Shri. Yogesh Baburao Shinde And ... vs Shri. Baburao Mahadu Shinde And ...
2021 Latest Caselaw 12187 Bom

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                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           CIVIL APPELLATE JURISDICTION

                               WRIT PETITION NO. 857 OF 2016



     1. Shri. Yogesh Baburao Shinde
     2. Sau. Durga Baburao Shinde                    ....   Petitioners

             Vs.

     1.   Shri. Baburao Mahadu Shinde
     2.   Shri. Bharat Baburao Shinde
     3.   Shri. Sharad Baburao Shinde
     4.   Shri. Rameshwar Baburao Shinde
     5.   Sau. Jijabai Baburao Shinde    ....               Respondents


     Mr. Girish R. Agrawal for Petitioners
     Mr. Suresh M. Sabrad for Respondent No. 1.

                                         Coram : NITIN W. SAMBRE, J.

Date : 31ST AUGUST, 2021

P.C.:

1. This Petition is by the original Plaintiffs to the Regular Civil

Suit No. 105 of 2012, which is for partition.

2. Petitioner No. 1 claims to be son of Petitioner No. 2 born

out of marriage with Defendant No. 1 i.e. Respondent No. 1 herein.

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3. In a Suit, an issue in regard to the paternity was framed as

the Defendant No. 1/Respondent No. 1 denied paternity and also

marriage.

4. The Petitioners moved an application, Exhibit 54 for

issuance of directions to the Respondent- Defendant No. 1 to present

himself for D.N.A. test, which prayer is rejected by the impugned order

dated 28th November, 2015 passed by 2nd Joint Civil Judge, Junior

Division, Niphad. As such, this petition.

5. Mr. Agrawal, learned counsel appearing for the Petitioners

while inviting attention of this Court to the provisions of Sections 16,

11 and 5(1) of the Hindu Marriage Act, 1955 would claim that even a

child born out of voidable marriage can claim right to property. Even

illegitimately born out of live-in relationship cannot claim inheritance of

coparcenary property, however, has every right to claim share in the

self-acquired property, as is settled down in the judgment of the Apex

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Court in the matter of Bharatha Matha and Another Vs. R. Vijaya

Renganathan and Others, reported in (2010) 11 Supreme Court Cases,

page 483. He would then claim that though the presumption under

Section 112 of the Indian Evidence Act about legitimacy of the child

born during continuation of marriage is formed basis for rejection of a

prayer of the Petitioners in the order impugned, however, such

presumption, in the case in hand is difficult to be discharged

considering the advance age and the absence of witnesses.

6. Drawing support from the judgment of this Court in the

matter of Namdeo Babasaheb Korde and Another Vs. Babasaheb @

Babarao Ramkrishna Korde and Others, reported in (2015) 1

Maharashtra Law Journal page 888, he would urge that so as to

establish the truth, it is necessary to direct Defendant No.

1/Respondent No. 1 to undergo D.N.A. test.

7. While countering aforesaid submissions, learned counsel

appearing for the Respondents would oppose the claim as according to

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him, the initial burden is on the Petitioners to establish about existence

of marriage or birth of Plaintiff No. 1/Petitioner out of subsistence of

marriage. Unless such burden is discharged, the Petitioner cannot take

recourse to the remedy available under Section 45 of the Indian

Evidence Act in the form of medical evidence/Expert evidence.

8. I have considered rival submissions.

9. From the pleadings, it is apparent that the claim put-forth

by the Petitioner about the marriage and birth of Plaintiff No.1 was

denied by the Respondent- Defendant No. 1 resulting into framing of an

issue to that effect.

10. In such an eventuality, burden is on the Petitioners-

Plaintiffs to prove that there was a marriage and if not, the son- Plaintiff

No.1 was born out of relationship between Plaintiff No.2 and Defendant

No. 1.

11. In case if the issue of marriage is established by Plaintiff No.

2, the presumption under Section 112 of the Indian Evidence Act can be

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drawn and such presumption can be rebutted by Defendant No. 1.

12. In the case in hand, the trial Court rejected the prayer of the

Petitioner-Plaintiffs on three counts :

(a) There is denial of marriage and relationship;

(b) The burden is on the Plaintiff to prove the

performance of marriage and

(c ) presumption under Section 112 of the Indian

Evidence Act, to be initially discharged by the

Petitioners.

13. The fact remains that this Court while considering such an

issue in the matter of Namdeo Korde and Another Vs. Babasaheb @

Babarao (cited supra) has made following observations :

"8. It is a misconception 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

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render both to parenthood. Therefore, in the present case, whether there was any 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.

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."

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     14.               The      Respondent-Defendant   No.1      has      denied        the

relationship so also the paternity, which has resulted into preferring an

application under Section 45 of the Indian Evidence Act.

15. The Petitioners have claimed that the marriage was

solemnized on 4th October, 1978. In the plaint, it is specifically pleaded

that the relation between Defendant No. 1 and Plaintiff No. 2 is that of

husband and wife and Plaintiff No. 1 is born out of said relationship. It

is further claimed that the property of which partition is sought was in

possession of Defendant No.1 and the Plaintiffs. However, since the

Defendant No. 1 has started taking steps adverse to the interest of the

Plaintiffs, the suit in question is brought into action.

16. The disclosure of the date of marriage, specific pleadings

that the Plaintiff No. 1 was born out of marriage of Plaintiff No. 2 with

Defendant No. 1, legitimate claim appears to have been raised by the

Plaintiffs. Such claim, for adducing medical evidence by ordering

Defendant No. 1 to undergo DNA test appears to be in the interest of

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son of Plaintiff No. 2, claimed to have born out of marriage with

Defendant No. 1. It cannot be inferred that if directed to undergo DNA

test, any right of privacy of Defendant No. 1 is going to be jeopardised.

As such, in my opinion, a case for showing indulgence in extra ordinary

jurisdiction is made out. As such order impugned dated 28 th November,

2015 passed by 2nd Joint Civil Judge, Junior Division, Niphad below

Exhibit 54 is hereby quashed and set aside.

17. Application, Exhibit 54 is allowed.

18. Defendant No. 1/Respondent No.1 is directed to undergo

D.N.A. Test, the schedule about which shall be decided by the Civil

Judge, who is dealing with the Suit including that of costs and

conditions to be complied.

19. In case if the Defendant No.1 fails to give sample of blood

for analysis, inspite of this order and failed to submit himself to the

medical examination, the trial Court will be at liberty to take such

refusal on record and draw appropriate adverse inference.

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20. Let aforesaid exercise be completed within the stipulated

period to be fixed by the trial Court.

21. The Writ Petition stands allowed in above terms.

( NITIN W. SAMBRE, J.)