Kanniammal vs State and K. Perumal

Arunachalam, J.

1 (a) The order to be pronounced today in this petition will have to be consolidated and take in its fold the orders already pronounced by this Court on 13/4/1989, 19/4/1989, 21/l989(sic) and 12/5/1989. Those orders narrate the detailed facts and further furnish information about the different stage of proceedings, on the directions of this Court, in this petition. Since those orders will be typed hereunder initially, repetition of facts and further details over again will be redundant.

(b) 13/4/1989:- The Petitioner Kanni-ammal as well as the second Respondent K. Perumal claim the custody of the five-year old girl called Lakshmi, according to the Petitioner, and named as Mary according to the second Respondent. Prima facie it appears that an enquiry will have to be made before entrusting the girl to the custody of either of them. In the meanwhile, it is brought to my notice that the minor girl is now in the custody of the police officials attached to Pazhavanthangal Police Station from 2/4/1989. This will not be in order.

(c) The learned Government Advocate has brought to my notice that on a nominal payment, the juvenile can be kept in Balamandir situate in G.N. Chetty Road, Teynampet, Madras. Since there is a scramble for the custody of the girl, I direct this minor girl, whatever be her name, be kept in Balamandir from now onwards till the disposal of this petition Since I do not want either of the claimants to pay for the stay of the juvenile in Balamandir, the first Respondent is directed to make payments for the stay of the juvenile, which, according to him, is possible from the funds of the Government. The first Respondent is directed to produce the minor girl before this Court on 17/4/1989 at 2:15 P.M. for enquiry.

(d) On 17/4/1989, when the first Respondent goes to Balamandir to bring the child to this Court, the authorities of Bala Mandir will entrust the child to his custody, for the said purpose.

(e) In the meanwhile it is brought to my notice by the learned Government Advocate that this morning in spite of the Judicial Magistrate, Saidapet, being informed about the pendency of the custody petition in this Court, had chosen to pass an order directing the handing over of the custody of the minor girl to one of the parties on the ground that there is no stay of his proceedings, by this Court. It was definitely brought to the notice of the Magistrate, as I understand now from the counsel, that he was informed that he cannot proceed with the matter since the custody is to be decided by this Court. The Judicial Magistrate, Saidapet, is directed to send a report to this Court as to the reason why he passed an order when the issue is pending in this Court and the said fact had been brought to his notice. Since the order of the Magistrate cannot be one in consonance with law, I stay the operation of the order said to have been passed by the Judicial Magistrate, Saidapet, this morning. The report of the Magistrate must reach this Court by a special messenger before 2 p.m. on 17/4/1989.

(f) 19/4/1989:- The Petitioner Kanniammal, wife of Adiveerarama Pandian, a resident of Madhavan Nagar, Madipakkam, Madras-91 has filed this petition u/s 482, Crl.P.C., seeking directions to the first Respondent who is the Sub Inspector of Police, B-2, Palavanthangal Police Station, to hand over the child Lakshmi to her since the recovery of the said child from the second Respondent K. Perumal of Neelapadi village in Thiruvarur Taluk, was in pursuance of the complaint of the Petitioner''s husband registered as Crime No. 235 of 1988 on the file of the sub Inspector of police B-2, Palavanthangal Police Station.

(g) Some facts are necessary for the disposal of this petition. The Petitioner claims to have married Adiveerarama Pandian eight years ago and three years thereafter, she gave birth to a twin. The twins were named as Thirurama Perumal and Lakshmi, at Sayalkudi, the place where she got married. She is now a permanent resident of Moovarasanpet, Madipakkam, Madras-91. One of the twin Lakshmi is the girl involved in this petition. According to the Petitioner, on 15-5-1988 Lakshmi was found missing and since the place of residence was within the jurisdiction of Palavanthangal police station, after a futile search for the girl, the Petitioner''s husband Adiveerarama Pandian preferred a complaint to the first Respondent, which as stated earlier was registered as Crime No. 235 of 1988, as a girl missing case.

(h) It is stated in the petition that on 15-3-1989 nearly ten months after the missing of the girl, Adhiveerarama Pandian, noticed the girl Lakshmi near Pallavaram Police Station with one kazhaikoothadi, namely Perumal, the second Respondent herein. Adiveerarama Pandian immediately informed the Pallavaram Police, who after enquiry coming to know that a crime had already been registered at Palavanthangal Police Station, handed over the second Respondent as well as the child Lakshmi to the first Respondent.

