Writ petitioner challenged the Family Court order dismissing his petition to implead the child's father. DNA tests confirmed petitioner as the biological father. High Court upheld lower court order, finding totality of evidence including mother's opinion sufficed and psycho-testing of the other spouse remained feasible.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE &
THE HON'BLE MR. JUSTICE P.D.RAJAN
WEDNESDAY, THE 20TH DAY OF FEBRUARY 2013/1ST PHALGUNA 1934
WP(C).No. 22709 of 2008 (S)
AGAINST THE ORDER/JUDGMENT IN C.M.P.NO.489/2008 IN MC.51/2006 of FAMILY COURT, KASARAGOD DATED 10-06-2008
PETITIONER(S):
GEORGE KUTTY, S/O THOMAS, NIJALLANIYIL HOUSE, ANAKKAL POST KANJIRAPPALLY VILLAGE, KANJIRAPPALLY TALUK KOTTAYAM DISTRICT.
BY ADV. SRI.ELVIN PETER P.J.
RESPONDENT(S):
1. SEENA THOMAS,W/O BIJU MUPPATHIYIL, KOTTODY POST, KALLAR VILLAGE, HOSDURG TALUK KASARGODE DISTRICT.
2. MARIA GEORGE, AGED 5 YEARS,
3. BIJU MUPATHIYIL, KOTTODY POST, KALLAR VILLAGE, HOSDURT TALUK, KASARGODE DISTRICT.
R,R3 BY ADV. SRI.T.B.SHAJIMON R,R1 & 2 BY ADV. SRI.T.K.VIPINDAS
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 22709 of 2008 (S)
APPENDIX
PETITIONER'S EXHIBTS
EXT.P1: COPY OF THE AFFIDAVIT AND PETITION FILED BY THE PETITIONER BEFORE THE FAMILY COURT, KASARAGOD DT 28-3-2008.
EXT.P2: COPY OF THE ORDER DT. 10-6-2008 IN CMP NO.489/2008 IN M.C. NO.51/2006 PASSED BY THE FAMILY COURT, KASARAGOD.
RESPONDENTS' EXHIBTS: NIL.
TRUE COPY
PA TO JUDGE.
acd
PIUS.C. KURIAKOSE &
P.D. RAJAN, JJ.
W.P.(C)No. 22709 of 2008
Dated this the 20th day of February, 2013
JUDGMENT
Pius.C. Kuriakose, J.
Under challenge in this writ petition filed under Article 227 by the petitioner, who is arrayed as the 1st respondent in M.C.No.51/2008 filed by respondents 1 and 2, is Ext.P2 order. Ext.P2 order is an order dismissing C.M.P.No.489/2008 filed by the writ petitioner. The prayer in the C.M.P. was that the 3rd respondent, who is the husband of the 1st respondent be impleaded as an additional respondent in the M.C. According to the 1st respondent, the father of the 2nd respondent is none other than the writ petitioner. The writ petitioner, however, strongly disputed the paternity of the 2nd respondent. The parties underwent a DNA test. The result of the test was that the writ petitioner was found to be the biological father of the 2nd respondent. According to the writ petitioner, the child was born to the 1st respondent during the subsistence of her marriage to
W.P.(C)No.22709/08 2
the 3rd respondent. Hence, there is a presumption that the 3rd respondent is the father of the child. The 3rd respondent should be subjected to DNA test. For doing that, the 3rd respondent should be impleaded. Under Ext.P2, the learned Family Court has dismissed the petition for impleading giving cogent reasons. It is found that the opinion of the child's mother is that the writ petitioner is the child's father. It is also found that the DNA test had revealed that the writ petitioner is the father of the child. Finally, the court below found that the DNA test will only be one of the items of evidence. The issue of paternity will be decided on the basis of the totality of the evidence adduced by the parties. Observing that, if the writ petitioner believes that he is not the biological father of the child notwithstanding the DNA test result, the writ petitioner is free to prove his case and the DNA test will not come in his way.
According to us, the writ petitioner need not have any legitimate grievance regarding Ext.P2. We enquired of the learned counsel for the 3rd respondent whether after the entire evidence is recorded in the M.C., the court feels that it is necessary to subject the 3rd respondent to DNA test, whether
W.P.(C)No.22709/08
3
the 3rd respondent will co-operate with the same. The answer was in the positive.
We dispose of this writ petition sustaining Ext.P2.
PIUS.C.KURIAKOSE,JUDGE
P.D. RAJAN, JUDGE.
acd
W.P.(C)No.22709/08 4
3 issues framed by the court
Whether the Family Court order dismissing the petition to implead the husband as an additional respondent in a minor custody matter should be set aside.
Whether the writ petitioner's plea of non-paternity requires further DNA testing of the other spouse.
Whether the Family Court correctly relied on the mother's opinion and initial DNA results to reject the impleading petition.
GEORGE KUTTY
SEENA THOMAS
MARIA GEORGE
BIJU MUPATHIYIL
PIUS C.KURIAKOSE
P.D. RAJAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
