IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 04TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR W.P.NO. 46206/2014 (GM-CPC) BETWEEN:
1. SMT LAKSHMAMMA @ LAKSHMINARASAMMA, W/O LATE HANUMANTHARAYAPPA, AGED ABOUT 51 YEARS, 2. SMT. VIJAYAKUMARI D/O LATE HANUMANTHARAYAPPA, AGED ABOUT 23 YEARS, 3. SRI VENKATESH, S/O LATE HANUMANTHARAYAPPA, AGED ABOUT 21 YEARS, PETITIONERS 1 TO 3 ARE RESIDING AT NO.715, I MAIN, 2ND CROSS, MARUTHI LAYOUT, CHOKKASANDRA, BANGALORE-560 058.
4. SRI KEMPEGOWDA, S/O LATE THIMMAIAH, AGED ABOUT 46 YEARS, 5. SRI VENKATESH, S/O LATE THIMMAIAH, AGED ABOUT 46 YEARS 6. SRI GOVINDARAJU, S/O LATE THIMMAIAH, AGED ABOUT 38 YEARS, PETITIONERS 4 TO 6 ARE RESIDING AT KAMANAAGRAHARA VILLAGE, DODDABELAVANGALA HOBLI, DODDABALLAPUR TALUK.
... PETITIONERS (BY SRI. ARUN A. GADAG FOR SRI. K SHRIDHARA, ADVOCATES) AND:
1. SRI NAGARAJU S/O LATE THIMMAIAH, AGED ABOUT 55 YEARS, RESIDING AT NO.12, 2A MAIN ROAD, ATTUR LAYOUT, EXCORTS COLONY, YELAHANKA, BANGLORE-560 064.
2. SRI VENKATAGIRI, S/O LATE THIMMAIAH, AGED ABOUT 52 YEARS, RESIDING AT NO.12, 2A MAIN ROAD, ATTUR LAYOUT, ESCORTS COLONY, YELAHANKA, BANGALORE-560 064.
... RESPONDENTS (BY SRI.S R KRISHNA KUMAR, ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER ON IA.NO.2 DT.27.8.14, IN RA.NO.158/12, ON THE FILE OF THE PRL. DIST. & SESSIONS JUDGE BANGALORE RURAL DIST. AT DODDABALLAPURA, VIDE ANN-A.
THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard Sri. Arun A. Gadag, learned counsel appearing on behalf of Sri. K. Shridhara, learned counsel for petitioners and Sri. S.R. Krishna Kumar, learned counsel appearing for respondent Nos. 1 and 2. Perused the case papers.
2. Respondents have filed the suit - O.S.No.130/2006 for partition and separate possession claiming half share in the suit schedule properties, which suit came to be dismissed on 29.03.2012 and appeal filed in R.A.No.158/2012 also came to be dismissed on account of delay not being condoned. Subsequently, this Court in R.S.A.No.618/2013 by judgment and decree dated 25.03.2014 allowed the second appeal and condoned the delay in filing first appeal and restored R.A.No.158/2012 to the file of first appellate Court for being heard and disposed of on merits.
3. During the pendency of said appeal in R.A.No.158/2012 an application under Order 41 Rule 27 r/w Order XXVI Rule 10-A and Section 107 CPC and Section 45 of Evidence Act, 1872 came to be filed by the appellants seeking permission to adduce additional evidence by seeking for DNA test/paternity test of respondents and appellant Nos.4, 5 and 6 being conducted. Said application has been allowed by the impugned order dated 27.08.2014 which has been assailed by the defendants i.e., respondents in R.A.No.158/2012.
4. It is the contention of the Sri. K. Shridhara, learned counsel appearing for petitioners that Appellate Court had committed a serious error in allowing the application that too, without granting opportunity to the petitioners to file their objections and as such, has prayed for setting aside the order or in the alternate, to remand and direct the Appellate Court to extend opportunity to the petitioners herein to file objections to the said application.