(i) The averment in the petition is that thereafter the first Respondent handed over the child Lakshmi to the Petitioner after interrogation of all parties concerned. It appears that a few days later the second Respondent was released by the first Respondent. On 17-3-1989, the Petitioner would state that, her husband was called to the police station at Palavathangal and his signatures were obtained in a paper where there was some written matter. To the understanding of the Petitioner''s husband, the contents were that this child was found by him in the company of a person, who on seeing him, ran away from the spot after abandoning the child. However it is stated in the petition that on 30-3-1989 the first Respondent obtained a statement from the second Respondent obtained due to political influence containing the averment that the girl handed over to the Petitioner was not Lakshmi but it was Mary, the daughter of the second Respondent. On 1-4-1989 the first Respondent directed Adiveerarama Pandian to produce the child Lakshmi for investigation. The child was accordingly produced and a similar production was made on 2-4-1989 at the instance of the first Respondent. On 2-4-1989 the Petitioner as well as the second Respondent were informed by the first Respondent that the child Lakshmi would be produced before the magistrate at Saidapet Court from whom either of them could obtain orders for the custody of the child.

(j) It appears that on 3-4-1989 the first Respondent produced the child before the Judicial Magistrate, Saidapet. The Petitioner as well as the second Respondent appear to have filed petitions for custody of the child and both the petitions have been numbered on 10-4-1989. The enquiry in these petitions was adjourned to 13-4-1989. However, the Petitioner, on 11-4-1989 filed this petition for directions and this Court on 12-4-1989 directed issue of notice to the Respondents. Since there was no application for stay of the proceedings in the trial Magistrate''s Court, stay was not ordered, but the counsel for the Petitioner and the learned Government Advocate were permitted to represent before the trial Court that the proceedings before the Magistrate need not be continued, in view of this Court having seized the matter for enquiry and disposal.

(k) Unfortunately the trial Magistrate appears to have made an order, in spite of the representation made to him by counsel for the Petitioner about the pendency of a similar application in this Court, in favour of one of the parties. That order has also been stayed by this Court. A report was called for from the trial Magistrate regarding the reason why an order was passed when it had been brought to his notice that proceedings were pending in this Court. The Magistrate has sent a report wherein he has stated that since neither the Assistant Public Prosecutor nor the Police Officer had brought to his notice about the pendency of the matter in this Court till after orders were pronounced by him, being completely unaware, he proceeded with the enquiry. Though the number of the petition filed in the High Court had been stated in the petition presented by the counsel for the Petitioner before the trial Magistrate which could have prompted the trial Magistrate in the event of any doubt, to have it verified, I am satisfied that the trial Magistrate had acted bona fide.

(l) Since I felt that the child should not be left in the custody of either of the contesting parties I directed the child to be retained at Bala Mandir till the disposal of this petition.

(m) On 17-4-1989 when this matter was taken up by me, Thiru M. Karpagavinaya-kam, learned Counsel for the Petitioner and Thiru M. Venkataraman, learned Counsel for the second Respondent put forth the inherent merits of their respective cases. Both of them seek to rely upon certain documents said to have been issued either by the doctor or the nurse when this child was born and treated. Again, similar sets of documents given by certain villagers are also in their possession to establish that the child belongs to their client. Mere documents without examination of the concerned witnesses will not provide any basis for arriving at a safe decision in this matter. Further, the question of guardianship or the custody of the child may have to be decided by a civil court after a detailed enquiry. This obviously is bound to take quite a length of time. It may not be advisable, in my view, to keep the child at Bala Mandir, for an indefinite length of time till the civil Court is able to take a decision.

(n) Learned Government Advocate represents that though Crime No. 235 of 1988 was initially closed as undetected, it was subsequently revived after the Court proceedings commenced again, and now the crime is under investigation. While investigation is thus pending, it will be quite plausible to pass orders of interim custody of the child if some safe basic material is available, pending final decision by a competent civil Court.

(o) Since it is alleged in the petition that Lakshmi is a twin born along with her brother Thirurama Perumal it becomes necessary to find out if scientifically it could be established that Lakshmi was born along with Thirurama Perumal to the Petitioner Kanniammal as claimed by her. It is contended before me that the blood test and tissue test of the twin children and the Petitioner may provide a link to establish the paternity. If prima facie, a conclusion could be reached on the paternity of the child by the blood and tissue tests, custody of the child could be handed over on this scientific basis, pending final decision by the civil Court. Therefore, it is necessary to direct Thirurama Perumal and Lakshmi as well as Kanniammal (Petitioner) and the Petitioner''s husband Adiveerarama Pandian, K. Perumal, the second Respondent and his wife Kali Ammal to be produced before the Board of Medical Science, Genetics Department, University of Madras at Tharamani for necessary tests being conducted and a report being forwarded to this Court. If the authorities concerned in the Board of Medical Science are of the view that it would be better to conduct blood test of the other child of the second Respondent and the third child of the Petitioner, they may do so. In that event, the first Respondent will cause production of these children also before the Board of Medical Science. The first Respondent is directed to take the child Lakshmi from Bala Mandir, permission for which is granted by means of this order, for her production before the Board of Medical Science at Tharamani to-morrow (20-4-1989) at 10 a.m.

