Karnataka High Court
Smt. Savitri vs Madivalappa on 5 August, 2024
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IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 5TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR. JUSTICE R.NATARAJ
WRIT PETITION NO.201175 OF 2018 (GM-CPC)
BETWEEN
1. SMT. SAVITRI,
W/O MADIVALAPPA KORI
AGE:54 YEARS, OCC:HOUSEHOLD
R/O RAMNAGAR (AHAMAD NAGAR),
BAGALKOT,
BYE-PASS ROAD, VIJAYAPUR,
DIST:VIJAYAPUR-586101.
2. BASAVARAJ S/O MADIVALAPPA KORI
AGE:32 YEARS, OCC:BUSINESS
R/O RAMNAGAR, (AHAMAD NAGAR)
BAGALKOT, BYE-PASS ROAD, VIJAYAPUR,
DIST:VIJAYAPUR - 586101.
3. SHRISHAIL S/O MADIVALAPPA KORI
AGE:27 YEARS, OCC:DRIVER
Digitally signed R/O RAMNAGAR (AHAMAD NAGAR)
by BAGALKOT, BYE-PASS ROAD,
MARKONAHALLI
RAMU PRIYA VIJAYAPUR, DIST:VIJAYAPUR-586101.
Location: HIGH
COURT OF ...PETITIONERS
KARNATAKA (BY SRI. AJAYKUMAR A.K., ADVOCATE)
AND
1. MADIVALAPPA,
S/O SHRISHAIL KORI
AGE: 65 YEARS,
OCC: AGRICULTURE,
R/O KAKHANDAKI,
TQ. AND DIST: VIJAYAPUR-586101.
2. MALLIKARJUN S/O SHRISHAIL KORI
AGE:60 YEARS, OCC: AGRICULTURE,
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R/O KAKHANDAKI
TQ. & DIST:VIJAYAPUR-586101.
3. SMT. LEELAVATI W/O MALLIKARJUN KORI
AGE:55 YEARS, OCC: AGRICULTURE,
R/O KAKHANDAKI,
TQ. & DIST: VIJAYAPUR-586101.
4. MAHABUBBI W/O HUSENSAB JAHAGIRDAR
AGE:65 YEARS, OCC: AGRICULTURE,
R/O BOL-CHIKKALAKI, TQ: JAMAKHANDI,
DIST:BAGALKOT-587101.
5. CHANDPASHYA S/O HUSSAINSAB JAHAGIRDAR,
AGE:33 YEARS, OCC: AGRICULTURE,
R/O BOL-CHIKKALAKI,
TQ: JAMAKHANDI,
DIST:BAGALKOT-587101.
6. VITHAL S/O RANGAPPA UPPAR,
AGE:40 YEARS, OCC: AGRICULTURE,
R/O KAMBAGI,
TQ. & DIST: VIJAYAPUR-586101.
...RESPONDENTS
(BY SRI GANESH S. KALABURGI, ADVOCATE FOR RESPONDENT
NOS.1 TO 3;
VIDE ORDER DATED 03.01.2019, NOTICE/S TO RESPONDENT NOS.4
TO 6 IS/ARE DISPENSED WITH)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO ISSUE A ORDER OR WRIT IN
THE NATURE OF CERTIORARI QUASHING IMPUGNED ORDER DATED
26.02.2018 IN I.A.NO.6 PASSED IN O.S NO.245/2012 BY THE
LEARNED II ADDL. SENIOR CIVIL JUDGE AND JMFC., VIJAYAPUR
VIDE ANNEXURE-F AND CONSEQUENTLY ALLOW THE I.A. NO.6.
THIS WRIT PETITION HAVING BEEN RESERVED FOR ORDERS
ON 29.05.2024 AND COMING ON FOR PRONOUNCEMENT OF ORDER
THROUGH VIDEO CONFERENCE THIS DAY, THE COURT MADE THE
FOLLOWING:
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CORAM: HON'BLE MR. JUSTICE R.NATARAJ
CAV ORDER
(PER: HON'BLE MR. JUSTICE R.NATARAJ)
The plaintiffs in O.S. No.245/2012 on the file of the II
Additional Senior Civil Judge and JMFC., Vijayapura,
(henceforth referred to as the 'the Trial Court') have filed this
petition challenging the correctness of an order dated
26.02.2018, by which an application (I.A. No.6) filed by them
under Order XXVI Rule 10A of the Code of Civil Procedure,
1908 (for short, 'CPC') for appointment of an expert for medical
examination of the blood samples of plaintiff Nos.2 and 3 with
that of defendant No.1 and to direct the defendant No.1 to give
his blood sample for comparing the DNA of the plaintiff Nos.2
and 3 with the DNA of the defendant No.1, was rejected.
2. The parties shall henceforth be referred to as they
were arrayed before the Trial Court.
