K.M. Joseph J.,

The petitioner is the respondent in M.C. No.135 of 2011, which was filed before the Family Court, Ernakulam by two children, who are twins represented by their mother. They filed the petition invoking Section 125 of Code of Criminal Procedure and Section 7(1) Explanation (f) of the Family Courts Act, 1984 (hereinafter referred to as 'the Act'). The prayer is one for maintenance.

2. Briefly put the case of the respondents before the Family Court is as follows. The petitioner herein was a business associate of the earlier husband of mother of the respondents. The petitioner prevailed upon the respondents' mother by making her believe that there is no valid marriage between her and her husband and he may desert the respondents' mother etc. Thereafter the petitioner showed deep affection and love towards the respondents' mother and started caring for the respondents' mother very much and looking after her affairs very keenly. Believing the petitioner's words, it is stated, that the petitioner is a bachelor and millionaire with lucrative business having branches in foreign countries, the petitioner and the mother of the respondents were living as husband and wife without the knowledge of the husband of the respondents' mother. Thus, the two twin children were born. There is a refusal by the petitioner to meet the requirements and expenses of the respondents since October 2010 despite demand. The maintenance claimed by the respondents is at the rate of Rs.25,000/-each per month.

3. Ext.P2 is the counter affidavit filed by the petitioner. He denied the allegations. Ext.P3 is the petition filed by the respondents with a prayer to refer the petitioner for D.N.A. test to ascertain whether the petitioner is the biological father of the respondents/children. It appears that no counter affidavit is filed against it and the Family Court, by Ext.P6, which is impugned before us, ordered as follows:

"Heard both sides. Petition is filed for sending the petitioner/husband and the minor children whose names mentioned herein, for DNA test to prove that whether the petitioner himself is the biological father of the said children. No objection is seen filed. But it is argued that same petition has been filed in a declamatory suit before the Sub Court, Ernakulam and it is pending under consideration. Except that, no other serious objection is received by the respondent/ petitioner in O.P. Considering the reason that the paternity of the children in question, I feel that the petition need be allowed in the ends of justice. I do so.

Hence, this M.P. stands allowed. Take further steps to conduct the D.N.A. test in Rajeev Gandhi Institute of Science and Technology. Remit the fee within two weeks. The petitioner/mother will produce the children for the purpose, as and when required. Call on 3.2.2012"

4. We heard learned counsel for the petitioner.

5. Learned counsel for the petitioner would impugn the order on the ground that the M.C. itself is not maintainable before the Family Court. According to him, on the very allegations found in the petition filed by the respondents, they are the children born to the petitioner out of illegitimate relationship during the marriage between the respondents' mother and another. Therefore, according to him, the petition itself is not maintainable before the Family Court. Learned counsel for the petitioner would refer us to the judgment of the Apex Court reported in Renubala Moharana and another v. Mina Mohanty and others (2004(4) SCC 215) and also judgment rendered by the Division Bench of this Court reported in Bharat Kumar v. Selma Mini and another (2007(1) ILR 696).

6. As far as the judgment of the Apex Court reported in Renubala Moharana v. Mina Mohanty is concerned, that was a case where the petitioner/appellant before the Apex Court had sought the following reliefs:

"(a) To declare that late Samuel Maharana, nicknamed as "Gulu" is the father of the minor child "Pupun" alias "Pallav Pr