( 1 ) Writ Petition No.7402 Of 2012
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.7402 OF 2012
1. Namdeo Babasaheb Korde,
Age-29 years, Occu-Agriculture,
R/o.Kordewadi, presently residing at
Devla Khadki, Tq.Wadavani, Dist.Beed,
2. Janabai W/o.Babasaheb Korde,
Age-50 years, Occu-Household and Agri.
R/o.Kordewadi, presently residing at
Devla Khadki, Tq.Wadavani, Dist.Beed, PETITIONERS
VERSUS
1. Babasaheb @ Babarao Ramrkishna Korde,
Age-60 years, Occu-Agriculture,
R/o.Kordewadi, Tq. Kaij, Dist.Beed,
2. Ramdas S/o.Babasaheb Korde,
Age-35 years, Occu-Agriculture,
R/o.Kordewadi, Tq. Kaij, Dist.Beed,
3. Haridas S/o.Babasaheb Korde,
Age-33 years, Occu-Agriculture,
R/o.Kordewadi, Tq. Kaij, Dist.Beed,
4. Rohidas @ Ruidas S/o.Babasaheb Korde,
Age-27 years, Occu-Agriculture,
R/o.Kordewadi, Tq. Kaij, Dist.Beed,
5. Pintubai W/o.Santosh Shinde,
Age-31 years, Occu-Household,
Ro.Shindewadi, Tq.Majalgaon,
Dist. Beed.
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( 2 ) Writ Petition No.7402 Of 2012
6. Nagarbai W/o.Babasaheb Korde,
Age-27 years, Occu-Agriculture,
R/o.Kordewadi, Tq. Kaij, Dist.Beed,
7. Shobhabai D/o.Babasaheb Korde,
Age-31 years, Occu-Service,
R/o.Kordewadi, presently residing at
Devla Khadki, Tq.Wadavani, Dist. Beed. RESPONDENTS
Mr.H.V.Tungar, Advocate for petitioners.
Mr.P.D.Suryawanshi, Advocate for respondents.
ig (CORAM : RAVINDRA V.GHUGE, J.)
DATE : 21/12/2013
JUDGEMENT :
1. Rule. Rule made returnable forthwith and heard learned Advocates for the respective sides finally.
2. Petitioners are challenging the impugned order dated 20/06/2012 passed by the learned Civil Judge, J.D. Kaij, Dist. Beed in RCS No.186/2002, which has been filed by petitioner Nos. 1 and 2 and respondent No.7, for partition and separate possession. They are original plaintiffs in RCS No.186/2002.
3. Contention of the petitioners is that an application at Exh.55 ::: Downloaded on - 06/01/2014 04:09:22 ::: ( 3 ) Writ Petition No.7402 Of 2012 was filed before the learned Civil Judge, J.D. at Kej, Dist. Beed in RCS No.186/2002. It is contended that original plaintiff Nos. 1 and 2 are the children of plaintiff No.3 and defendant No.1, born out of a legal wedlock. Respondent No.1 herein is defendant No.1 in the suit.
4. It thus emerges from the fact situation that the petitioner No.1 and respondent No.7 herein are claiming to be the children of petitioner No.2 and respondent No.1. Respondent No.1 had denied the factum of his wedlock with petitioner No.2. In this backdrop, the petitioners had moved an application Exh. 55 seeking a DNA test of respondent No.1 to prove his paternity.
5. My attention is drawn to Exh. 55 which is at page No.30 of the petition paper book. The noting on the said application reads as :
"Defendants and their learned Advocates are absent when called out. Defendants failed to argue. Hence application to proceed further without their arguments."
6. Learned Advocate for respondent No.1 vehemently states that subsequently respondent No.1 filed his reply below Exh.60 dated ::: Downloaded on - 06/01/2014 04:09:22 ::: ( 4 ) Writ Petition No.7402 Of 2012 07/01/2009. The defence taken is that there is no specific contention about marriage between the mother (petitioner No.2) of petitioner No.1 and respondent No.1. In view of absence of pleadings about such marriage, no DNA test is required. As per Hindu Marriage Act unless there is a marriage, there can not be a legal presumption of parenthood.
7. Further defence has been taken by respondent No.1 that no divorce is claimed between the concerned parties and the application filed by the petitioners is without adducing proper and sufficient evidence. Expert opinion is always a weak kind of evidence. The application was therefore opposed. The trial court vide the impugned order has rejected the application accepting the contentions of respondent No.1.
