Allowed

Tintu Poulose v. Kurian John

Kerala HC7 Jul 2021OP (FC)/192/2021

Case brief

AI extract

What is this about?

The High Court of Kerala allowed a petition challenging an order dismissing a prayer for a DNA test to establish paternity. The High Court set aside the lower court order, stating the application was liable to be allowed and the matter must be disposed of on merits post-report.

What did the court decide?

Extent P4 order dated 11.2.2021 set aside; Ext.P3 application allowed; Family Court to dispose of the original petition on merits after receiving DNA report.

Tintu Poulose Vs Kurian John — Child Custody and Guardianship | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE

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THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH WEDNESDAY, THE 7^TH DAY OF JULY 2021 / 16TH ASHADHA, 1943 OP (FC) NO. 192 OF 2021

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I.A.NO.823/2021 IN OP 130/2020 OF FAMILY COURT,ERNAKULAM PETITIONER/PETITIONERS:

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1 TINTU POULOSE, AGED 31 YEARS W/O. ARUN VELAYUDHAN, KARIPPASSERI HOUSE, PULIYANAM P.O. ERNKAULAM, 683 572.

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2 ARUN VELAYUDHAN, AGED 29 YEARS S/O. VELAYUDHAN. K.K, KARIPPASSERI HOUSE, PULIYANAM P.O. ERNKAULAM, 683 572.

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3 MARCUS JOHN KURIAN , (MINOR), AGED 2 YEARS AND 5 MONTHS S/O. TINTU POULOSE, REPRESENTED BY HIS MOTHER, TINTU POULOSE, KARIPPASSERI HOUSE, PULIYANAM P.O. ERNAKULAM 683 572.

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BY ADVS. P.T.MOHANKUMAR SRI.GEORGE CHERIAN

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O.P.(FC).No.192/2021

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RESPONDENT/RESPONDENT:

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KURIAN JOHN AGED 29 YEARS S/O. JOHN KURIAN, NEDUMPARAMBIL HOUSE, MARIYAPPALLY P.O. KOTTAYAM 686 013.

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BY ADVS. SMT.R.S.REJITHA SMT.R.HEMA (IYER).

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THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 07.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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O.P.(FC).No.192/2021

J U D G M E N T

Dated this the 7^th day of July, 2021

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Dr.Kauser Edappagath, J.

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Ext.P4 order passed by the Family Court, Ernakulam dismissing the application to send the parties for DNA paternity test is under challenge in this original petition. The 1^st petitioner is the wife of the 2^nd petitioner. The respondent is the former husband of the 1^st petitioner. The marriage between the 1^st petitioner and the respondent was dissolved by a decree of divorce on 30.03.2019. Even before that, the 1^st petitioner and the 2^nd petitioner were living together and the 3^rd petitioner was born in the said relationship on 13.08.2018. Since the 3^rd petitioner was born during the subsistence of the marriage between the 1^st petitioner and the respondent, the petitioners have filed O.P.NO.130/2020 before the Family Court for a declaration that the 3^rd petitioner is the son of the 2^nd petitioner.

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In order to prove the paternity of the 3^rd petitioner,

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the petitioners have moved an application as Ext.P3 before the

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O.P.(FC).No.192/2021

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court below to conduct a DNA paternity test to prove that the 2^nd petitioner is the biological father of the 3^rd petitioner. The court below as per Ext.P4 order dismissed the said petition with the following observation:

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“Not opposed by the respondent. Heard the petitioner. This court is not clothed with any obligation to send the parties for DNA test. It is for them to have the test got conducted on their own by approaching the authorities and to produce the result before court to canvas for the relief prayed for.

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So this petition is dismissed without prejudice to the petitioner's right to get the DNA test conducted at their own initiative by approaching the authorities directly for which no fiat of this court is needed.”

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The said order is under challenge in this original petition.

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Heard both sides.

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The learned counsel for the respondent submitted that

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he has no objection in sending the parties for DNA test. It appears that the respondent admits that the 2^nd petitioner is the biological father of the 3^rd petitioner. Order XXVI Rule 10 A of the CPC empowers the court to conduct any scientific investigation. Under Section 45 of the Indian Evidence Act, 1872, the report of the scientific expert is relevant. To adjudicate the question of paternity, it is necessary to conduct

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O.P.(FC).No.192/2021

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the DNA test. It is to be done under the order of the Court. Hence, the court below ought to have allowed Ext.P3 application.

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For the reasons stated above, we are of the view that Ext.P3 application is liable to be allowed. Accordingly, we set aside Ext.P4 order dated 11.2.2021 of the Family Court, Ernakulam. Ext.P3 application shall stand allowed. After receiving the DNA test report, the court below shall dispose of the original petition on merits in accordance with law.

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This original petition is disposed of.

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Sd/-

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A.MUHAMED MUSTAQUE JUDGE

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sd/-

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DR. KAUSER EDAPPAGATH JUDGE

kp True copy

P.A. To Judge

O.P.(FC).No.192/2021

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APPENDIX OF OP (FC) 192/2021

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PETITIONER ANNEXURE

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EXHIBIT P1 TRUE COPY OF ORIGINAL PETITION NO. 130/2020 ON THE FILE OF HONBLE FAMILY COURT, ERNAKULAM. EXHIBIT P2 TRUE COPY OF NO OBJECTION AFFIDAVIT DATED 21.01.2021 FILED BY THE RESPONDENT BEFORE HONBLE FAMILY COURT, ERNAKULAM. EXHIBIT P3 TRUE COPY OF APPLICATION I.A. NO. 823/2021 ON THE FILE OF HONBLE FAMILY COURT, ERNAKULAM. EXHIBIT P4 TRUE COPY OF THE ORDER DATED 11.02.2021 IN I.A. N. 823/2021 OF HONBLE FAMILY COURT. EXHIBIT P5 TRUE COPY OF THE RELEVANT PAGE OF THE BROCHURE OF RAJIV GANDHI CENTRE FOR BIOTECHNOLOGY, THIRUVANANTHAPURAM.

Tintu Poulose v. Kurian John

Case brief

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Tintu Poulose v. Kurian John

Case brief

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