SHIBU M DANIEL Vs. DIANA T GEORGE

JUDGEMENT

(1.) In this Original Petition under Article 227 of the Constitution of India, the petitioner seeks the following reliefs:

(2.) As regards the 2nd relief, when the report of the scientific expert was obtained through court with due notice to the parties, unless that report is found unreliable or not acceptable, opposite party cannot be compelled to undergo a further test, that too in a petition under Article 227 of the Constitution. Going by Exhibit P-1, to establish the paternity by DNA typing evidence, the blood samples of the petitioner, the 1st respondent and the child were taken and DNA test was conducted. The petitioner would allege illicit relationship between the 1st respondent and the 2nd respondent. In the event, the blood sample taken from the petitioner is substituted with a blood sample of the 2nd respondent, manipulation can not be ruled out. But that is a matter for evidence. Mere allegation of manipulation would not be a substitute for evidence. Therefore, to set aside Exhibit P-1 and to refer the 1st respondent and the child for a second test, evidence is to be taken before setting aside Exhibit P-1 and to establish that the manipulation alleged is true.

(3.) In denying paternity, the plea of the petitioner is non-access to the 1st respondent on the date of conception. According to the petitioner, he went abroad in October, 2005 and thereafter, he returned only on 1-5-2007. The child was born on 18-1-2008. If the period of pregnancy is counted from 1-5-2007 up to the date of confinement it would come to 263 days. On a survey of the various tests in Clinical Obstetrics, including that one published by Orient Longman, I find that the average duration of pregnancy is 266 days from conception and 280 days from the first date of the last menstrual period in women with 28 days cycles. If the cycle is longer or shorter an adjustment should be made in calculating the Estimated Date of Confinement (EDC). As per the Nagele's rule, to calculate the EDC seven days is to be added to the 1st day of the Last Menstrual Period (LMP) and count back three months. If a leap year intervenes only six days shall be added. It is also opined that only a small percentage of patients will deliver on EDC. Most (60 per cent) will deliver during the period extending from 7 days before or seven days after the EDC. In this case, if the date of conception is taken as 1-5-2007 or within a few days after the return of the petitioner and the date of confinement is calculated, there is every possibility for having the 1st respondent conceived from the petitioner after his return from abroad and having delivery of a full grown baby because the date of delivery is on the 263rd day from the 1st date of access. Therefore, on a mere plea of non-access and plea of manipulation in Exhibit P-1, Exhibit P-1 report can not be interfered and the 1st respondent cannot be asked to go for a second test. Incidentally, I have gone through the photograph of the petitioner and the child contained in page No. 7 of Exhibit P-1. The child appears to be a miniature of the petitioner. In the above circumstances, I find that it would be too harsh to ask the 1st respondent to undergo a further DNA test on a non established plea of manipulation. Therefore, 2nd relief is also not allowable. I find lack of bona fides in this petition.