8. It is a mis conception that only a valid and legal marriage leads to parenthood. A biological child would equally be an offspring as like a child born out of a legal wedlock. A child born out of relationship between a male and a female will render both to parenthood. Therefore, in the present case, whether there was any ::: Downloaded on - 06/01/2014 04:09:22 ::: ( 5 ) Writ Petition No.7402 Of 2012 legal marriage performed between petitioner No.2 and respondent No. 1 would not be significant when it came to a DNA Test to be performed for establishing paternity of respondent No.1 qua petitioner No. 1 and respondent No. 7.
9. DNA means 'deoxyribonucleic acid'. DNA structure varies amongst each individual. It necessarily happens to be a basic genetic material in all living humans. It carries a genetic code which can be used for proving human character, body characteristics, behaviour etc. DNA can be found in the human body and samples from semen, hair, blood, flesh can establish a DNA matching with the DNA of another human being.
10. In the case of Buckly v. Rice Thomas [(1554) 1 Plowden 118] (as quoted by M.Jagannadha Roa, Chief Justice, Kerala High Court, as he then was, in 1993(1) KLT 19) Justice Sauders held, "....if matters arise in our law which concerns others sciences or faculties, we commonly apply for the aid of that science or faculty to which it concerns. This is an honourable commendable thing in our Law. We ::: Downloaded on - 06/01/2014 04:09:22 ::: ( 6 ) Writ Petition No.7402 Of 2012 approve of them and encourage them as things worthy of commendation". Each human being has a unique DNA pattern which is acquired by inheriting it from the biological parents. It is so identifiable as it carries great similarities to their molecular structure and their genetic code. It is for these reasons that a DNA test is utilised as it can conclusively determine a biological relationship.
11. Attention of the Court is drawn to the impugned order dated 20/06/2012 which is on page No.35 of the petition paper book. It appears that the learned Court has got carried away by the contention that the petitioners No.1 and respondent No.7 are not born out of valid wedlock and the Apex Court in the case of Banarasidas Vs.Teeku Dutta and another (2005[4] SCC 449, has concluded that a DNA test is not to be directed as a matter of routine course and can be directed only in deserving cases.
12. Directions given in the Goutam Kundu Vs.State of Bengal (1993) 3 SCC 418 have also been gone into and the Court has considered as to what would be the consequences of ordering a blood test. The effect of branding a child as a bastard and a mother as a ::: Downloaded on - 06/01/2014 04:09:22 ::: ( 7 ) Writ Petition No.7402 Of 2012 unchaste woman is not intended by Law. It was, in these circumstances that the learned Civil Judge, J.D. rejected the application and has concluded that respondent No.1 can not be compelled to give his blood samples for analysis in order to undergo the DNA Test. It needs to be noted that the Apex Court in Kundu's case (supra) has not banned or altogether prohibited a DNA test.
13. A similar case fell for the consideration of the Division bench of the Delhi High Court in the case of Rohit Shekhar Vs.Narayan Dutt Tiwari and another, FAO(OS) No. 547/2011 decided on 24/04/2012. The facts of the said case are quite similar to the matter in hand. In the said case, Mr.Narayan Dutt refused to accept the identity of a lady to whom the petitioner Rohit Shekhar was born.
Consequentially, paternity of Rohit Shekhar was denied by Mr.Tiwari.
The DNA Test was resisted and the plea that absence of any valid marriage between the lady and Mr.Tiwari, would preclude Mr.Rohit Shekhar from claiming to be a son. Therefore, neither could a DNA test be ordered nor can Mr.Tiwari be ordered to give his blood samples.
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14. The Delhi High Court allowed the petition filed by Rohit Shekhar and observed in para No. 26 as under :
"Though in the light of what we have held, it is not strictly relevant, but we are unable to restrain ourselves from recording what the Court of Appeal (Civil Division) observed in Re H and A (children) (Paternity : Blood Tests) [2002] EWCA Civ 383 :-
Over thirty years ago in his speech in S Vs. Mc C Lord Hodson said : "The only disadvantage to the child which is put forward as an argument against the use of a blood test, not for therapeutic purposes but to ascertain paternity, is that the child is exposed to the risk that he may lose the protection of the presumption of legitimacy.
