S.Balaji vs K.Sugavanam
2023 Latest Caselaw 10026 Mad

                                                                                  C.R.P.(PD)No.2090 of 2019



                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                      DATED: 09.08.2023

                                                           CORAM :

                         THE HONOURABLE MR.JUSTICE V. LAKSHMINARAYANAN

                                                  C.R.P(PD)No.2090 of 2019
                                                  and CMP.No.13527 of 2019

                     S.Balaji                                                          ... Petitioner

                                                                vs

                     1.K.Sugavanam

                     2.Minor Arivudainambi @ Aruludainambi
                       Represented by his Father and Natural Guardian
                       K.Sugavanam

                     3.M.Manonmani

                     4.R.Shanmugam

                     5.Loganathan                                                      .. Respondents

                                  Petition filed under Article 227 of the Constitution of India against
                     the Fair order and Decree dated 18.12.2018 made in I.A.No.353 of 2018
                     in O.S.No.269 of 2016 on the file of the III Additional District Judge,
                     Salem.
                                        For Petitioner      : Mr.R.Nalliappan

                                        For Respondents : No Appearance


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                                                                               C.R.P.(PD)No.2090 of 2019

                                                         ORDER

This revision challenges the order of the III Additional District

Judge, Salem in I.A.No.353 of 2018 in O.S.No.269 of 2016. The plaintiff

is the civil revision petitioner. According to the plaintiff, he was born to

one Prema and one K.Sugavanam on 13.03.1993 at Shanthi Nursing

Home, Salem-7. In order to substantiate the same, he has produced Ex.P1

the birth certificate issued by the Salem City Municipal Corporation on

23.09.2015. He presented a suit for partition on the ground that

Sugavanam being his father on whom the joint family properties had

devolved and as he is the son of the Sugavanam and Prema, he is entitled

to a share.

2.Sugavanam, the 1st defendant entered appearance in the case and

filed a written statement totally denying the relationship between Prema

and himself. According to him, he does not know the existence of Prema

and is married to one Velumani from 1996 onwards through whom the

2nd defendant was born.

3.A case was sought to be projected that Prema married one

Selvam and the petitioner is the son of Selvam and not the son of the 1st

defendant. Parties entered the witness box and projected their respective

cases. The learned trial Judge dismissed the application filed for DNA

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C.R.P.(PD)No.2090 of 2019

profiling on the ground that the plaintiff has not proved that he has born

to Sugavanam.

4.I heard Mr.R.Nalliappan, learned counsel who appeared for the

petitioner. The respondents though served has not entered appearance.

5.The position of law with respect to DNA profiling has been

settled by the Supreme Court in Dipanwita Roy v. Ronobroto Roy (2015

1 SCC 365). The relevant paragraph is as follows:

'12.We would, however, while upholding the order passed by the High Court, consider it just and appropriate to record a caveat, giving the appellant-wife liberty to comply with or disregard the order passed by the High Court, requiring the holding of the DNA test. In case, she accepts the direction issued by the High Court, the DNA test will determine conclusively the veracity of accusation levelled by the respondent-husband, against her. In case, she declines to comply with the direction issued by the High Court, the allegation would be determined by the concerned Court, by drawing a presumption of the nature contemplated in Section 114 of the Indian Evidence Act, especially, in terms of illustration (h) thereof. Section 114 as also illustration (h), referred to above, are being extracted hereunder:

“114. Court may presume existence of certain facts – The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustration (h) - That if a man refuses to answer a question which he is not compelled to answer by law, the answer, if given, would be unfavourable to him.” This course has been adopted to preserve the right of individual privacy to the extent possible. Of course, without sacrificing the cause of justice. By adopting the above course, the issue of infidelity alone would be determined, without expressly disturbing the presumption contemplated under Section 114 of the Indian Evidence Act.

Even though, as already stated above, undoubtedly the issue of legitimacy would also be incidentally involved.'

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C.R.P.(PD)No.2090 of 2019

6.A reading of the said judgment would show that where there is a

dispute in paternity, DNA profiling will conclusively determine the

veracity of the acquisition. In other words, if the DNA report is available

before the Court, it would prove either Sugavanam is the father of the

petitioner or he is not. That will either confirm the basis on which the

suit has been presented or the basis of the suit itself will vanish.

7.Under similar circumstances, this Court in CRP(PD)No.80 of

2017 dated 08.01.2021 has held that the Court stood in case of serious

dispute in paternity adopt the procedure of DNA profiling. In the present

case as narrated above, there is a serious dispute whether the petitioner

Balaji was born as a result of the marriage between Prema and

Sugavanam or whether he is the son of Selvam.

8.The Court has conducted a mini trial within a trial and has come

to a conclusion that the petitioner has not proved with adequate

documents that Sugavanam is his father. I am unable to appreciate the

approach of the Court for the simple reason, in case there were

documents apart from Ex.PW1 (birth certificate) to substantiate the facts

that Balaji was born to Sugavanam, the question of his DNA profiling

itself would not arise.

9.Being left with no other option, the only available tool with the https://www.mhc.tn.gov.in/judis

C.R.P.(PD)No.2090 of 2019

plaintiff to prove his case is DNA profiling. Consequently, I set aside the

order of the trial Court in I.A.No.353 of 2018 in O.S.No.269 of 2016 and

allow the application. It is open to the 1st defendant/Sugavanam either to

give his blood samples or refuse to give the same. In case, he gives his

blood samples, the same shall be sent for DNA testing along with the

blood samples of Prema and the petitioner for comparison to Forensic

Science Laboratory, Kamarajar Salai, Chennai. In case the 1st defendant

refuses to give his blood samples, then the Court may draw adverse

inference as provided under Section 114 of the Indian Evidence Act.

10.The trial Court shall ensure that the samples are drawn in a

proper manner under its supervision and sent for DNA profiling to

Forensic Science Laboratory, Chennai without there being any possibility

of tampering. This civil revision petition is allowed. No costs.

Consequently, connected miscellaneous petition is closed.

09.08.2023 Index:Yes/No Speaking order/Non-speaking order Neutral Citation:Yes/No vs

To

The III Additional District Judge, Salem.

https://www.mhc.tn.gov.in/judis

C.R.P.(PD)No.2090 of 2019

V. LAKSHMINARAYANAN,J.

vs

C.R.P(PD)No.2090 of 2019 and CMP.No.13527 of 2019

09.08.2023

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