Karnataka High Court
Mrs Rekha vs Mr Balakrishna on 25 June, 2024
-1-
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WP No. 11084 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
WRIT PETITION NO. 11084 OF 2022 (GM-CPC)
BETWEEN:
MRS. REKHA
AGED ABOUT 36 YEARS
W/O RAMU,
D/O BALAKRISHNA,
R/AT HOUSING BOARD,
HUNSUR TALUK-571105.
...PETITIONER
(BY SRI. MOHANA CHANDRA P., ADVOCATE)
AND:
1. MR. BALAKRISHNA
AGED ABOUT 67 YEARS
S/O LATE VENKATEGOWDA
2. CHANDRAKALA
Digitally AGED ABOUT 47 YEARS
signed by D/O BALAKRISHNA
SUVARNA T
Location: 3.
HIGH SOWMIYA
COURT OF AGED ABOUT 33 YEARS
KARNATAKA D/O VENKATEGOWDA
ALL ARE R/NEAR RAMA TEMPLE,
VENKATADARI NILAYA,
H.D. KOTE ROAD,
HUNSUR TOWN-571105.
...RESPONDENTS
(BY SRI. B.S. NAGARAJ, ADVOCATE FOR RESPONDENT NO.1;
-2-
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WP No. 11084 of 2022
VIDE ORDER DATED 07.06.2022, NOTICE TO RESPONDENT
NOS.2 AND 3 IS DISPENSED WITH)
THIS WP IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED
ORDER DATED 19.03.2022 PASSED BY THE COURT OF ADDL.
CIVIL JUDGE AND JMFC., HUNSUR IN O.S. NO.179/2010 BY
REJECTING I.A NO.14 FILED UNDER ORDER 26 RULE 10A OF
CPC VIDE ANNEXURE-E AND TO ALLOW THE I.A NO.10 FILED
UNDER ORDER 26 RULE 10A OF CPC BY THE PETITIONER VIDE
ANNEXURE-C.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Aggrieved by the order dated 19.03.2022 passed on
I.A.No.14 in O.S. No.179/2010 on the file of the Additional Civil
Judge and JMFC., Hunsur, dated 19.03.2022, the plaintiff is
before this Court.
2. The plaintiff who alleges to be the daughter of
defendant No.1 has filed the suit for partition. Defendant No.1
had filed his written statement stating that the plaintiff is not
the member of the joint family and she is not his daughter. As
such, she cannot seek partition. Then the plaintiff had filed the
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present I.A i.e., I.A. No.14 under Order XXVI Rule 10A of the
Code of Civil Procedure, 1908 ('CPC' for short) praying the
Court for appointment of a Commissioner to conduct DNA test
of the applicant and the defendant No.1 and submit a report to
the Court. The application is filed at the stage when evidence
of the plaintiff and the defendants was closed where the
defendant No.1 has denied that the plaintiff is the daughter of
defendant No.1.
3. Defendant No.1 filed his objections stating that the
plaintiff is not his daughter and her mother Smt. Manjula is not
his wife and as plaintiff is not a member of the joint family nor
a blood relative, she is not entitled to seek relief of partition.
Exs.D1 to D3 were marked at the time of cross-examination of
PWs.1 and 2 by the defendants. He contended that in the said
documents, the name of the plaintiff's mother's husband
mentioned is entirely different and that the plaintiff is not his
daughter. If the Court gives any direction for giving the blood
sample, it violates his rights guaranteed under Article 21 of the
Constitution of India and accordingly, prays to dismiss the writ
petition.
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4. The Court below having heard the learned counsel
and also relying on judgment of the Hon'ble Apex Court in the
case of Ashoka Kumar v. Raj Gupta and others1 observed
that directing a party to go for a DNA test is violative of Article
21 of the Constitution of India and further if the plaintiff is
daughter of defendant No.1, it is clearly mentioned in Section
112 of the Indian Evidence Act, 1872 ('the Act' for short) how
to prove the relationship and the plaintiff has to prove the
same and he cannot depend upon a DNA examination of
defendant No.1 and accordingly, dismissed the application.