(p) The Petitioner will appear along with her husband before the said Board at 10 a.m., to-morrow (20-4-1989) along with Thirurama Perumal. The Petitioner will also take her third child with her to the Board to facilitate any test being conducted on that child by the Board of Medical Science, if so desired. Similarly the second Respondent is directed to appear before the Board of Medical Science along with his wife Kali Ammal and their other child tomorrow (20-4-1989) at 10 a.m. for undergoing necessary tests.

(q) This course of directing blood and tissue tests is the outcome of the consent of both the counsel, since it may facilitate an early decision concerning interim custody of the child.

(r) The Board of Medical Science is requested to send its report directly to this Court so as to reach on 24-4-1989, indicating the paternity of Lakshmi in the light of investigations made by it. The Board is also requested to find out the age of the burn injury found on the head of Lakshmi.

(s) After the tests are over by the Board of Medical Science the first Respondent will take back the child Lakshmi to Bala Mandir and hand over custody till the final disposal of this petition.

(t) Post this petition on 25-4-1989. 21-4-1989:- (U) On 19-4 1989, I directed the Post Graduate Institute of Basic Medical Science, Tharamani, Madras-113, to carry out necessary tests to decide the paternity of the juvenile child Lakshmi. A communication dated 20-4-1989 has been received from the Head-in-charge of the Department of Genetics, stating that the tests could be started only on Monday, the 24th April, 1989, since time was needed to get materials prepared for the tests, and that the results will be available only fifteen days after the initiation of the tests. A reference has also been made that these tests may not be conclusive in a paternity dispute and a suggestion has been offered that the Director, Forensic Science Department, Kamaraj Salai, Madras, may be contacted for a comprehensive test on paternity. The Head in-charge of the Department of Genetics Post Graduate Institute of Basic Medical Science, Tharamani is requested to conduct the tests on 24.4.1989 and send the reports directly to this Court as soon as they are ready.

(u) 2. The Director of Forensic Science. Kamaraj Salai Madras, is requested to make a comprehensive test on the paternity of the child Lakshmi and send a report to this Court as soon as the same is available.

(v) 3. The Investigating Officer and the counsel for either party are directed to produce the juvenile Lakshmi and the respective claimants, as parents of the girl, before the Director of Forensic Science Department. Kamarajar Salai. Madras-4, on 25-4-1989 at 10 a.m. to facilitate necessary tests being conducted

(w) Post this petition on 12-5-1989 at 11 a.m. in my Chambers.

12-5-1989 (x) 1. The Director of the Forensic Science Department, Kamarajar Salai, Madras-4 has sent a requisition to this Court that further blood samples were required for conducting a few more tests and that a comprehensive report on the disputed parentage can be furnished to this Court before 30-5-1939 A decision could be taken only after the receipt of the report from the Director. The proceedings are adjourned to 1-6-1989. In the meanwhile the girl Lakshmi/Mary will be continued to be kept at Balamandhir.

1-6-1989:

The Head in charge of the Post Graduate Institute of Basic Medical Sciences, Tharamani, who was directed on 19/4/1989 to carry out necessary tests to decide parentage of Lakshmi/Mary and who undertook to do so, had expressed a view initially that the tests to be conducted by that Institute may not be conclusive in a paternity dispute and had offered a suggestion that the Forensic Science Department, Kamarajar Salai, Madras-4 could be directed to conduct comprehensive tests of paternity (vide order dated 21/4/1989). By an order dated 21/4/1989, I had directed both the Head in charge of the Post Graduate Institute of Basic Medical Sciences, Tharamani and the Forensic Science Department, Mylapore, Madras, to conduct necessary scientific tests to decide the paternity of Lakshmi/Mary. The tests were so directed to be carried out, since both the contesting parties through their counsel consented for such a course in the interests of justice and not to deprive the young child of the motherly affection, for a long time.

