IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL &

THE HONOURABLE MRS. JUSTICE C.S. SUDHA THURSDAY, THE 7^TH DAY OF SEPTEMBER 2023 / 16TH BHADRA, 1945 OP (FC) NO. 419 OF 2023 AGAINST THE ORDER/JUDGMENT IN OP 1472/2017 OF FAMILY COURT,KOLLAM ORIGINAL PETITIONER/RESPONDNET:

JOSEPH I., AGED 46 YEARS, S/O ISSAC, KATTUVALIL HOUSE, MANARKAD, KOTTAYAM, PIN - 686019 BY ADVS.

GEORGE VARGHESE(PERUMPALLIKUTTIYIL)

NIMESH THOMAS SREELAKSHMI R.NAIR MANU SRINATH RESPONDENT/PETITIONER:

SHALINI S., AGED 35 YEARS, W/O I. JOSEPH, SARANYA BHAVANAM, MUKHATHALA P.O., KURUMANNA, THRIKKOVILVATTOM VILLAGE, KOLLAM, PIN - 691577 BY ADV S.SREEKUMAR (KOLLAM)

THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 07.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

AMIT RAWAL & C.S.SUDHA, JJ.

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O.P.(FC) No.419 of 2023 ---------------------------------------------------- Dated this the 7^th day of September, 2023

J U D G M E N T

Amit Rawal, J.

The present petition is directed against the order dated 8/5/2023 passed in I.A.No.2/2023 in the pending O.P.No.1472/2017 preferred by the respondent seeking a declaration that she is the lawful wedded wife of the petitioner.

2. In O.P.No.1472/2017 it has been alleged that on 18/09/2009 the customary marriage between the respondent and the petitioner was conducted at Kurunnattukonam Bhadrakali Temple, Mukkathala and on the same day, marital rites were also performed at a Church near Railway Station, Chinnakkada. Parties lived together, but on 20/04/2014, the petitioner herein parted the company of the respondent herein and a child was born during the said association. During the pendency of the aforementioned petition, the respondent submitted I.A.No.2/2023 and also placed on record Exts.A1 to A4, i.e., the copy of consent deed, birth certificate of the child, the vaccination certificate of child, family card and two cheques to prima facie establish that there was some relationship between the parties. In order to prove the said assertion, prayer was made in the I.A. for directing the petitioner/respondent before the trial court to conduct a DNA test, to ascertain the paternity of the child.

3. Learned counsel appearing on behalf of the petitioner, in support of the averments made in the petition, has raised the following submissions:

i) Any party approaching the court for seeking declaration, has to prove the case in accordance with law as the onus of burden of proof heavily relies upon, as per the provisions of Section 101 of the Indian Evidence Act.

ii) The documents, Exts.A1 and A4 have not been proved in accordance with law as they have been tendered.

iii) Petitioner has disputed those documents.

iv) No evidence has been led to prima facie establish that there was some cohabitation or a lawful marriage.

v) In the absence of discharge of burden, it could not have been rebutted, much less proved in accordance with law.

All these factors are required to be taken into consideration by the trial court before entertaining an application much less if the impugned order is allowed to sustain it would have very far reaching consequences.

4. In support of the aforementioned contention reliance has been laid to the judgment of the Supreme Court in Aparna Ajinkya Firodia v.

Ajinkya Arun Firodia, 2023 KHC 6155

6. On the other hand, the learned counsel appearing on behalf of the respondent countered the arguments and submitted that as per Ext.P6, a complaint was launched by the actual wife of the petitioner to the police station with regard to forcible abduction of the petitioner by the respondent. However, the police on enquiry found that there was no such incident. The cheques and the other documents are testimony to prove that there was some relationship between the parties. No harm and prejudice would be caused in case the petitioner undertakes the test of DNA as the cat would be out of the bag and urged this Court for dismissal of this original