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IN THE HIGH COURT OF KERALA AT ERNAKULAM
M.R.ANITHA, J.
Abhilash R. Nair, S/o. Rajendran Nair N – Appellant
Versus
Sreebha P.S. – Respondent
OP(Crl.) No. 169 of 2021
Decided on : 17-12-2021
Protection of Woman from Domestic Violence Act, 2005 – Section 12 - Sections 18, 19, 20 and 22 - Seeking DNA test for proving the paternity of the 2nd respondent – No evidence to prove the marriage - whether any interference is called for in the impugned order passed by the Magistrate directing the petitioners and respondents to appear before the authorized officer of Rajive Gandhi Centre for Bio Technology for DNA test.
Finding of the Court:
Courts should always be cautious in making an innocent child from being bastardized if his mother and spouse were living together during the time of conception even if the result of DNA test is found to be against mother and child. In the present case, the petitioner is stoutly denying of having had any contact at all with the first petitioner and totally denying the case of the petitioners - Court was emphasizing duty of the court in safeguarding the future of the child by ordering such test mechanically at the instance of father who denies the paternity of the child. It would also lay down a principle that such directions should be made if it is in the interest of the child while determining the question whether subjecting a person to a medical test is violative of Article 21 of Constitution of India. The right to privacy in terms of Article 21 of the Constitution of India is not an absolute right -it would become absolutely necessary to order DNA test to find out the truth regarding the paternity of the second petitioner. So the impugned order passed by the learned Magistrate is perfectly in order.
Result: Petition dismissed
JUDGMENT :
1. This Original Petition has been filed against the order in C.M.P.No.6667/2019 in M.C.11/2017 on the file of Judicial First Class Magistrate Court -III, Kottayam. Petitioner herein is the counter petitioner in C.M.P.6667/2019 in M.C.No.11/2019. M.C has been filed under Section 12 of the Protection of Woman from Domestic Violence Act, 2005 (in short the Act) seeking reliefs under Sections 18, 19, 20 and 22 of the Act.
2. CMP.6667/2019 has been filed by respondents 1 and 2/petitioners 1 and 2 in M.C. seeking DNA test for proving the paternity of the 2nd respondent. Petitioner filed objection, but according to him, without considering the objection the learned Magistrate allowed the petition. Aggrieved by the said order, petitioner/respondent approached this court.
3. Notice was issued to the respondents. Respondents 1 and 2 appeared through Adv.Suresh Joseph. 3Rd respondent appeared through Public Prosecutor, Sri.Sangeeth Raj.N.R. Heard both sides. Counter affidavit was also filed by the 1st respondent.
4. Parties would be referred as per their status before the lower Court. (Petitioner herein would be referred as the respondent, and respondents 1 and 2 as the petitioners).
5. The facts in the CMP as revealed from the impugned order is that marriage of the first petitioner and the respondent was solemnized on 15.9.1999 in a Temple in Andhra Pradesh. Out of their wedlock, second petitioner was born on 22.8.2000. In 2006, respondent married another woman. It is also alleged that the respondent harassed the petitioner both mentally and physically and did not provide maintenance to the petitioners and committed domestic violence against the petitioners.
6. Respondent filed objection contending that the petition is not maintainable. Paternity of the 2nd petitioner has been disputed. The respondent denied to have any relationship with the petitioners. According to him, there is no evidence to prove the marriage. There is no prima facie material to prove that the respondent is the father of the 2nd petitioner. If the petition is allowed it will affect the privacy of the respondent. Hence he sought for dismissal of the petition.
7. The only point for determination is whether any interference is called for in the impugned order passed by the Magistrate directing the petitioners and respondents to appear before the authorized officer of Rajive Gandhi Centre for Bio Technology for DNA test.
8. According to the counsel for the respondent, petitioner was posted in MD FD (Modified Field) at Ratan Chowk, Jammu and Kashmir at the time of alleged marriage. No service men who are posted in MD FD, will be granted leave during the alleged period due to Kargil war. Service men posted in MD FD will not be granted accommodation facility to his family since the posting was in battle field. So the contention of the first petitioner that the respondent married the first petitioner on 15.9.1999 and resided with him in military quarters is totally false. He never resided with the first petitioner. Without considering the above aspect, directing the petitioner to undergo DNA test, would amount to interfering with the personal liberty of the respondent. No document has been produced to prove the alleged marriage. It is also his contention that as per military service rules, a service officer who is above the age of 25 years and is married, is eligible for allotment of military accommodation from the Ministry of Defence Pool when he is posted on permanent strength of Service Headquarters and inter-service organizations, provided his family is residing with him. At the time of alleged marriage, petitioner was only 23 years and hence was not eligible for obtaining military quarters.
9. The learned counsel for the respondent brought to my attention Ext-P4 and P5 to contend about the impossibility of any marriage between the first petitioner and the respondent on the date when the marriage alleged to have been solemnized. Ext.P4 is the medical Board proceedin
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