By his report dated 10/5/1989, the Head in charge of the Department of Genetics, Post Graduate Institute of Basic Medical Sciences, had expressed a comment (opinion) that based on the tests carried out at his department, the paternity of Lakshmi/Mary cannot be suggested. At this stage, it will be better to refer to the tests that had been conducted by this Institute. On the blood grouping ABO type performed not only on the questioned child but the disputed parents and the other children of the disputed parents, neither of the couples could be excluded as the parents of the child under dispute based on that data, for the blood group of the Petitioner was A1 and that of her husband was A1 B, while the blood group of Lakshmi/Mary was A1. The blood group of 2nd Respondent Perumal belonged to B group, while that of his wife Kaliammal was A1.

Rh grouping of the blood done by the said Institute indicated that all the individuals tested, possessed Rh positive antigen (D). Hence, from this data also, it was not possible to exclude any of the couples as parents of the child under dispute. The next test that was done by the Institute is headlined as Karyotype. The result is stated in the following words:-

The metaphases obtained from the cultured leucocytes of the individuals were examined. Absence of specific chromosomal markers precluded an affirmative decision on the paternity of Lakshmi/Mary.

This report of the Post Graduate Institute of Basic Medical Sciences is quite understandable in the light of the earlier view expressed by the Head in charge of the said Institute, because it was feasible for them to carry out only certain category of tests and and not all the tests which could conclusively decide the issue of paternity.

It was at that stage that the Director of Forensic Sciences Department, Mylapore, had requested further time from this Court to have some more tests conducted before a comprehensive report of the disputed parentage could be furnished (vide my order dated 12/5/1989).

Now, the Director of Forensic Sciences Department, Madras, has sent his report along with several annexures and his details of the tests done, which is marked as Ex.C-1, for the report of the Director of Forensic Science Laboratory will be admissible in any proceeding in view of the provisions of Section 293, Criminal Procedure Code. This report ends as follows:

On careful analysis of the results of each system, we are of the opinion that i) Tr. Adiveerarama Pandian and his wife Tmt. Kanniammal are found excluded from being the biological parents of the child ''Lakshmi'' vide Annexure 1.

ii) Tr. K. Perumal and his wife Tmt. Kaliammal are found to be the biological parents of the child ''Lakshmi'' vide Annexure 2.

A detailed perusal of the annexures which form part of this report clearly indicate that the following tests have been conducted.

i) Red Cell antigens

ii) Serum proteins

iii) Red Cell enzymes

These tests relate to the blood. As far as the saliva is concerned, secretor status, glyco protein and Amyl tests have been conducted. Last but not the least is the HLA system test, which ultimately has furnished definite information about the paternity and to quote again the words in the report.

The results of each test were carefully analysed and the inclusion/exclusion of parentage for the disputing parties were computed with the help of broad population distribution data for each system built up over the years and available with this department exclusively, for this purpose.

In the annexure to the report, a detailed insight to the tests done and the procedure followed has been narrated. Till this conclusive test was done on HLA type, it appears that a definite information could not be given, though faint details were available but ultimately, the confirmation of the parentage by the exclusion and inclusion tests is said to be 99.8% and 99.99% in respect of the father and mother respectively. This annexure categorically confirms that a definite final opinion was arrived at excluding one couple (Adiveerarama Pandian and Kanniammal) and including the other couple (Perumal and Kaliammal) as parents of the child. At this stage, it will be relevant to record the offer made by the Centre for Cellular and Molecular Biology, Hyderabad, India, by its Director Dr. P.M. Bhargava that in the event of the Court referring to it details of this disputed parentage case, they as a national laboratory, a constituent of C.S.I.R., would be gladly willing to perform what is called "DNA finger printing" to furnish information with certainty about the parentage of Lakshmi/Mary. This offer had been made on a perusal of the newspaper reports and it appears that there was a similar communication to the Forensic Science Department from the same laboratory. Before HNA typing could be done, the Forensic Science Department had deputed one of its scientists to have finger printing, as well, done. But now after the conclusive test of HLA typing has been done, in the words of Director of Forensic Science Department, the result of DNA finger printing will only be superfluous and shall not in any circumstances increase the chances of inclusion. While placing on record the appreciation for the offer made by the Centre for Cellular and Molecular Biology, I am of the view that in the light of the definite information offered by the Forensic Science Department, Madras, no further information would be necessary to decide the parentage of the disputed child, because certainty of parentage is now categoric by the contents of Ex. Cl.

