Gangadharan vs Sreedevi Amma
2024 Latest Caselaw 12317 Ker

Kerala High Court

Gangadharan vs Sreedevi Amma on 20 May, 2024

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
               THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
         MONDAY, THE 20TH DAY OF MAY 2024 / 30TH VAISAKHA, 1946
                        OP(C) NO. 2833 OF 2023
AGAINST THE ORDER IN OS NO.225 OF 2017 OF THE MUNSIFF MAGISTRATE
COURT,PATTAMBI
PETITIONER/1st RESPONDENT/1st DEFENDANT:

             GANGADHARAN
             AGED 74 YEARS
             S/O. EDAPPALATH MELETHIL KUTTIKRISHNAN NAIR, AGED 74
             YEARS, THANNEERKODE DESAM, CHALISSERY VILLAGE, PATTAMBI
             TALUK, PALAKKAD DISTRICT, VS., PIN - 679536
             BY ADVS.
             SANTHEEP ANKARATH
             P.ANIRUDHAN


RESPONDENTS/PETITIONER & 2nd RESPONDENT/PLAINTIFF AND 2nd DEFENDANT:

     1       SREEDEVI AMMA
             AGED 78 YEARS
             D/O. EDAPPALATH MELETHIL KUTTIKRISHNAN NAIR,
             THANNEERKODE DESAM, CHALISSERY VILLAGE, PATTAMBI TALUK,
             PALAKKAD DISTRICT, PIN - 679536
     2       SARADHA
             D/O. EDAPPALATH MELETHIL KUTTIKRISHNAN NAIR,
             THANNEERKODE DESAM, CHALISSERY VILLAGE, PATTAMBI TALUK,
             PALAKKAD DISTRICT, PIN - 679536
             BY ADVS.
             VINOD BHAT S
             ANAGHA LAKSHMY RAMAN(K/000767/2015)
             V.NAMITHA(K/1090/2011)
             GREESHMA CHANDRIKA.R(K/807/2020)


     THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 20.05.2024,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 O.P.(C).No. 2833 of 2023
                                 ..2..




                                                        'C.R.'
                J U D G M E N T

Dated this the 20th day of May, 2024

The moot question involved in this Original

Petition is whether a DNA test can be permitted

- as sought for by the plaintiff in a suit for

partition - in proof of her paternity, so as to

enable her to lay a claim over the assets left by

the person, whom the plaintiff propounds as her

father? The plaintiff claims to be the daughter of

Sri.Kuttikrishnan Nair and her mother Madhavi

Amma. She preferred an application for conducting

sibling DNA test, which was allowed, vide Ext.P12

order. The same is under challenge in this

Original Petition. The petitioner herein is the 1st

defendant in the suit and the respondents are the

plaintiff and the 2nd defendant, respectively. The

essential facts to be noted are as follows:

The plaintiff Sreedevi Amma preferred the suit

..3..

O.S.No.225/2017 of the Munsiff's Court, Pattambi,

on the premise that the plaint schedule property

belonged to one Kuttikrishnan Nair, who married

Madhavi Amma, and that plaintiff is the daughter

born in that wedlock. During the subsistence of

that marriage, Kuttikrishnan Nair married another

women by name Lakshmi Appissi, in which

relationship, the defendants are born. The

plaintiff would aver that the matrimonial tie

between the Kuttikrishnan Nair and Madhavi Amma

continued until the death of the former in the

year 1983. Accordingly, the plaintiff claims one

fourth right each for Madhavi Amma and herself,

and one fourth right each to the defendants.

2. The defendants filed written statement

specifically denying that Kuttikrishan Nair never

married Madhavi Amma, and that the plaintiff is

not the daughter of Kuttikrishnan Nair. According

to the defendants, Kuttikrishnan Nair married

..4..

Lakshmi Appissi and defendants were born in that

wedlock. The defendants would clarify that,

Kuttikrishnan Nair passed away on 30.10.1987; and

not in the year 1983.