5. Per contra, Sri. Arun A. Gadag, learned counsel appearing for respondents would support the impugned order.
6. Having heard the learned counsel appearing for parties and on perusal of records including pleading /objections laid out before trial Court, which is now the subject matter of consideration before appellate Court, it would disclose that writ petitioners or defendants and respondents being plaintiffs had filed the suit for partition and separate possession in O.S.No.130/2006 and same came to be dismissed. This Court while allowing the second appeal in R.S.A.No.618/2013 had directed both parties to appear on 15.04.2014 before the Lower Appellate Court without waiting for further notice. The order sheet of the Lower Appellate Court – Annexure-A would disclose that petitioners did not appear on the said date for reasons best known.
7. During the pendency of the appeal, an application for conducting DNA test came to be filed by the plaintiffs i.e., I.A.No.2- Annexure-D. It is not in dispute that plaintiffs are claiming share in the suit schedule property contending interalia that late Thimmaiah who was the original propositus and plaintiffs being children of the first wife are entitled to share in the suit schedule property. However, relationship of late Thimmaiah with mother of the plaintiffs have been denied by the defendants in the written statement filed by them. In this background, plaintiffs sought for paternity test to be conducted by directing DNA test on respondents and appellant Nos.4, 5 and 6.
8. It is trite law that while considering an application for conducting DNA test, the Court cannot mechanically allow the said application and there should be due application of mind and reasons should be forthcoming as to why paternity test is being ordered. A bare reading of Section 112 of the Evidence Act, 1872 would disclose that any person born during the continuance of a valid marriage between his mother and any man or within 280 days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man unless it can be shown that parties to the marriage had no access to each other at any time when he could have been begotten. This provision makes the conclusive proof of legitimacy and paternity of child, if the condition indicated or specified thereunder is satisfied.
9. In the instant case, it is assertion of the plaintiffs that they are the sons born out of wed lock between late Sri.Thimmaiah and Smt. Nagamma and defendants have denied Smt. Nagamma was the wife of late Thimmaiah. Objections are not filed to the said application, except self serving testimony of the plaintiffs that they are the children of late Thimmaiah born through Smt. Nagamma, there is no material placed on record in this regard. Hon’ble Apex Court in the case of BHABANI PRASAD JENA VS. CONVENOR SECRETARY, ORISSA STATE COMMISSION FOR WOMEN AND ANOTHER reported in (2010) 8 SCC 633 has held that a cautious and judicious approach should be made for issuing direction for conducting DNA test and only if a strong prima facie case is made out, such test can be ordered. It came to be held:
“19. In Banarsi Dass v. Teeku Dutta (2005) 4 SCC 449 this Court was concerned with a case arising out of a succession certificate. The allegation was that Teeku Dutta was not the daughter of the deceased. An application was made to subject Teeku Dutta to DNA test. The High Court held that trial court being a testamentary court, the parties should be left to prove their respective cases on the basis of the evidence produced during trial, rather than creating evidence by directing DNA test. When the matter reached this Court, few decisions of this Court, particularly, Goutam Kundu (1993) 3 SCC 418 were noticed and it was held that even the result of a genuine DNA test may not be enough to escape from the conclusiveness of Section 112 of the Evidence Act like a case where a husband and wife were living together during the time of conception. This is what this Court said :
"13. We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancements with deoxyribonucleic acid (DNA) as well as ribonucleic acid (RNA) tests were not even in contemplation of the legislature. The result of a genuine DNA test is said to be scientifically accurate. But even that is not enough to escape from the conclusiveness of Section 112 of the Evidence Act e.g. if a husband and wife were living together during the time of conception but the DNA test revealed that the child was not born to the husband, the conclusiveness in law would remain irrebuttable. This may look hard from the point of view of the husband who would be compelled to bear the fatherhood of a child of which he may be innocent. But even in such a case the law leans in favour of the innocent child from being bastardised if his mother and her spouse were living together during the time of conception. Hence the question regarding the degree of proof of non-access for rebutting the conclusiveness must be answered in the light of what is meant by access or non-access as delineated above."
