Kerala High Court Sisu Bhavan vs Joy Yohannan on 24 June, 2008
Kerala High CourtSisu Bhavan vs Joy Yohannan on 24 June, 2008 IN THE HIGH COURT OF KERALA AT ERNAKULAM Crl.MC.No. 2957 of 2007() 1. SISU BHAVAN, ... Petitioner Vs 1. JOY YOHANNAN, AGED 37 YEARS, ... Respondent 2. STATE OF KERALA, For Petitioner :SRI.P.GOPAKUMARAN NAIR For Respondent :SRI.LIJI.J.VADAKEDOM The Hon'ble MR. Justice V.RAMKUMAR Dated :24/06/2008 O R D E R V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * Crl.M.C. No. 2957 of 2007 & Crl. Revision Case No. 3 of 2008 * * * * * * * * * * * * * * * * * * Dated: 24-6-2008 ORDER
This Crl.M.C. has been filed by Sisu Bhavan, Sisters of Nazareth, which is an Orphanage recognized as per Annexure A certificate issued by the Central Adoption Resource Agency, Ministry of Social Justice and Empowerment, Government of India for submission of applications to competent Courts for declaration of foreigners as guardians of Indian children under the Guardians and Wards Act,. 1890.
2. Taking the cue from the prosecution allegation in S.C. 41 of 2007 pending before the Addl. Sessions Court (Adhoc-I), Kottayam to the effect that a child was born pursuant to the commission of the offence of rape on the 28 year old victim by the accused (Joy Yohannan) and punishable under Sec. 376 I.P.C., the accused filed Crl.M.P. 1405 of 2007 before the trial court at the stage of defence evidence for a direction to the person in custody of the child to produce the child before the Director of Rajeev Gandhi Centre for Bio-Technology, Thiruvananthapuram for the purpose of subjecting Crl.M.C. No. 2957 of 2007 & the child as well as the victim and the accused to a DNA test. As per order dated 20-8-2007 the learned Addl. Sessions Judge allowed the application and issued a direction to the petitioner herein namely, the Sisu Bhavan, Sisters of Nazareth to produce the child for the purpose of subjecting the child to D.N.A. test.
3. The petitioner orphanage entered appearance before the Sessions Court and informed the court that the child in question had already been placed in local adoption and that the details of the adoptive parents of the child cannot be divulged in view of the decision of the Apex Court in Lakshmi Kant Pandey's case reported in AIR 1984 SC 469, AIR 1986 SC 272 and AIR 1987 SC 232. However, it appears that the Sessions Court was not inclined to entertain the objection raised by the Orphanage which necessitated the present Crl.M.C. filed by the Orphanage. During the course of consideration of the Crl.M.C. this Court took note of the fact that in a rape trial the question of paternity of the child was totally irrelevant and since the order passed by the Sessions Court was not questioned by the State this Court initiated suo motu Revision against the said order. That is how Crl.R.P. 3 of 2008 came to be registered before this Court.
4. I heard the learned counsel appearing for the parties referred to above as well as the Public Prosecutor. Crl.M.C. No. 2957 of 2007 &
5. The fact in issue in a rape trial is as to whether there was sexual intercourse as against the will and without the consent of the victim in the case who had at the relevant time crossed the age of 16 which is the age of consent and if the sexual intercourse was with the consent of the victim, then whether the consent was obtained under circumstances falling under clauses thirdly, fourthly and fifthly of Sec. 375 I.P.C. Merely because there was an allegation by the prosecution that pursuant to the sexual intercourse which the accused had with the victim a child was born, a question of paternity of the child which has absolutely no nexus with the alleged offence of rape, cannot arise. Whether the accused is proved to be the biological father or not was wholly irrelevant with regard to the fact in issue in the trial before the Court of Addl. Sessions Judge. Hence, the Sessions Judge was wrong in allowing D.N.A. test for considering the paternity of the child as prayed for by the accused. By directing the petitioner institution to produce the child, the Sessions Court was virtually flouting the directions of the Apex Court in Lakshmikand Pande's Case referred to above since absolute secrecy regarding the whereabouts of the child has to be maintained not only by the Orphanage but also all concerned. The impugned order dated 20-8- 2007 passed by the Addl. Sessions Judge (Adhoc - I), Kottayam Crl.M.C. No. 2957 of 2007 & allowing Crl.M.P. No. 1405 of 2007 is accordingly set aside. That court shall immediately proceed to complete the trial and dispose of the case. The lower court records shall be re-transmitted to the court below immediately. The accused shall appear before the Sessions Court without any further notice on 7-7-2008.
Crl.M.C. 2957 of 2007 and Crl.R.C. 3 of 2008 are allowed as above.
Dated this the 26th day of June 2008.
V. RAMKUMAR, (JUDGE) ani.