3. Ext.P3 interlocutory application I.A.No.669/2022

- in which the impugned Ext.P12 order was passed -

was preferred by the plaintiff seeking sibling DNA

test to be conducted with the blood samples of the

plaintiff, as also, the defendants. In the

affidavit in support of the said application, the

plaintiff would aver that, she is prepared to

prove customary marriage between Kuttikrishnan

Nair and Madhavi Amma, and that a sibling DNA test

would disprove the defense contention. It was

specifically averred that, the marriage between

Kuttikrishnan Nair and Madhavi Amma took place

81 years back; that nobody who witnessed that

marriage are now alive; that there is no direct

evidence to prove the same; that plaintiff got

..5..

knowledge that her father is Kuttikrishnan Nair

from her mother Madhavi Amma and she remembers

living with Kuttikrishnan Nair upto the age of 5

years; and therefore, in the absence of any other

evidence, a DNA test is quite essential, is the

contention urged.

4. The trial court deferred the said

interlocutory application for consideration after

evidence. PWs 1 to 5 were examined, of which PW5

is none other than the brother of the plaintiff.

5. The defendants filed counter affidavit

opposing I.A.No.669/2022 on various grounds.

6. By Ext.P10 order, the trial court allowed

Ext.P3 interlocutory application, challenging

which, the present petitioner preferred

O.P.(C)No.191/2023. After referring to various

decisions on the question of desirability of

..6..

having a DNA test, a learned Single Judge of this

Court allowed the said Original Petition, finding

inter alia as follows:

"Thus, without expressing anything on the merits of the findings rendered in Ext P10 order, I relegate the parties back to the court below, for the purpose of deciding whether the first respondent has made out a case for the court below to hold that there was a marriage between Kuttikrishnan Nair and the mother of the first respondent, so as to enable the first respondent to be conferred with the right to have a DNA profiling test."

7. After re-consideration, Ext.P12 order was

passed, again allowing Ext.P3 I.A. for conducting

sibling DNA test.

8. Heard Sri.Santheep Ankarath, learned counsel

for the petitioner/defendant and Sri.S.Vinod Bhat,

learned counsel for the respondent/plaintiff.

There is no representation for the 2nd respondent/

2nd defendant, apparently for the reason that she

..7..

supports the petitioner.

9. The desirability of having a DNA test

conducted to prove the legitimacy of a child born

in a marriage was considered by a two Judges Bench

of the Hon'ble Supreme Court in Goutam Kundu v.

State of West Bengal and another [1993 (3) SCC

418]. The relevant findings in paragraph no.26 are

extracted here below, of which emphasis is made to

finding nos. 3 and 4, for the purpose of the

present Original Petition.

"26. From the above discussion it emerges-

(1) that courts in India cannot order blood test as a matter of course;

(2) wherever applications are made for such prayers in order to have roving inquiry, the prayer for blood test cannot be entertained.

(3) There must be a strong prima facie case in that the husband must establish non-access in order to dispel the presumption arising under Section 112 of the Evidence Act.

..8..

(4) The court must carefully examine as to what would be the consequence of ordering the blood test; whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman.

(5) No one can be compelled to give sample of blood for analysis."

10. Issue again fell for consideration by a three

Judges Bench in Sharda v. Dharmpal [2003 (4) SCC

493]. The relevant findings as contained in

paragraph no.81 are extracted here below, where

again emphasis is given to finding no. 3, for the

present purpose.

"81. To sum up, our conclusions are:

1. A matrimonial court has the power to order a person to undergo medical test.

2. Passing of such an order by the court would not be in violation of the right to personal liberty under Article 21 of the Indian Constitution.

3. However, the court should exercise such a power if the applicant has a strong prima facie case and there is sufficient material before the court. If despite the order of the court, the respondent refuses to submit

..9..

himself to medical examination, the court will be entitled to draw an adverse inference against him."