Without seeking to depreciate the value of this presumption it is, I think, fair to say that whatever may have been the position in the past the general attitude towards illegitimacy has changed and the legal incidents of being born a bastard are now almost non-existent. I need not dilate upon this, for I recognise that it is impossible to say that there is no stigma of bastardy even though it be no more than the indirect stigma of the imputation of unchastity to the mother of the child so described. On the other hand, it is difficult to conceive of cases where, assuming illegitimacy in fact, it is to the advantage of the child that this legal ::: Downloaded on - 06/01/2014 04:09:22 ::: ( 9 ) Writ Petition No.7402 Of 2012 status of legitimacy should be preserved only perhaps to be displaced by firm evidence of illegitimacy decided later in his or her life from a blood test.
The interests of justice in the abstract are best served by the ascertainment of the truth and their must be few cases where the interests of children can be shown to be best served by the suppression of truth. Scientific evidence of blood groups has been available since the early part of this century and the progress of serology has been so rapid that in many cases certainty or near certainty can be reached in the ascertainment of (FAO (OS) No.547/2011 page 21 of 31) paternity. Why should the risk be taken of a judicial decision being made which is factually wrong and may later be demonstrated to be wrong ?"
15. Mr.Tiwari carried the matter to the Apex Court. By its order in the case of Narayan Dutt Tiwari Vs. Rohit Shekhar, reported at 2012(12) SCC 554, the view of the Delhi High Court was upheld.
Observations of the Apex Court in para No. 49 read thus :-
"We may further observe that the injunction directing DNA testing falls in the category of an order in aid of disposal of the suit and deciding the rights of the parties to the suit i.e. the right asserted by the appellant to have such DNA testing done and the right asserted by Respondent 1 ::: Downloaded on - 06/01/2014 04:09:22 ::: ( 10 ) Writ Petition No.7402 Of 2012 to not submit thereto. Once such rights had been adjudicated by the suit court and the appeal there against had been dismissed and the application for stay having been rejected by the Apex Court, it was not open to the suit court to again entertain the said question. If such practices were to be permitted, it will have dangerous consequences. It is rarely that the entire suit is decided by the same Judge. If it were to be permissible for each successive Judge presiding over a court to take a different view, it will not only lead to the litigants and the counsel urging the same issues repeatedly each time on change of roster but also be contrary to the rule of Law."
16. Shri Jitendra N.Bhatt, Judge, Gujarat High Court in his Article printed in (2003) 8 SCC (Journal) 25, has written which read thus :
"In Western countries, DNA test and profile is now widely employed. In a country like ours, such a test and profile may, hardly, be emphasised Systematic programme and scientific planning ought to be started for the use of DNA test and profile. Orientation, seminars, workshops, publications ought to be carried out and methods for its utility, importance and awareness on the part of one and all concerned and functionaries in the criminal and civil justice delivery system in general and for police, courts and correctional institutions in particular. ::: Downloaded on - 06/01/2014 04:09:22 :::
( 11 ) Writ Petition No.7402 Of 2012 In many developed countries, DNA test, genetic testing techniques and "RACMIZATION" - testing based on systematic examination of teeth and bite-marks has proved to be very useful. No doubt, "RACMIZATION" technique is currently used in Japan and Germany. It has potential to replace the traditional method which took into account the eruption and/or fusion and falling sequence of teeth."
17. I am, therefore, of the firm view that when the petitioner No.1 (claiming to be the son) and respondent No.7 (claiming to be the daughter) desire that their father needs to be identified, the Law will rush in aid to the duo. For ascertaining the truth and to avoid evading of the clutches of Law, respondent No.1 Babasaheb @ Babarao Ramkrishna Korde, needs to undergo the DNA test.
Ultimately, in the eyes of law, truth which is divine, must surface.
No loss or harm of any nature would be caused to him. When medical science can act in aid of law, courts must allow truth to prevail.
18. In the light of the above, the impugned order dated 20/06/2012 passed by the Civil Judge, J.D. Kaij, below Exh.55 ::: Downloaded on - 06/01/2014 04:09:22 ::: ( 12 ) Writ Petition No.7402 Of 2012 deserves to be quashed and set aside. Application Exh.55 is, therefore, allowed.
19. The learned Civil Judge, J.D. at Kaij, Dist. Beed, in RCS No. 186/2002 shall issue necessary directions in accordance with Law for collecting blood samples and carrying out DNA Test of respondent No.1 Babasaheb @ Babarao Ramkrishna Korde.
20. With the above directions, the petition is allowed.
21. Rule is made absolute with no order as to costs.
( RAVINDRA V.GHUGE, J.) khs/Dec.2013/wp7402-12 ::: Downloaded on - 06/01/2014 04:09:22 :::