Kerala High Court
Shibu M.Daniel vs Diana T.George
THE 16TH DAY OF MARCH 2012
OP(Crl.).No. 3935 of 2011 (Q)
Citation: 2012CriLJ4276, ILR2012(3)Kerala172,
2012 (2) KHC 619, 2012(3)KLT706
In this original petition under Article 227 of the Constitution of India, the petitioner seeks the following reliefs:
i) to call for returns from the Family Court regarding the postings of the case if found necessary and proper and see whether it had acted within its boundaries of the authority and in sending the blood for a fresh DNA test and obtain a fresh unbiased report about the paternity of the child/2nd respondent.
ii) require the Court to send a sample of blood of the parties for DNA test in a laboratory either at Bangalore or Hyderabad and obtain a report or such other or further reliefs which is just and necessary in the interest of justice.
iii) Cost of the proceedings.
2. Having heard, I find that the petitioner is the husband of the 1st respondent. The marriage was on 22/8/2005 at St. Andrew's CSI Church, Kollakkadavu, Alappuzha. A child was born on 18/1/2008. Alleging that the petitioner is not providing any maintenance to the 1st respondent and child, she preferred a petition as M.C.70/2010 before the Family Court, Alappuzha underSection 125 of the Code of Criminal Procedure. The petitioner took a defence disputing the paternity of the child. The petitioner and the respondent were sent for DNA test to Rajeev Gandhi Centre for Biotechnology. Accordingly, Exhibit P1 DNA typing report was obtained. The result is against the petitioner. Exhibit P1 is now under challenge. The plea of the petitioner is that Exhibit P1 was manipulated by the 1st respondent with the connivance of an employee in the laboratory. The allegation is denied by the 1st respondent. Therefore, without taking evidence, it is not possible to decided such dispute in this petition under Article 227 of the Constitution. Petitioner is not entitled to the first relief. If the petitioner is serious with his allegation he has to establish the same before the court below which is empowered to set aside the same in the event the petitioner could establish his allegation of manipulation.
3. As regards the 2nd relief, when the report of the scientific expert was obtained through court with due notice to the parties, unless that report is found unreliable or not acceptable, opposite party cannot be compelled to undergo a further test, that too in a petition under Article 227 of the Constitution. Going by Exhibit P1, to establish the paternity by DNA typing evidence, the blood samples of the petitioner, the 1st respondent and the child were taken and DNA test was conducted. The petitioner would allege illicit relationship between the 1st respondent and the 2nd respondent. In the event, the blood sample taken from the petitioner is substituted with a blood sample of the 2nd respondent, manipulation can not be ruled out. But that is a matter for evidence. Mere allegation of manipulation would not be a substitute for evidence. Therefore, to set aside Exhibit P1 and to refer the 1st respondent and the child for a second test, evidence is to be taken before setting aside Exhibit P1 and to establish that the manipulation alleged is true.
4. In denying paternity, the plea of the petitioner is non-access to the 1st respondent on the date of conception. According to the petitioner, he went abroad in October 2005 and thereafter, he returned only on 1/5/2007. The child was born on 18/1/2008. If the period of pregnancy is counted from 1/5/2007 up to the date of confinement it would come to 263 days. On a survey of the various texts in Clinical Obstetrics, including that one published by Orient Longman, I find that the average duration of pregnancy is 266 days from conception and 280 days from the first date of the last menstrual period in women with 28 days cycles. If the cycle is longer or shorter an adjustment should be made in calculating the estimated date of confinement (EDC). As per the Nagele's rule, to calculate the EDC seven days is to be added to the 1st day of the last menstrual period (LMP) and count back three months. If a leap year intervenes only six days shall be added. It is also opined that only a small percentage of patients will deliver on EDC. Most (60 per cent) will deliver during the period extending from 7 days before or seven days after the EDC. In this case, if the date of conception is taken as 1/5/2007 or within a few days after the return of the petitioner and the date of confinement is calculated, there is every possibility for having the 1st respondent conceived from the petitioner after his return from abroad and having delivery of a full grown baby because the date of delivery is on the 263rd day from the 1st date of access. Therefore, on a mere plea of non-access and plea of manipulation in Exhibit P1, Exhibit P1 report can not be interfered and the 1st respondent cannot be asked to go for a second test. Incidentally, I have gone through the photograph of the petitioner and the child contained in page No. 7 of Exhibit P1. The child appears to be a miniature of the petitioner. In the above circumstances, I find that it would be too harsh to ask the 1st respondent to undergo a further DNA test on a non established plea of manipulation. Therefore, 2nd relief is also not allowable. I find lack of banafides in this petition.
5. In the result, this petition is dismissed, but with liberty to the petitioner to file a petition for setting aside the report, if grounds are available, and referring the parties for a second report. If such a petition is filed, the trial court shall dispose of the same on merits and appropriate follow-up procedures shall be ordered.
6. It is submitted by the learned counsel for the 1st respondent that the petition for interim maintenance is pending, not disposed because of the dispute of the paternity and that the intention of the petitioner is to protract the proceedings. Having due regard to the facts and circumstances of the case, I direct that the petitioner shall pay a sum of Rs.10,000/- as a lumpsum amount for the past interim maintenance and continue to pay interim maintenance at the rate of Rs.2,500/- per month towards the maintenance of the 1st respondent and the child till the disposal of MC. If MC is allowed, the payment as above is liable to be adjusted towards the maintenance amount. If dismissed, the respondents are entitled to adjust it towards their costs. The trial court is directed to dispose of MC as expeditiously as possible.
Sd/-
P.S.GOPINATHAN JUDGE
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