11. In Bhabani Prasad Jena v. Convenor Secretary,

Orissa State Commission for Women and Others [2010

(8) SCC 633], the Hon'ble Supreme Court propounded

"the test of eminent need" in deciding the

question whether an application for DNA test has

to be allowed or not. The relevant findings in

paragraph no.13 of the judgment are extracted

herebelow:

"13. In a matter where paternity of a child is in issue before the court, the use of DNA is an extremely delicate and sensitive aspect. One view is that when modern science gives means of ascertaining the paternity of a child, there should not be any hesitation to use those means whenever the occasion requires. The other view is that the court must be reluctant in use of such scientific advances and tools which result in invasion of right to privacy of an individual and may not only be prejudicial to the rights of the parties but may have devastating effect on the child. Sometimes the result of such scientific test may bastardise an innocent

..10..

child even though his mother and her spouse were living together during the time of conception. In our view, when there is apparent conflict between the right to privacy of a person not to submit himself forcibly to medical examination and duty of the court to reach the truth, the court must exercise its discretion only after balancing the interests of the parties and on due consideration whether for a just decision in the matter, DNA is eminently needed. DNA in a matter relating to paternity of a child should not be directed by the court as a matter of course or in a routine manner, whenever such a request is made. The court has to consider diverse aspects including presumption under Section 112 of the Evidence Act; pros and cons of such order and the test of 'eminent need' whether it is not possible for the court to reach the truth without use of such test."

(underlined by me, for emphasis)

12. In Dipanwita Roy v. Ronobroto Roy [2015 (1)

SCC 365], all the above referred decisions were

considered by a two Judges Bench of the Hon'ble

Supreme Court, to conclude in paragraph no.16

that, it is quite permissible for a Court to

direct the DNA examination to determine the

..11..

veracity of one of the allegations constituting a

ground, on which a party would either succeed or

lose. However, the Hon'ble Supreme Court gives a

caveat that, if the direction to hold such a test

can be avoided, it should be so avoided.

13. From the judgments above referred, this Court

notice that, there is absolutely no dearth of

power for a Court, be it civil, matrimonial or

otherwise to direct the DNA analysis, provided the

outcome of the test would prove/disprove one of

the grounds based upon which a party may either

succeed or lose. However, the most clinching test

is the one as expatiated in Bhabani Prasad

Jena(supra), which is the test of "eminent need".

As held by the Hon'ble Supreme Court, in its quest

to unearth the truth, the Court can certainly

direct to conduct DNA test. However, the court has

to exercise its discretion only after balancing

the interests of the parties and upon due

..12..

consideration whether the DNA test is eminently

needed for a just decision in the matter. The same

cannot be directed as a matter of course or in a

routine manner. Instead, the Court has to consider

diverse aspects; the pros and cons of such order

and also as to whether it is possible for the

Court to reach a logical conclusion without use of

such test.

14. This Court is also impelled to observe that,

the desirability of having a DNA test conducted

would depend upon the facts and circumstances in

which it is sought for and especially in the

context of the relief prayed for. The

consideration to be received at the hands of the

court for an application to conduct DNA analysis

differs from each other (i) in a case where the

husband alleges adultery, where DNA analysis is

sought for to prove such allegation/ground of

adultery, (ii) in a case where the husband as a

..13..

defense in matrimonial matter alleges non access

to disown the paternity of the child, (iii) in a

case where an application for DNA test is opposed

disputing the very existence of the marriage

claimed. In Dipawita Roy (supra), the Hon'ble

Supreme Court in paragraph no.13, specifically

observed that, the judgments relied on by the

counsel for the appellant were on the pointed

subject of legitimacy of the child born during the

subsistence of a valid marriage. The situation

will undergo a seachange when a valid marriage, or

for that matter, a marriage itself is denied and

disputed. This Court may wind up the discussion by

reiterating and underscoring the requirement as

laid down in Goutam Kundu (supra) and also in

Sharda (supra) that to exercise the power of

directing the conduct of a DNA test, the applicant

has to establish, not merely a prima facie case

but a strong prima facie case, and there should be

sufficient material before the Court, justifying a

..14..

request for DNA analysis being allowed.

15. Coming to the instant facts, although it is

not desirable at this stage of the suit to comment

on the quality of the evidence adduced, this Court

is constrained to look into the evidence adduced

to some extent, to ascertain whether the

applicant/plaintiff had made out a strong prima

facie case, so as to allow Ext.P3 application for

a sibling DNA test. One thing which has to be

borne in mind is that, what is being enquired into

is not whether the plaintiff is the daughter of

Kuttikrishnan Nair. Instead, the true question

to be posed is whether the marriage between

Kuttikrishnan Nair and Madhavi Amma is established

as claimed in the plaint and further, whether the

plaintiff is a daughter born in that wedlock. One

can probe into the latter question only upon

establishing the former. The question is so posed

since the plaintiff has no case under Section 16

..15..

of the Hindu Marriage Act, as per the pleadings in

the plaint. Therefore, evidence as to the marriage

between Kuttikrishnan Nair and Madhavi Amma is

what is essentially required to be established in

order to ascertain a prima facie case, or for that

matter, a strong prima facie case.

