IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR WRIT PETITION NO. 9841/2019 (GM-RES) BETWEEN SRI V M SRINIVAS S/O MUNIYAPPA AGED ABOUT 43 YEARS R/A B 1 BLOCK, VEMGAL KOLAR TALUK & DISTRICT – 563102 (BY SRI. SANDEEP LAHIRI, ADV.) AND 1. SMT LAKSHMIDEVI W/O V M SRINIVAS AGED ABOUT 32 YEARS R/A NARAYANAKANA THOTAGALU DEVANAHALLI TOWN - 562110 2. KUM JAYASHREE D/O V M SRINIVAS AGED ABOUT 4 YEARS REPRESENTED THROUGH HER NATURAL GUARDIAN AND MOTHER SMT LAKSHMIDEVI R/A NARAYANAKANA THOTAGALU DEVANAHALLI TOWN - 562110 ... PETITIONER ... RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF CODE OF CRIMINAL PROCEDURE PRAYING TO CALL FOR RECORDS OF CRL. REVISION PETITION NO.15007/2018 ON THE FILE OF V ADDL. DISTRICT AND SESSIONS JUDGE, DEVANAHALLI, BANGALORE RURAL DISTRICT ALONG WITH CRL. MISC.NO.645/2014 PENDING ON THE FILE OF THE PRL. CIVIL JUDGE AND JMFC, DEVANAHALLI AND TO ISSUE DIRECTION TO SET ASIDE THE ORDER DATED 01.08.2018 PASSED IN CRL. REVISION PETITION NO.15007/2018 BY THE V ADDL. DISTRICT AND SESSIONS JUDGE, DEVANAHALLI, BANGALORE RURAL DISTRICT (ANNEXURE-P) AND ETC.
THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard Mr. Sandeep Lahiri, learned counsel appearing for petitioner. Perused records.
2. Petitioner is facing proceedings initiated by respondents herein under Section 12 of the Protection of Women from Domestic Violence Act (for short ‘DV Act’). In the said proceeding, petitioner filed an application contending inter alia that 1st respondent herein was his wife; he has not fathered 2nd respondent herein, namely Kum. xxxxx; she is not biological daughter of petitioner herein. Said application came to be opposed by respondent herein by filing objections and learned trial Judge by order dated 03.03.2018 has rejected said application.
3. It can be seen from impugned order that reasons assigned by the learned trial Judge is of two fold: (1) Kum. Xxxx had filed a suit for partition of joint family properties in O.S.No.329/2014 and said suit had been decreed, wherein a similar plea had been raised by petitioner herein, who was 4th defendant in the said suit to the effect that plaintiff (Kum.xxxxx) is not his daughter. An issue came to be raised by learned trial Judge in that regard, namely issue No.2 and was answered in the negative, i.e., against writ petitioner herein (2) Presumption arise under Section 112 of the Evidence Act with regard to the paternity of the child.
4. Though Mr. Sandeep Lahiri, learned counsel appearing for petitioner, would be correct in submitting that as on the date impugned order came to be passed, judgment and decree passed in O.S.No.329/2014 had reached finality, fact remains that an appeal has been filed against judgment and decree and it is pending. However, mere pendency of appeal would not upset finding of fact recorded by learned trial Judge. That apart, he has made a valiant attempt to contend that marriage having been solemnized between petitioner and 1st respondent on 22.08.2010 and birth of child having taken place on 06.10.2011, admission of wife indicating that immediately after 8 months of her pregnancy she was residing at her parental home would give rise to a presumption that writ petitioner had not fathered the child. In the petition filed under D.V. Act, certain dates given by wife as to whether she was actually 8 months pregnant or otherwise and the exact date on which she had been to her parents house, would not be an issue to arrive at a conclusion that presumption arising under Section 112 of the Evidence Act stood rebutted. In that view of the matter, contention raised by Mr. Sandeep Lahiri cannot be accepted and it stands rejected.
5. Allowing application filed under Section 45 of the Evidence Act for conducting DNA Test for ascertaining paternity of child, as held by the Hon’ble Apex Court, would be in rarest of rare cases, as otherwise, it would lead to the status of child being declared as “illegitimate child”. This would have an adverse effect on the child and as such this Court would be slow in ordering for a DNA test in the facts and circumstances of the present case. At the cost of repetition, it requires to be noticed that between same parties a civil suit was pending in O.S.No.329/2014 and similar plea denying the paternity of the child had been raised and as such trial Court had framed an issue which came to be adjudicated and answered in favour of child. Though, said finding is now pending in appeal, it would not be safe and appropriate at this juncture to take a different view, particularly in the background of trial Judge having examined entire evidence and arrived at a conclusion that writ petitioner herein is father of child Kum. xxxx.
Hence, this Court is of the considered view that there is no error committed by the trial Court in rejecting the application for conducting DNA test. Hence, it does not call for interference by this Court. No grounds are made out to entertain the writ petition. Accordingly, writ petition is rejected.
SD/- JUDGE VP