Bombay High Court

Namdeo Babasaheb Korde vs Babasaheb @ Babarao Ramrkishna ... on 21 December, 2013

Bench: R.V. Ghuge

                                  ( 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

( 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

( 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

( 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

( 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

( 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.

( 8 ) Writ Petition No.7402 Of 2012

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

( 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

( 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.

( 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