16. Having gone through the evidence adduced by

PWs 1 to 5, this Court is of the prima facie

opinion that, the plaintiff could not establish a

strong prima facie case in proving a valid

marriage between Kuttikrishnan Nair and

Madhavi Amma. PW1 is none other than the

plaintiff. Even in Ext.P3 application for

conducting DNA test, her version is that, she came

to know about the marriage between Kuttikrishnan

Nair and Madhavi Amma, only as her mother's

version. The said knowledge of the plaintiff is

open to criticism as hearsay evidence. Another

aspect spoken to by the plaintiff is regarding her

..16..

memory that she was living with Kuttikrishnan Nair

and Madhavi Amma upto the age of five. The

veracity of that version has to be cross checked

with the evidence adduced by other witnesses as

well. It is relevant to note that all other

witnesses would admit in cross examination that

their knowledge about the marriage between

Kuttikrishnan Nair and Madhavi Amma is nothing,

but hearsay. Even the evidence adduced by PW5, the

brother of the plaintiff, could not vouchsafe the

plaintiff's claim that Kuttikrishnan Nair married

Madhavi Amma and that the plaintiff is the

daughter born in that wedlock. This Court is not

elaborating much on the evidence adduced, as the

same may have an adverse consequence on the fate

of the suit itself. Suffice to say that, a prima

facie case, much less a strong prima facie case,

has not been borne out to order a DNA test as

sought for in Ext.P3.

..17..

17. Another aspect which weighs with this Court to

interfere with Ext.P12 order is the pleadings as

contained in Ext.P3 application to the effect that

the impugned marriage took place 81 years back,

that no one who witnessed the marriage are alive

and that there exists no way to prove the

marriage, except through a DNA analysis. It

appears that, the plaintiff is completely

misconceived in seeking a DNA analysis for the

afore-stated reasons. As already held by the

Hon'ble Supreme Court, the existence of a strong

prima facie case is a sine qua non to seek conduct

of the DNA test. Here, in Ext.P3, the plaintiff/

applicant herself admits that there exists no

evidence, except the aspect sought to be proved by

DNA analysis to prove that the plaintiff is the

daughter of Madhavi Amma through Kuttikrishnan

Nair and consequentially, their marriage. That

apart, it is questionable as to why the plaintiff

did not choose to raise her claim during the life

..18..

time of her mother Madhavi Amma, though

Kuttikrishnan Nair passed away in the year 1987.

The present suit was instituted when the plaintiff

was aged 74 and therefore, none else can be blamed

for dearth of evidence through those persons, who

according to the plaintiff had witnessed the so-

claimed marriage. At any rate, the resultant

situation cannot be propounded as a reason to seek

a sibling DNA test.

18. It is of seminal important to note that, DNA

analysis, even if allowed, will not establish the

marriage between Kuttikrishnan Nair and Madhavi

Amma. At best, it may prove that the plaintiff is

the daughter of Kuttikrishnan Nair. The proof of

the same, by itself, would not carry the plaintiff

anywhere. The prayer is one for partition. The

claim is that, Kuttikrishnan Nair married Madhavi

Amma and plaintiff is their daughter. The further

claim is that, during the subsistence of the

..19..

marriage, Kuttikrishnan Nair maintained

relationship with Lakshmi Appissi, in which

relation the defendants are born. The above aspect

is highlighted only to point out that, the

plaintiff has no claim even under Section 16 of

the Hindu Marriage Act, as per the pleadings. Now,

assume for a moment, that such a plea is permitted

to be taken as an alternative one. Still, the

existence of a ceremonious/customary marriage is

again a sine qua non to maintain a claim under

Section 16 of the Hindu Marriage Act. See in this

regard, a Division Bench Judgment of this court

in Jayachandran and Others v. Valsala and Others

[2016 (2) KLT 81].

