IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No.4398/2015 BETWEEN:
Mahesh.G, S/o.Gangadharaiah, Aged 33 years, R/at Hale Sosele Village, T.Narasipura Taluk, Mysuru District. ... Petitioner (By Sri. S.N. Bhat, Advocate) AND:
1. Nagarathna @ Rajini, Aged:29 years, D/o.Shivaraju, 2. Nishanth, Aged: 5 years, Minor represented By his Mother Natural Guardian, Both are residing at 11th Main, 4th Cross, Srirampura, Nanjanagudu Taluk, Mysuru District – 571 301. ... Respondents (By Sri. C.M. Poonacha, Adv., for R1-Absent; R2 – served and unrepresented) This Criminal Petition is filed u/s.482 of Cr.P.C praying to set aside the order passed by the C.J. and J.M.F.C., T.Narasipura dated 6.6.2015 in C.Misc.No.96/2013 on an application filed u/s 18 and 23 of the Protection of Women from Domestic Violence Act and allow the petition.
This Criminal petition coming on for Admission, this day, the Court made the following:
O R D E R Heard learned counsel for the petitioner. Counsel for respondent No.1 is absent.
2. Petitioner is aggrieved by the order dated 06.06.2015 passed by the Civil Judge & JMFC, T. Narasipura in C.Mis.96/2013, wherein the application filed by the respondents herein under Sections 18 and 23 of Protection of Women from Domestic Violence Act, 2005, has been allowed and the petitioner herein is directed to subject himself for DNA test at the cost of the respondents.
3. The learned counsel for the petitioner submits that prima-facie proof is produced before the Court to show that petitioner herein disputed the marriage with respondent No.1 and has also disputed the paternity of the child. Prima-facie document was produced by way of Birth extract issued by the Municipality, Nanjangud, to show that respondent No.2 was born to respondent No.1 through one Suresh and therefore, petitioner is not required to be subjected to DNA test.
4. The undisputed facts are that, respondent No.1 filed a petition under Section 12 r/w Sections 18, 19, 20 and 22 of the Protection of Women from Domestic Violence Act, 2005, claiming various reliefs for herself and on behalf of respondent No.2 claiming to be the wife of petitioner herein. In the petition she averred that her marriage was performed on 03.03.2005 with one J.B.Suresh and that she and her first husband J.B.Suresh lived for one and a half years and thereafter on account of serious disputes between them, they started residing separately, whereafter, petitioner herein being the close friend of her first husband acted as a conciliator between respondent No.1 and her first husband. Her first husband deserted her in 2008. In the meanwhile, the brother of 1st respondent-Sri. Shivakumar also died and taking advantage of the same, the petitioner herein started visiting respondent No.1’s house at Nanjangud and assured to give her a new life and hence with the consent of their relatives their marriage was performed in a family function at Kooduvali in the month of September 2008 and in the wedlock, she gave birth to a male child by name Nishanth on 21.11.2009.
5. On service of summons, the petitioner herein disputed the marriage as well as the paternity of the child and in support of this contention relied on the Birth extract issued by the Chief Officer, Town Municipality, Nanjangud, wherein the parents name of the child is described as Rajani W/o. Suresh. In the said certificate, the name of the present petitioner is also written. The learned counsel for the petitioner contends that the said entry is a later insertion and manipulation.
6. Having regard to the contentions urged by the parties and in view of the documents relied on by the petitioner, in my view, for the purpose of disposal of the petition filed by respondents, since there is specific assertion in the pleading that after desertion by her first husband, the petitioner herein contracted marriage with respondent No.1, respondent No.1 is required to prove the said fact independent of the D.N.A. evidence. In the event, respondent No.1 is able to prove the said fact by cogent evidence, Court could proceed to record a finding as to the paternity of the child, based on the date of desertion of respondent No.1 by her first husband and date of her marriage with the petitioner herein, would clinch the issue. Therefore, at this juncture, in my view, subjecting the petitioner for DNA test, may not be necessary.
7. Having regard to the material on record, the trial Court is directed to proceed to record the evidence of the parties and record a finding on the disputed issue and thereafter, if the trial Court is of the opinion that scientific evidence is required to prove the paternity of the child, the trial Court may consider the said application after recording the evidence of the parties.
Accordingly, petition is allowed. Impugned order dated 06.06.2015 passed by the Civil Judge & JMFC, T.Narasipura, in C.Misc.No.96/2013, is set aside. The trial Court is directed to permit the parties to adduce evidence in support of their respective contentions and record a finding on the disputed issue and thereafter, if the Court is of the opinion that scientific evidence is necessary for fair adjudication of the dispute between the parties, the trial Court shall accordingly consider the application filed by respondent No.1 for subjecting the petitioner to DNA examination. Till then the application filed by respondent No.1 under Sections 18 and 23 of the Protection of Women from Domestic Violence Act, 2005, shall be kept in abeyance.
Petition is allowed in terms of the above order.
Sd/- JUDGE SV