Radhakrishnan vs Leela
2021 Latest Caselaw 5858 Ker

OP (FC).No.764 OF 2019

                              1

         IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT

      THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE

                              &

              THE HONOURABLE MR.JUSTICE C.S.DIAS

THURSDAY, THE 18TH DAY OF FEBRUARY 2021 / 29TH MAGHA,1942

                    OP (FC).No.764 OF 2019

 AGAINST THE ORDER IN I.A NO.1074/2019 IN OP 444/2014 OF
                 FAMILY COURT, ATTINGAL


PETITIONER:

              RADHAKRISHNAN
              AGED 67 YEARS
              S/O. BHARGAVAN, NAGARAJA BUILDING, KUMBARA
              STREET, DEVAHALLIL TOWN, BANGALORE RURAL
              DISTRICT,KARNATAKA

              BY ADV. SRI.B.S.SURESH (CHIRAKKARA)

RESPONDENTS:

     1        LEELA, AGED 82 YEARS
              W/O. LATE BHARGAVAN, BHAMA NIVAS,
              CHEKKALAVILAKOM, KADAKKAVOOR,PIN-695 309

     2        ASHA,
              AGED 52 YEARS
              D/O. LEELA,BHAMA NIVAS, CHEKKALAVILAKOM,
              KADAKKAVOOR,PIN-695 309

              R1-2 BY ADV. SRI.J.S.AJITHKUMAR

     THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON
18-02-2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 OP (FC).No.764 OF 2019

                            2


                         JUDGMENT

Dated this the 18th day of February 2021

C.S.Dias, J.

The original petition is filed challenging the

order passed in I.A No.1074/2019 (Ext.P3) in O.P

444/2014 of the Family Court, Attingal, dismissing an

application filed for conducting a DNA test.

2. The petitioner in this original petition had

filed O.P. No.444/2014 seeking a declaration that he

is the sole lineal decedent of late Bhargavan - his

father and was born in the wedlock between

Bhargavan and the 1st respondent - his mother.

According to the petitioner, Bhargavan died intestate

on 4.11.1998. Therefore, only he and his mother are

the legal heirs of Bhargavan and he is entitled to half

share in the petition schedule properties. It is his

case that the 2nd respondent was born out of an illicit

relationship between his mother - the 1st respondent OP (FC).No.764 OF 2019

and a third person. Therefore, the 2 nd respondent is

not entitled for a share in the properties of

Bhargavan. In order to ascertain the paternity of

the 2nd respondent, the petitioner wants her to be

subjected to a DNA test, which would resolve the

controversy in the case. Hence the application.

3. The application was vehementally opposed

by the respondents, who filed a written objection

refuting the allegations in the affidavit accompanying

the application. According to the respondents, it was

the 1st respondent - the mother of the petitioner and

the 2nd respondent, who is the most competent

person to speak about the paternity of the 2 nd

respondent. The 1st respondent has vouched the

paternity of the 2nd respondent. The 2nd respondent

was born in the wedlock between the 1 st respondent

and Bhargavan, while they were cohabiting as

husband and wife. Bhargavan had acknowledged

the paternity of the 2nd respondent, who is now aged OP (FC).No.764 OF 2019

53 years. The sole intention of the petitioner is to

demoralise and humiliate the respondents.

4. The Family Court, after relying on Section

112 of the Indian Evidence Act, 1872 and the law laid

down by the Hon'ble Supreme Court in Dipan Wita

Roy V. Ronobroto Roy [AIR 2015 SC 418], came to

the conclusion that the DNA test sought for by the

petitioner was totally unwarranted. Accordingly, the

application has been dismissed.

5. Confronted with Ext.P3 order, the petitioner

is before this Court.

6. Heard the learned counsel appearing for the

petitioner and the learned counsel appearing for the

respondent.

7. Section 112 of the Indian Evidence Act

reads as follows:

OP (FC).No.764 OF 2019

"Birth during marriage, conclusive proof of legitimacy:- The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after the dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten."

8. The Hon'ble Supreme Court and this Court

have in a plethora of decisions held that a DNA test

shall not be ordered in a routine and casual manner

on the mere asking of the parties.

9. A Division Bench of this Court in Sindhu v.

Nagendra [2019 (4) KHC 678], has succinctly laid

down the law that the Courts are bound to consider

whether a DNA test is eminently needed in a case or

not.

10. The allegation put-forth by the petitioner in

O.P.No.444/2014 is that he is the sole lineal decadent

of Bhargavan and the 1st respondent. Neither did OP (FC).No.764 OF 2019

Bhargavan nor the the petitioner have a case that the

2nd respondent was not born during the subsistence of

the marriage between Bhargavan and the 1 st

respondent. Going by the rigour of Section 112 of the

Indian Evidence Act, it is conclusive proof that the 2 nd

respondent is the daughter of Bhargavan and the 1 st

respondent, unless the petitioner proves with cogent

evidence that Bhargavan did not have access to the

1st respondent during their period of cohabitation.

Is the petitioner competent to prove non-access

between his parents, 53 years after the birth of the

2nd respondent, is doubtful. Moreover, the petitioner

has named the alleged paramour of the 1 st

respondent to whom the 2nd respondent was

allegedly born. Wisdom dawned on the petitioner to

question the chastity of his mother and bastardise the

2nd respondent, only after the death of his father and

after the succession opened. This casts a serious

doubt in the bonafides of the claim. With such vague OP (FC).No.764 OF 2019

and nebulous accusations in the affidavit in support

of the application, we hold that the petitioner cannot

water down the rigour of Section 112 of the Indian

Evidence Act. The entire onus of proof to prove that

the 1st respondent did not have access to Bhargavan

as provided under Section 112 of the Act is caste

upon the petitioner. On the basis of wild and

reckless accusations, the petitioner cannot seek to

subject the 2nd respondent to DNA test.

11. We do not find any illegality or error in the

impugned Ext.P3 order warranting interference by

this Court in exercise of its supervisory jurisdiction as

enshrined under Article 227 of the Constitution of

India. In fact, this original petition deserves to be

dismissed with exemplary costs, but we refrain from

imposing taking note of the peculiar facts of the

case. Nevertheless, we direct the Family Court to

decide O.P. No.444/2014 on its merits, untrammelled

by any observation made in this judgment, as OP (FC).No.764 OF 2019

expeditiously as possible, in accordance with law. The

original petition is groundless and is consequently

dismissed.

Sd/-

A.MUHAMED MUSTAQUE

JUDGE

Sd/-

C.S.DIAS ma/19.2.2021 /True copy/ JUDGE OP (FC).No.764 OF 2019

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 THE COPY OF THE IA NO.1074/2019 IN OS 444/2014 DATED MARCH 2019

EXHIBIT P2 THE COPY OF THE OBJECTION FILED BY THE RESPONDENTS DATED 27.4.2019 OF EXHIBIT P1 APPLICATION

EXHIBIT P3 THE COPY OF THE ORDER IN IA NO.1074/2019 IN OS NO.444/2014 DATED 16.8.19