19. In the light of the above discussion, this

Court finds that Ext.P12 order cannot be

sustained. This court finds that, one cannot seek

DNA test to be done only in his/her attempt to

fish out evidence in support of his case. Unless

..20..

and until the applicant makes out a strong prima

facie case, such an application is not liable to

be allowed. In arriving at the above conclusion,

this Court also considers the devastating effect

[as pointed out in Bhabani Prasad Jena(supra)] on

the children of Lakshmi Appissi (the defendants in

the suit), more so, when all the witnesses -

except the plaintiff - would admit that Lakshmi

Appissi is believed to be the legally wedded wife

of Kuttikrishnan Nair by the people in the

locality. This Original Petition succeeds. Ext.P12

order is set aside. The trial court will now

proceed with the matter, in accordance with law,

untrammelled by any of the observations contained

in this judgment.

Sd/--

C. JAYACHANDRAN JUDGE 08/01/24

TR

..21..

APPENDIX OF OP(C) 2833/2023

PETITIONER EXHIBITS EXHIBIT P 1 TRUE COPY OF THE PLAINT DATED 30.10.2017 IN O.S. NO. 225/2017 ON THE FILE OF THE MUNSIFF - MAGISTRATE'S COURT, PATTAMBI EXHIBIT P 2 TRUE COPY OF WRITTEN STATEMENT DATED 29.9.2018 FILED BY THE DEFENDANTS IN O.S. NO. 225/2017 ON THE FILE OF THE MUNSIFF MAGISTRATE'S COURT, PATTAMBI. EXHIBIT P 3 TRUE COPY OF I.A. NO. 669/2022 DATED 11.7.2022 FILED BY THE RESPONDENT HEREIN IN O.S. NO. 225/2017 ON THE FILE OF THE MUNSIFF MAGISTRATE'S COURT, PATTAMBI.

EXHIBIT P 4 TRUE COPY OF DEPOSITION OF PW1 ALONG WITH AFFIDAVIT IN O.S. NO. 225/2017 ON THE FILE OF THE MUNSIFF MAGISTRATE'S COURT, PATTAMBI EXHIBIT P 5 TRUE COPY OF DEPOSITION OF PW2 ALONG WITH AFFIDAVIT IN O.S. NO. 225/2017 ON THE FILE OF THE MUNSIFF MAGISTRATE'S COURT, PATTAMBI.

EXHIBIT P 6 TRUE COPY OF DEPOSITION OF PW3 ALONG WITH AFFIDAVIT IN O.S. NO. 225/2017 ON THE FILE OF THE MUNSIFF MAGISTRATE'S COURT, PATTAMBI EXHIBIT P 7 TRUE COPY OF DEPOSITION OF PW4 ALONG WITH AFFIDAVIT IN O.S. NO. 225/2017 ON THE FILE OF THE MUNSIFF MAGISTRATE'S COURT, PATTAMBI.

EXHIBIT P 8 TRUE COPY OF DEPOSITION OF PW5 ALONG WITH AFFIDAVIT IN O.S. NO. 225/2017 ON THE FILE OF THE MUNSIFF MAGISTRATE'S COURT, PATTAMBI.

EXHIBIT P 9 TRUE COPY OF THE COUNTER STATEMENT DATED 10.10.2022 FILED IN I.A. NO. 669/2022 IN O.S. NO. 225/2017 ON THE FILE OF THE MUNSIFF - MAGISTRATE'S COURT, PATTAMBI.

EXHIBIT P 10 TRUE COPY OF ORDER DATED 21.12.2022 IN I.A. NO. 669/2022 IN O.S. NO. 225/2017

..22..

PASSED BY MUNSIFF - MAGISTRATE'S COURT, PATTAMBI.

EXHIBIT P 11 TRUE COPY OF THE JUDGMENT DATED 14.3.2023 IN OP (CIVIL) NO. 191 OF 2023 PASSED BY THIS HONOURABLE COURT.

EXHIBIT P 12 TRUE COPY OF THE ORDER DATED 30.11.2023 IN I.A. NO. 669/2012 IN O.S. NO.

                   225/2017    PASSED     BY     MUNSIFF    -
                   MAGISTRATE'S COURT, PATTAMBI.