HILAL BABU Vs. SINDHU @ LINTA

JUDGEMENT

(1.) Challenging the order dated 16.7.2013 in I.A.No.3646 of 2013 in O.S.No.186 of 2011 on the file of the III Additional Munsiff's Court, Ernakulam, the petitioner/defendant came up with this petition under Article 227 of the Constitution of India.

(2.) The impugned order was passed in the said application at the instance of the respondent/plaintiff for getting DNA profile of the respondent/plaintiff so as to ascertain her parentage. Her allegation is that she is the daughter born to the defendant in his wedlock with deceased Rosamma. Rosamma was a person belonged to Christian community and the defendant is a person belong to Muslim community. Originally, an application was filed before the Family Court for the said purpose. Later on, the parties were directed to exhaust their remedy before the civil court. As such, the present suit was instituted. Though the application for getting DNA profile was filed prior to the starting of trial it was considered by the trial court only after taking evidence of some of the witnesses cited by the respondent/plaintiff and after satisfying that there is a prima facie case in favour of the respondent/plaintiff. The learned counsel for the petitioner/defendant canvassed the attention of this Court into Ext.P4 judgment in Mat.Appeal No.432 of 2012, wherein in paragraph 5 there is an observation with respect to the legality of the marriage alleged to have been solemnized in between the mother of the respondent/plaintiff and the petitioner/defendant. It is only a casual observation and the question yet to be considered by the trial court in the instant suit.

(3.) The main challenge focused by the learned counsel for the petitioner is that the lower court while allowing the application had not taken into consideration the existence of a prima facie case in favour of the respondent and took support from the decision rendered by the High Court of Andhra Pradesh in Devu Gopal Lunani v. Siva Gopal Lunani and another (AIR 2014 Andhra Pradesh 29) . As discussed earlier, the case advanced by the respondent is that she is the girl child born to Rosamma with the petitioner and the petitioner is her biological father. Even in the case of failure to establish legality of the marriage in between late Rosamma and the petitioner/defendant, the claim of the respondent/plaintiff would succeed if it is proved otherwise. So, what is to be looked into is the question of existence of factors supporting the case advanced by the respondent/ plaintiff claiming her parentage with the petitioner/defendant and not the question of legality of the marriage between her mother and father. At this juncture, it has to be borne in mind that when there is a legal marriage and if a child is born during the subsistence of the marriage, a presumption is available that the child is born to the couple. In short, there cannot be any interference with the finding of the lower court regarding existence of a prima facie case in favour of the respondent/plaintiff. An application for getting DNA profile is a matter of adducing evidence and it shall not be curtailed unless there is compelling reasons. Further, it is not fit and proper to set aside the order of the lower court rendered on the basis of evidence on record by exercising jurisdiction under Article 227 of the Constitution of India. Hence, the petition deserves only dismissal and I am doing so.