IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 25TH SEPTEMBER 2008 / 3RD ASWINA 1930 RPFC.No. 231 of 2008() ---------------------- MC.24/2006 OF THE FAMILY COURT, KALPETTA. .................... REV. PETITIONER(S): PETITIONERS/PETITIONERS ------------------------------------------- 1. LEELA, D/O. ONAKKAN, AGED 30, KAPPIPADY COLONY, PARAKKEDAVU.P.O, PODICHIRA AMSOM DESOM, S. BATHERY TALUK. 2. DEVI, AGED 7 (MINOR), -DO- REP. BY MOTHER AND GUARDIAN, IST PETITIONER. BY ADV. SRI.G.GOPALAKRISHNAN NAIR (EDAPPALLY) RESPONDENT(S): RESPONDENT/COUNTER PETITIONER -------------------------------------------- PRADEP, S/O. NARAYANANKUTTY, KUDILIL VEEDU, PARAKKADAVU P.O. PODICHIRA AMSOM DESOM, S. BATHERY TALUK. ADV. DR.GEORGE ABRAHAM FOR R1 THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 25/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- R.P.(FC) No. 231 of 2008 ------------------------------------------------- Dated this the 25th day of September, 2008 ORDER The petitioners are the claimants in a proceedings under Sec.125 Cr.P.C. before the Family Court. They claimed maintenance at the rate of Rs.2,000/- per mensem. The claim was turned down in so far as both the claimants are concerned. The claimants have now come before this Court to challenge that order. 2. In the course of arguments before me, the learned counsel for the petitioners submits that the 1st petitioner is, at any rate, not entitled to claim maintenance inasmuch as no legal marriage is asserted or established. But it is submitted that the 2nd claimant/child is entitled for maintenance. The DNA test report could not be proved before the court below. At the Bar, it is submitted that the respondent is willing to get R.P.(FC) No. 231 of 2008 -: 2 :- the DNA test conducted afresh at his expense. In these circumstances, there is an agreement that the impugned order can be set aside and the learned Judge of the Family Court, Kalpetta, can be directed to dispose of the matter afresh after giving the parties an opportunity to adduce further evidence. It is further directed that the respondent shall take all necessary steps to get the DNA test conducted afresh at his expense failing which appropriate adverse inference shall be drawn against the respondent. 3. In the result: (a) This RP(FC) is allowed. (b) The impugned order is set aside. (c) The learned Judge of the Family Court, Kalpetta, is directed to dispose of the matter afresh in accordance with law after giving the parties an opportunity to adduce further evidence, if any. (d) The parties are directed to appear before the Family Court on 3/11/08. (e) The respondent shall take all necessary steps to get the DNA test conducted afresh to resolve the controversy regarding the paternity of the 2nd petitioner. Such steps shall be taken after appearance before the Family Court within the time R.P.(FC) No. 231 of 2008 -: 3 :- stipulated by the Family Court. If no such steps are taken, necessary adverse inference shall be drawn against the respondent and the petition under Sec.125 Cr.P.C. shall be disposed of afresh. 4. Hand over a copy of this order to the learned counsel for the petitioners for production before the learned Judge of the Family Court, Kalpetta. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge R.P.(FC) No. 231 of 2008 -: 4 :-