3. The suit in O.S. No.245/2012 was filed for partition
and separate possession of the plaintiffs' share in the suit
properties. The defendant No.1 is the husband of plaintiff No.1
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and father of plaintiff Nos.2 and 3. The plaintiffs contended
that the suit properties were ancestral properties of the
ancestors of the defendant Nos.1 and 2 and therefore, the
plaintiff Nos.2 and 3 had an undivided right, title and interest
therein. They contended that the defendant No.1 had married
the plaintiff No.1 about 30 years prior to the suit and that he
had neglected the plaintiffs. They contended that the
defendant Nos.1 to 3 had created a false mutation claiming that
the properties were partitioned in terms of which the defendant
No.3 was allotted 22 acres of land while defendant Nos.1 and 2
were allotted 05 acres of land each. The plaintiffs contended
that this was done deliberately to deny the legitimate share of
the plaintiff Nos.2 and 3. The plaintiffs, therefore, sought for
their share in the suit properties.
4. The suit was contested by the defendant No.1 who
filed his written statement contending that "the plaintiff No.1 is
not the wife of this defendant. The plaintiff No.2 and 3 are not
the sons of this defendant. Hence the plaintiff No.1 must be
put to strict proof of to prove her status as wife of this
defendant and further plaintiff No.2 and 3 must be put to strict
proof that they are the sons of this defendant." He denied that
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the plaintiffs had any share in the suit properties. He
contended that he had married Smt.Mahananda in the year
1974 at Harallayyanaguda. He claimed that after his marriage,
his wife came to the matrimonial home at Kakhandaki village
where she lived with him and gave birth to a daughter. He
contended that his wife had expired and the plaintiff No.1 was
falsely claiming that she was given in marriage to him and he
also alleged that plaintiff Nos.2 and 3 were falsely claiming that
they were his sons.
5. Based on these contentions, the Trial Court framed
issues and set down the case for evidence. The plaintiffs filed
an application under XXVI Rule 10A of CPC., to appoint an
expert for medical examination of the blood samples of plaintiff
Nos.2 and 3 with that of defendant No.1 and to direct the
defendant No.1 to give his blood sample for comparing the DNA
of the plaintiff Nos.2 and 3 with the DNA of the defendant
No.1.
6. This application was opposed by the defendant No.1
contending that the DNA test does not decide the status of
plaintiff No.1 as the wife of the defendant No.1. He claimed
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that it is for the plaintiff No.1 to establish the said fact by
acceptable evidence. Therefore, he contended that no better
purpose would be served by appointing a medical expert.
7. The Trial Court in terms of the impugned order,
rejected the application (I.A. No.6) on the ground that a
comparison of the blood samples of the plaintiff Nos.2 and 3
with that of the defendant No.1 does not help in deciding the
question whether the plaintiff No.1 was the wife of the
defendant No.1. It held that if the plaintiff No.1 were
to establish by adducing oral and documentary evidence that
she was the wife of the defendant No.1, then there would be a
presumption under Section 112 of the Indian Evidence Act,
1872 (for short, 'the Act, 1872') that plaintiff Nos.2 and 3 are
the children of plaintiff No.1 and defendant No.1. Therefore, it
held that in the event plaintiff No.1 failing to establish that she
was the legally wedded wife of defendant No.1, no useful
purpose would be served by a DNA test. It relied upon the
judgment of the Apex Court in the case of Nandlal Wasudeo
Badwaik v. Lata Nandlal Badwaik and another
[(2014) Crl. LJ 1098] and held that DNA test was
unwarranted.
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8. Being aggrieved by the said order, the plaintiffs are
before this Court.
9. The learned counsel for the plaintiffs contended that
the plaintiff Nos.2 and 3 are the lawful heirs of the defendant
No.1. Therefore, it is necessary for the plaintiff Nos.2 and 3 to
independently establish that they are the children of the
defendant No.1. He contends that the suit involved two issues
as to whether the plaintiff No.1 was the wife of defendant No.1
and also whether the plaintiff Nos.2 and 3 were the children of
defendant No.1 to claim a share in the suit schedule
properties. He, therefore, submitted that these two issues had
to be established. He contends that even if the plaintiff No.1 is
unable to prove that she was the wife of the defendant No.1,
the plaintiffs 2 and 3 are bound to prove that they are the
children of defendant No.1. Therefore, he contends that the
reasoning of the Trial Court in rejecting the application (I.A
No.6) was incorrect and the Trial Court did not consider the
application on the basis of the facts involved in the suit.
10. Per contra, the learned counsel for the defendant
Nos.1 to 3 contended that if the plaintiff No.1 established her
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marital relationship with the defendant No.1, then all
consequences under Section 112 of the Act, 1872 are bound to
follow. He therefore contends that no purpose would be served
in conducting the DNA test. In support of his contention, he
relied upon the judgment of the Hon'ble Apex Court
in Nandlal Wasudeo Badwaik (supra) as well as the
judgment of a coordinate bench of this Court
in P.S. Shivakumar v. P.H. Subbarayappa since dead by
LRs. and others [2018(3) KCCR 2044]. He also relied upon
the judgment of the Hon'ble Apex Court in Ashok Kumar v.
Raj Gupta and others [Civil Appeal No.6153/2021
decided on 01.10.2021] and contended that forcing the
defendant No.1 to undergo a DNA test would impinge upon his
personal liberty and right to privacy.
