Kerala High Court
Renuka vs C.Balamani @ Rugmini on 17 March, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR
WEDNESDAY, THE 17TH DAY OF MARCH 2021 / 26TH PHALGUNA, 1942
OP(C).No.1263 OF 2020
AGAINST THE ORDER/JUDGMENT IN OS 394/2015 OF MUNSIFF COURT,
OTTAPPALAM
PETITIONER/PLAINTIFF:
RENUKA
AGED 55 YEARS
D/O RAGHAVAN EZHUTHASSAN, PATHINARUPOTHIYIL VEEDU,
CHERUKATTUPULAM AMSOM, VELLIYADA DESOM, OTTAPALAM
TALUK, PALAKKAD DISTRICT
BY ADV. SRI.P.JAYARAM
RESPONDENTS/DEFENDANTS:
1 C.BALAMANI @ RUGMINI
AGED 84 YEARS
W/O RAGHAVAN EZHUTHASSAN, PATHINARUPOTHIYIL VEEDU,
CHERUKATTUPULAM P.O.VELLIYADA DESOM, OTTAPALAM TALUK,
PALAKKAD DISTRICT, PIN-672 522.
2 MOHANAN,
AGED 59 YEARS
S/O RAGHAVAN EZHUTHASSAN, PATHINARUPOTHIYIL VEEDU,
CHERUKATTUPULAM P.O.VELLIYADA DESOM, OTTAPALAM TALUK,
PALAKKAD DISTRICT, PIN-672 522.
3 NALINI,
AGED 56 YEARS
D/O RAGHAVAN EZHUTHASSAN, PATHINARUPOTHIYIL VEEDU,
CHERUKATTUPULAM P.O.VELLIYADA DESOM, OTTAPALAM TALUK,
PALAKKAD DISTRICT, PIN-672 522.
R2-3 BY ADV. SRI.K.AMAR RAGH
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 17.03.2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C).No.1263 OF 2020
2
JUDGMENT
Dated this the 17th day of March 2021
The plaintiff in the suit for partition in O.S.No.394/2015
challenges Ext.P7 order passed by Munsiff Court, Ottappalam, rejecting her
application for sending blood samples of herself and 2 nd defendant in the
suit for DNA analysis.
2. She claims to be the daughter of Sri.Raghavan
Ezhuthassan contending that her mother, 1st defendant, was married to
Sri.Ezhuthassan and she was born to the spouses. The contesting
defendants denied her relationship with deceased Sri.Raghavan Ezhuthassan
and contended that she was not born to him. The application for sending
blood sample for DNA test analysis was also opposed by the contesting
defendants.
3. The court below dismissed the application by impugned
order taking a view that there are other means for proving the relationship.
It was pointed out that documents like admission register, S.S.L.C. book and
birth certificate etc. could be obtained and produced before the court below
to prove the disputed relationship. The court below relied on Ext.P8
application submitted by the 1st defendant in M.C.No. 15/1973 before
Additional First Class Magistrate, Ottappalam, in which she had conceded
that she did not have any relationship with deceased Sri.Ezhuthassan
OP(C).No.1263 OF 2020
against whom she claimed the maintenance for the minor daughter, the
plaintiff herein.
4. I heard the learned counsel for the petitioner.
5. The view taken by the court below that there are other
means available for proof of relationship does not appear to be very much
sound in as much as the basic principle is that the evidence shall not be shut
out. The petitioner has every right under law to lead scientific evidence by
availing of an opportunity to cause the blood samples to be subjected to
DNA test by the expert. The 2nd defendant is the son of deceased
Sri.Raghavan Ezhuthassan.
6. According to the petitioner, if blood samples of petitioner
as well as 2nd defendant were taken and forwarded for DNA analysis, it will
bring out a reliable scientific evidence to prove the disputed relationship.
The reliance placed by the court below on Ext.P8 in support of rejection of
application also does not appear to be sound. Simply because the 1 st
defendant in a claim for maintenance, made a concession that the plaintiff
was not born to the deceased Sri.Raghavan Ezhuthassan may not strictly
bind the plaintiff, despite the fact that the statement was made by the
guardian.
7. The learned counsel for the petitioner points out that the
petitioner is a physically challenged person and she has every right and
opportunity under law to apply for DNA test and evidence in this regard may
OP(C).No.1263 OF 2020
not be shut out. The question as to whether the plaintiff is the daughter of
the deceased is a matter of evidence. And simply because of Ext.P8
statement made by the 1st defendant, the right and opportunity of the
plaintiff to bring in scientific evidence cannot be denied.
8. Looking at the entire facts and circumstances, I am of the
view that the impugned order cannot be sustained under law for legal
reasons. The petitioner should get an opportunity to prove the disputed
relationship by resort to DNA test. The impugned order is liable to be set
aside.
In the result, petition is allowed setting aside the impugned
order dated 23.03.2020. I.A.No.2577/2019 in O.S.No.394/2015 is allowed.
The court below shall issue necessary direction for sending the blood sample
of plaintiff and 2nd defendant for DNA analysis. This being a suit of 2015, the
Munsiff Court, Ottappalam is directed to put in all efforts to see that an old
suit on its file is finally disposed of as expeditiously as possible.
Sd/-
T.V.ANILKUMAR
JUDGE
SMF
OP(C).No.1263 OF 2020
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE PLAINT IN OS NO 394/2015,
ON THE FILES OF MUNSIFF COURT, OTTAPALAM.
EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT FILED BY
THE 1ST DEFENDANT IN OS NO 394/2015, ON THE
FILES OF MUNSIFF COURT, OTTAPALAM
EXHIBIT P3 TRUE COPY OF THE WRITTEN STATEMENT FILED BY
THE 2ND DEFENDANT IN OS NO 394/2015, ON THE
FILES OF MUNSIFF COURT, OTTAPALAM
EXHIBIT P4 TRUE COPY OF THE WRITTEN STATEMENT FILED BY
THE 3RD DEFENDANT IN OS NO 394/2015, ON THE
FILES OF MUNSIFF COURT, OTTAPALAM
EXHIBIT P5 TRUE COPY OF THE AFFIDAVIT IN IA
NO.2577/2019 IN O.S NO 394/2015, ON THE
FILES OF MUNSIFF COURT, OTTAPALAM
EXHIBIT P6 TRUE COPY OF THE COUNTER STATEMENT FILED BY
THE 2ND DEFENDANT IN IA NO.2577/2019 IN OS
NO 394/2015, ON THE FILES OF MUNSIFF COURT,
OTTAPALAM
EXHIBIT P7 TRUE COPY OF THE ORDER DATED 23.3.2020 IN
IA NO.2577/2019 IN O.S NO 394/2015, ON THE
FILES OF MUNSIFFS COURT, OTTAPALAM
EXHIBIT P8 TRUE COPY OF THE ORDER DATED 20.12.1973 IN
M.C NO 15/1973, ON THE FILES OF ADDL.1ST
CLASS MAGISTRATE, OTTAPALAM AND THE
COMPROMISE ENTERED INTO BY THE PARTIES
THEREIN.
//TRUE COPY//
PA TO JUDGE