At the same time, to understand the nature of tests conducted by the Laboratory and the exclusion and inclusion process, it is better that this order contains some details as this case appears to be the first of its kind in the recent times. The general information regarding the exclusion/inclusion details in case of parentage test is as follows:-

i) In disputed parentage cases, many well defined genetic systems such as ABO, Rh, MN Ss, Hp, C3, ESD, GLO, Secretor Status, Glyco protein, Amyl and HLA typing are utilised.

ii) The parties concerned are tested for various genetic systems starting from ABO system.

iii) Exclusion of parents of a child is arrived at in the following manner:-Suppose the father has a genetic marker O and the mother also has the same genetic marker and the child is found to have AB as its marker, automatically, the parentage of both these persons is excluded. However, when a genetic marker which is not present in the child, but is pre sent in the father and mother as stated above, another example may further clarify the position. Take the case of a father with a genetic marking of AB and the mother OO and the child also having its marking OO. In this instance, though the mother can pass on one ''O'' gene to the child, the other ''O'' gene could not have come from the father since he lacks the ''O'' gene. Similarly, if in the same case, the child were to have AB as its genetic marking, the father could have passed either A or B gene but still the parentage cannot be concluded, since the mother has neither ''A'' or ''B'' gene to pass on to the child. The tests that were carried out in the Forensic Science Department are eleven in number:-

1) ABO

2) Rh

3) MNS

4) C3

5) EsD

6) Hp

7) GLO

8) Secretor status

9) Glyco protein 10) Amyl

11) HLA typing-''A locus'', ''B locus'', ''C locus.''

In a given case wherein a couple claim a particular child, the alleged parents of the questioned child and the child will be first tested for ABO antigens. If the child be-longs to AB group and the alleged parents belong to O group, as stated earlier, they are excluded from being the parents of the child applying the exclusion rule detailed above. If exclusion is clear, as the outcome of the first genetic test itself, no further genetic test need be conducted. In this case, the testing of all the concerned individuals according to genetic systems 1 to 10 listed above, did give only a faint vision, not being sufficient to exclude other couple, but only definite conclusions were feasible after HLA typing was done. If on the material seen from the annexure dealing with HLA grouping, one couple is excluded, even then the inclusion of the other couple remained to be considered. To exactly evaluate, the chances of the "included couple" to be the parents of the questioned child, the Laboratory will have to work out the inclusion chances for each genetic system. The annexure to the report has given definite details of inclusion for each of the genetic systems and ultimately, the conclusion has been arrived at, that the percentage of cumulative inclusion chances of the 2nd Respondent and his wife (Perumal and Kaliammal) works out to 99.8% and 99.99%. On the basis of this report, which to my, mind, appears to be clinching on scientific basis, it is possible to order handing over of the child Lakshmi/Mary which probably could be henceforth called Mary, to the 2nd Respondent Perumal and his wife Kaliammal. The handing over of Mary could be immediately done, because the 2nd Respondent and his wife Kaliammal are present in Court now. At this stage, I am bound to make an observation that the child Lakshmi/Mary when she was brought before me in April, 1989, looked so shattered, but now, she, who is Mary, present before me, looks so fresh and healthy that the authorities of the Bala Mandir which had taken care of the child, must receive a word of appreciation from this Court. I must also at this stage express appreciation of the work done by the Forensic Science Laboratory, Madras and the Post Graduate Institute of Basic Medical Sciences, Tharamani, for having made it feasible to arrive at a conclusion on the parentage of this girl purely on scientific basis on the foundation of various tests that had been conducted in the course of several weeks, both the contesting parties having consented to such a course, which has ultimately advanced the cause of justice.

Through the trial Magistrate had earlier concluded on inadmissible material that this child should be handed over to the 2nd Respondent and his wife Kaliammal, that order will be non est now, since as far as the criminal Courts are concerned, my order will terminate the decision taking process of this paternity dispute.

Mr. N. Arumugam, learned Public Prosecutor at this stage represents that crime No. 235 of 1988 on the file of the Pazhavanthangal Police Station is still pending investigation and the effect of this order on such investigation could be indicated. Needless to state that the investigating agency will have to come to its own conclusion on the materials collected by them already and the material to be further collected by them in the light of the scientific parentage now found by this Court and dispose of the investigation in accordance with law as provided under Chapter XII of the Criminal Procedure Code. Mr. M. Karpagavina-yagam, learned Counsel appearing for the Petitioner in his turn would invite an observation about the decision taking process by a Civil Court. The order made by me earlier on 19/4/1989 is self-explanatory and if the Petitioner has a right to go to the Civil Court, this order cannot bar her.

In the result, while directing handing over the custody of Mary to the 2nd Respondent and his wife Kaliammal forthwith in my presence, this petition filed by Kanniammal is dismissed with the observations above mentioned.