PATHUKALA SAKKARIYA Vs. SALMAN FARIS

JUDGEMENT

(1.) Respondent is served but there is no response. This Original Petition is in challenge of Ext. P9, order passed by the learned Munsiff, Kotthuparamba on I.A. No. 580 of 2010 in O.S. No. 170 of 2008.

(2.) That is a suit filed by the respondent, represented by his mother as next friend for a declaration that petitioner is his biological father and for consequential reliefs. Case of respondent is that petitioner subjected his mother to forcible sexual intercourse on 7.3.2001 and in that incident he was begotten. There was a criminal case against petitioner in connection with the said incident which ended in acquittal of petitioner as evidenced by Ext. P3, judgment under S. 235(1) of the Code of Criminal Procedure. That proceeding, I am told, has become final. While so, respondent filed M.C. No. 380 of 2003 in the Family Court, Kannur claiming maintenance from petitioner. There, I am told that a DNA test of petitioner and respondent was conducted but it went against the respondent. Exhibit P4 is the report where it is stated that the DNA test performed on the exhibits provided was sufficient to conclude that the source of Exhibit C (petitioner) is not the biological father of the source of Exhibit B (respondent). The order in M.C. No. 380 of 2003 was challenged in this Court in a Civil Revision. It is submitted that this Court left the issue regarding paternity of respondent open to be decided in a suit. It is accordingly that the issue again came up for consideration in the suit. Respondent filed I.A. No. 580 of 2010 for conducting a DNA test. That application was resisted by petitioner on various grounds including what is stated above. Learned Munsiff by Ext. P9, order allowed the application holding that DNA test is necessary to decide the question of paternity. Learned Munsiff was of the view that if the earlier DNA test was properly conducted and if the test is again conducted, no prejudice will be caused to the petitioner. Learned Munsiff also took the view that so far as the suit is concerned, request for DNA test came for the first time (though in the M.C. proceedings a DNA test was conducted and adverse report was obtained). Learned Munsiff referred to the decisions in Sunil v. Leelavathi,2006 3 KerLT 13 (C.No. 21) and Ramakrishnan v. Ramadas,2010 1 KerLT 38 (C.No. 48) and concluded that since the case of mother of respondent is that she had no sexual intercourse with anybody other than petitioner, it is necessary to conduct a DNA test. So holding the application was allowed.

(3.) It is contended by learned counsel that on the facts and circumstances, request for DNA ought not to have been allowed. According to the leaned counsel there is already a report on DNA test available in M.C. No. 380 of 2003 and unless it is shown that the said report is not correct, there is no scope for calling for a second report. It is contended that without at least prima facie evidence of truth of allegations made by the respondent, petitioner ought not to have been ordered to undergo another DNA test.