BABU Vs. R. SUNIL KUMAR

JUDGEMENT

(1.) THIS original petition is filed challenging the impugned order passed in Crl. M.P. No. 102/14 in M.C. No. 42/13 on the files of the Family Court, Mavelikkara filed by the respondent herein. The respondent is a minor girl represented by her mother. The above M.C. was filed by the respondent herein claiming maintenance allowance from the petitioner herein under Section 125(1)(b) of the Cr.P.C. It is alleged in the M.C. that from September 1999 onwards the petitioner showed love and affection towards the mother of the respondent minor child, and they started to reside together from 1999 onwards till December 2000. While so, her mother became pregnant from the petitioner herein and the respondent herein was born on 23/10/2000. It is also alleged in the petition that till December 2000 the petitioner looked after the affairs of the respondent and her mother. Thereafter the petitioner has been neglecting the respondent and her mother and refusing to pay maintenance allowance to them. The respondent is legally entitled to get maintenance allowance from the petitioner under Section 125(1)(b) of the Code of Criminal Procedure. In the above premises, she filed the above M.C. claiming maintenance allowance @ Rs. 5,000/ - per month. The petitioner filed objection denying the paternity of the respondent and contended that the mother of the respondent had never been the wife of the petitioner. The said M.C. was filed without any bona fides and it is only an experimental exercise to defame the reputation and credibility of the petitioner in the society. It is the further case of the petitioner in the objection that the respondent's mother is the legally wedded wife of one Jayaprasad, and from 13/9/1990 onwards she has been leading a legally valid marital life with the said Jayaprasad and the respondent is the daughter born in the said wedlock with Jayaprasad. He emphatically denied the allegation that he has illicit relationship with the mother of the respondent. According to him, the said Jayaprasad is legally liable to maintain the respondent and the respondent has legal right to claim maintenance allowance from the said Jayaprasad only.

(2.) WHEN the mother was cross -examined during the course of evidence, a question was put to her as to whether she is ready to prove the alleged paternity of the child by submitting herself to DNA test, and she answered positively. In view of the denial of paternity in the objection and the above challenge during the cross -examination of the mother, the respondent herein filed Crl. M.P. No. 102/14, after the cross -examination of the mother with a prayer for directing the petitioner herein to submit himself to DNA test to prove her paternity. It was also submitted that the mother of the respondent is ready to meet all the expenses for conducting the DNA test at Rajiv Gandhi Centre for Bio -Technology, Thiruvananthapuram.

(3.) SRI . George Varghese Perumpallikuttiyil, the learned counsel for the petitioner, advanced arguments challenging the findings of the court below pointing out the rigour of legal presumption under Section 112 of the Indian Evidence Act. According to him, the DNA test on the application of the respondent is impermissible in view of the statutory legal presumption under Section 112 of the Indian Evidence Act. The sum and substance of the argument advanced by the learned counsel for the petitioner is that so long as a valid marriage is subsisting, the respondent has no right to seek a direction to the petitioner to submit himself for DNA test as the factum of valid marriage is conclusive proof of the legitimacy of the respondent under Section 112 of the Evidence Act. To fortify the said argument, the learned counsel cited the decisions in Banarsi Dass v. Teeku Dutta, : (2005) 4 SCC 449, Bhabani Prasad Jena v. Convenor Secretary, Orissa State Commission for Women and Another, : (2010) 8 SCC 633 and Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik and another, : (2014) 2 SCC 576.