducted in respect of a child born in a valid matrimony lightly. Sufficient circumstances must be shown to exist to justify a direction for conduct of a D.N.A test. In the instant case there is absolutely nothing produced to show that the husband was not available in India till 05.09.96 and therefore he could not have been responsible for the pregnancy of the child delivered on 02.04.97. The petitioner, it is very evident, has grossly and completely failed in not placing any material before the learned Judge of the Family Court to persuade the Court to conclude that the burden to discharge the presumption under Section 112 of the Evidence Act has been discharged. R.P.F.C. No.48 of 2004 5 9. Less said about the grievance of denial of opportunity to get a D.N.A test conducted, the better. As already indicated, a conclusive presumption under Section 112 of the Evidence Act can be successfully rebutted by satisfactory evidence of non access. When non access is otherwise indicated by the evidence available on record, such evidence of non access can be confirmed and established beyond controversy by evidence of a D.N.A test which can show that the child is not the biological child of the husband of the woman. At any rate lightly and for asking, an opportunity to get a D.N.A test conducted cannot be granted; more so in a case where the conclusive presumption under Section 112 of the Evidence Act holds the field and the burden is heavily on the alleged father to prove non access under Section 112 of the Evidence Act. 10. I do not, in these circumstances, find any merit in the challenge raised against the invocation of the presumption under Section 112 of the Evidence Act and the conclusion that the presumption remains unrebutted. I do not also find any merit in the contention that the petitioner has been improperly refused the advantage of a D.N.A test. I do not also find any merit in the contention that the petitioner has not been given adequate opportunity to adduce all his evidence before the Family Court R.P.F.C. No.48 of 2004 6 after remand. Sufficient opportunity has been given to the petitioner. The petitioner was taken to the water though it is true that he refused to drink. I find no merit in the contention that the petitioner may be given the luxury of a yet another opportunity to adduce evidence. 11. It may not be inapposite in this context to note that the nature, quality and impact of a finding regarding paternity in a proceedings under Section 125 Cr.P.C. Courts exercising jurisdiction under Section 125 Cr.P.C do not finally and authentically resolve the disputed questions of status. An order passed under Section 125 Cr.P.C may at worst only cast a shadow on the status of the parties and by instituting appropriate civil proceedings the aggrieved party can seek a declaration to erase the effect of the cloud on the status. The option of the petitioner to initiate appropriate proceedings before the civil court for declaration of his status shall remain unfettered by the dismissal of this R.P.F.C. 12. This R.P.F.C is, in these circumstances dismissed. (R.BASANT, JUDGE) rtr/-