5. Learned counsel for the petitioner relying on the
very same judgment of the Hon'ble Apex Court which is
considered by the Court below i.e., in Ashok Kumar's case
referred supra submits that the Hon'ble Apex Court had
considered its earlier judgments in the case of Bhabani
Prasad Jena v. Orissa State Commission for Women2 and
also in Kamti Devi v. Poshi Ram3 and in those particular facts
and circumstances, the Hon'ble Apex Court has held that DNA
test is not required. He submits that in the other judgments,
(2022) 1 SCC 20
(2010) 8 SCC 633
(2001) 5 SCC 311
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the Hon'ble Apex Court has clearly observed that in a case
where there is strong prima facie case and where it requires
DNA test, it has to be done and it gives conclusive proof with
regard to the paternity. If this application is not allowed, the
plaintiff would be put to irreparable loss and by virtue of any
other means, it would be difficult for her to prove that
defendant No.1 is her father.
6. Learned counsel appearing for the respondent No.1
- defendant No.1 submits that the Court below had rightly
considered the judgment of the Hon'ble Apex Court in Ashok
Kumar's case referred supra. He submits that if the Court
directs the defendant No.1 to go through a DNA test, it is
violative of the rights guaranteed to him under the Constitution
of India and this fact was well considered by the Court below.
He submits that the plaintiff has to prove the same as per
Section 112 of the Act. Now, after the evidence of the plaintiff
and the defendants is concluded at that point of time, this
application is filed. It is submitted that this application is filed
only to drag on the proceedings. It is submitted that the Court
below had rightly dismissed the application and the defendant
No.1 cannot be compelled to go through the DNA test.
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7. Having heard the counsels on either side, perused
the entire material on record.
8. The law with regard to this is well settled. As a
matter of course, Courts would not direct the parties to subject
themselves for a DNA test, but at the same time, there is no
absolute rule that the Court cannot direct a person to go for a
DNA test. It all depends upon the facts and circumstances of
each case. In a case if it has to be proved that a child is born
out of the wedlock, it has to be as per Section 112 of the Act.
The Hon'ble Apex Court in the case of Nandlal Wasudeo
Badwaik v. Lata Nandlal4 has observed that Section 112 of
the Evidence Act was enacted at a time when the modern
scientific advancement and DNA test were not even in
contemplation of the Legislature. The result of DNA test is said
to be scientifically accurate. Although Section 112 raises a
presumption of a conclusive proof on satisfaction of the
conditions enumerated therein but the same is rebuttable. The
presumption may afford legitimate means of arriving at an
affirmative conclusion. While the truth or fact is known, in our
opinion, there is no need or room for any presumption. Where
AIR 2014 SC 932
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there is evidence to the contrary, the presumption is rebuttable
and must yield to proof. Interest of justice is best served by
ascertaining the truth and the Court should be furnished with
the best available science and may not be left to bank upon
presumptions, unless science has no answer to the facts in
issue. When there is a conflict between a conclusive proof
envisaged under law and a proof based on scientific
advancement accepted by the world community to be correct,
the latter must prevail over the former. Further, Court has got
ample power to order a person to undergo a medical test and
at all times, it cannot be termed as in violation of Article 21 of
the Constitution of India. However, while passing such an
order, the Court should exercise discretion when it is very much
necessary in the interest of justice and it requires such an
exercise.
9. Coming to the facts of the case, now according to
the plaintiff, she is daughter of defendant No.1 and defendant
has let in evidence stating that he has no relationship with the
mother of the plaintiff and the plaintiff is not his daughter.
When that is the case of the defendant, the learned counsel
submits that the suit schedule property cannot be partitioned
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and he has made certain submissions, how a property cannot
be partitioned, whether it is a joint family property, whether it
can be partitioned or not partitioned and what is the share of
the plaintiff, whether she is entitled for a share or not. All
those issues are on merits of the matter, which have to be
decided by the Court basing on the evidence adduced by the
parties. When it comes to the fact that the defendant No.1 is
denying the fact that the plaintiff is his daughter, this DNA test
is the accurate way to prove that he is the father of the plaintiff
and in the facts and circumstances of the case, this Court is of
the view that this would be the right way to decide this
particular aspect. Hence, in the considered opinion of this
Court, I.A. No.14 filed by the plaintiff has to be allowed.
Accordingly, the following:
ORDER
(1) The order dated 19.03.2022 passed on
I.A. No.14 in O.S. No.179/2010 on the file of
the Additional Civil Judge and JMFC., Hunsur is
set aside and consequently, I.A. No.14 is
allowed.
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(2) Accordingly, the writ petition is allowed.
(3) Pending I.As., if any, shall stand closed.
SD/-
JUDGE
SMA