11. I have considered the submissions made by the
learned counsel for the petitioners / plaintiff Nos.1 to 3 and the
learned counsel for the respondent Nos.1 to 3 / defendant
Nos.1 to 3.
12. In this case, the plaintiff Nos.2 and 3 have filed the
application (I.A. No.6) to conduct a DNA test to establish
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whether they are the children of the defendant No.1, in the
light of the contentions raised by the defendant No.1 that the
plaintiff Nos.2 and 3 are not his children. The plaintiff No.1 has
claimed that she is the wife of defendant No.1. Therefore,
ordinarily if the plaintiff No.1 is able to establish through oral
and documentary evidence that she was the wife of the
defendant No.1, then in view of Section 112 of the Act, 1872,
the legitimacy of the plaintiff Nos.2 and 3 shall be presumed.
Therefore, it is for the defendant No.1 to prove that he had no
access to the plaintiff No.1 as that would be a fact in issue and
the same has to be established by proper and sufficient
evidence of an unambiguous nature. The Hon'ble Apex Court in
the case of Kamti Devi (Smt.) and another v. Poshi Ram,
[(2001) 5 SCC 311] has held "The result of a genuine DNA
test is said to be scientifically accurate. But even that is not
enough to escape from the conclusiveness of Section 112 of the
Act e.g. if a husband and wife were living together during the
time of conception but the DNA test revealed that the child was
not born to the husband, the conclusiveness in law would
remain irrebuttable. This may look hard from the point of view
of the husband who would be compelled to bear the fatherhood
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of a child of which he may be innocent. But even in such a
case the law leans in favour of the innocent child from being
bastardised if his mother and her spouse were living together
during the time of conception. Hence the question regarding
the degree of proof of non-access for rebutting the
conclusiveness must be answered in the light of what is meant
by access or non-access as delineated above."
13. The Hon'ble Apex Court while considering the case
involving a request for a DNA test in the case of Aparna
Ajinkya Firodia v. Ajinkya Arun Firodia [Civil Appeal
No.1308 Of 2023 (Arising Out Of SLP (C) No.9855/2022)
decided On 20.02.2023].
"24. Questions as to illegitimacy of a child,
are only incidental to the claim of dissolution of
marriage on the ground of adultery or infidelity.
Allowing DNA tests to be conducted on a routine
basis, in order to prove adultery, would amount to
redefinition of the maxim, "Pater est quern nuptiae
demonstrant" which means, the father is he whom
the nuptials point out. While dealing with
allegations of adultery and infidelity, a request for a
DNA test of the child, not only competes with the
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presumption Under Section 112, but also jostles
with the imperative of bodily autonomy.
25. Another aspect that needs to be
considered in the instant case is whether, for a just
decision in the divorce proceedings, a DNA test is
eminently necessary. This is not a case where a
DNA test is the only route to the truth regarding the
adultery of the mother. If the paternity of the
children is the issue in a proceeding, DNA test may
be the only route to establish the truth. However, in
our view, it is not so in the present case. The
evidence of DNA test to rebut the conclusive
presumption available Under Section 112 of the
Evidence Act, can be allowed only when there is
compelling circumstances linked with 'access',
which cannot be liberally used as cautioned by this
Court in Dipanwita Roy."
Therefore applying the law declared by the Hon'ble Apex Court
in the above referred judgments, it was incumbent upon the
plaintiff No.1 to first prove that she was the wife of the
defendant No.1 by adducing oral and documentary evidence.
Even after such evidence is led if the question whether the
plaintiff No.1 was the wife of defendant No.1 or not, cannot be
sufficiently established or if there is a doubt as to whether the
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defendant No.1 had any access to the plaintiff No.1 or not and
if the DNA test was the only route to establish the truth, then
the Court may consider the application filed by the plaintiffs.
This Court is mindful of the fact that in many of the cases
reported, it is the husband in matrimonial proceedings who
would have sought for conducting a DNA test of the children to
establish adultery of the wife. In all those cases, the Courts
have heavily relied on Section 112 of the Act, 1872 so as to
protect the ignominy that may be caused to the child if an
adverse report is received. In the present case, it is not the
husband or the father who has sought for the DNA test, but it is
the children who have themselves sought for a DNA test and
therefore, the Trial Court must have been more cautious while
dealing with the application - I.A. No.6. The Trial court instead
of rejecting the application outrightly must have postponed the
consideration of the application till the parties had concluded
their evidence and must have considered it later. Hence, the
following:
ORDER
i. This Petition is allowed in part.
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ii. The impugned order dated 26.02.2018 passed
by the II Additional Senior Civil Judge and
JMFC., Vijayapura, on I.A. No.6 in O.S.
No.245/2012 is set aside.
iii. The application (I.A. No.6) filed by the plaintiffs
under Order XXVI Rule 10A of the Code of Civil
Procedure, 1908 is restored to the file of the
Trial Court.
iv. The Trial Court shall consider the said
application under Order XXVI Rule 10A of CPC.,
after the plaintiffs and defendant No.1 conclude
their evidence and pass appropriate orders in
the light of the judgments referred above.
Sd/-
(R.NATARAJ)
JUDGE
SMA