It was emphasized that DNA test is not to be directed as a matter of routine and only in deserving cases such a direction can be given.
20. Recently, in the case of Ramkanya Bai v. Bharatram (2010) 1 SCC 85 decided by the Bench of which one of us, R.M. Lodha, J. was the member, the order of the High Court directing DNA test of the child at the instance of the husband was set aside and it was held that the High Court was not justified in allowing the application for grant of DNA test of the child on the ground that there will be possibility of reunion of the parties if such DNA test was conducted and if it was found from the outcome of the DNA test that the son was born from the wedlock of the parties.
21. In a matter where paternity of a child is in issue before the court, the use of DNA test is an extremely delicate and sensitive aspect. One view is that when modern science gives the means of ascertaining the paternity of a child, there should not be any hesitation to use those means whenever the occasion requires. The other view is that the court must be reluctant in the use of such scientific advances and tools which result in invasion of right to privacy of an individual and may not only be prejudicial to the rights of the parties but may have devastating effect on the child. Sometimes the result of such scientific test may bastardise an innocent child even though his mother and her spouse were living together during the time of conception.
22. In our view, when there is apparent conflict between the right to privacy of a person not to submit himself forcibly to medical examination and duty of the court to reach the truth, the court must exercise its discretion only after balancing the interests of the parties and on due consideration whether for a just decision in the matter, DNA test is eminently needed. DNA test in a matter relating to paternity of a child should not be directed by the court as a matter of course or in a routine manner, whenever such a request is made. The court has to consider diverse aspects including presumption under Section 112 of the Evidence Act; pros and cons of such order and the test of `eminent need' whether it is not possible for the court to reach the truth without use of such test.
23. There is no conflict in the two decisions of this Court, namely, Goutam Kundu(1993) 3 SCC 418 and Sharda (2003) 4 SCC 493 . In Goutam Kundu, it has been laid down that courts in India cannot order blood test as a matter of course and such prayers cannot be granted to have roving inquiry; there must be strong prima facie case and the court must carefully examine as to what would be the consequence of ordering the blood test. In the case of Sharda, while concluding that a matrimonial court has power to order a person to undergo a medical test, it was reiterated that the court should exercise such a power if the applicant has a strong prima facie case and there is sufficient material before the court. Obviously, therefore, any order for DNA test can be given by the court only if a strong prima facie case is made out for such a course”.
10. In the case of SHARDA VS. DHARMPAL reported in (2003) 4 SCC 493 it has been held that direction to undergo medical test would not be violative of right to personal liberty particularly under Article 21 of constitution of India. However, it all depends on the facts and circumstance of the each case and under what circumstances an application for DNA test has to be allowed. As noticed hereinabove, except the assertion made by the plaintiffs no cogent material is available on record as on date to prima facie establish they are the children of late Thimmaiah.
11. It is also not in dispute that defendants were not afforded an opportunity to file objections to said application filed for tendering additional evidence. Hence, this Court is of the considered view that an opportunity deserves to be granted to the defendants for filing objections to said application. On such objections being filed, Lower appellate Court shall hear the learned Advocates afresh and dispose of the application for additional evidence on merits and in accordance with law without being influenced by its earlier order.
Hence, I proceed to pass the following:
ORDER (1) Writ petition is hereby allowed.
(2) Order dated 27.08.2014 passed on I.A.No.2 by the Principal District and Sessions Judge, Bangalore Rural District, Doddaballapura in R.A.No.158/2012 is set aside.
(3) Petitioners/defendants shall file objections to interlocutory application filed for additional evidence by next date of hearing and Lower appellate Court shall make all endeavours to dispose of the application-I.A.No.2 and also the appeal expeditiously and at any rate, within an outer limit of six months from the date of receipt of certified copy of this order subject to both parties co-operating with Court.
(4) It is also made clear that if either party were to seek any adjournment without justifiable cause, lower appellate Court would be at liberty to put the parties on such terms as it deems fit.
SD/- JUDGE RU