Madras High Court
Lyloon vs Sasireka on 29 October, 2024
C.R.P.No.3876 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 29.10.2024
CORAM :
THE HON'BLE MR.JUSTICE V.LAKSHMINARAYANAN
C.R.P.No.3876 of 2024
and C.M.P.No.21372 of 2024
Lyloon .. Petitioner
Versus
1.Sasireka
2.Sabarishkumar
3.V.S.Sudhan
4.Kathija
5.Rahmath Bi
6.Shahiroon
7.Hiralal
8.Gowherlal
9.Biji @ Fazasulula
10.Kevarchand
11.Sayeed Sauhad
12.Rajadurai
13.Kandhasamy
14.Susilkumar .. Respondents
Prayer: Civil Revision Petition filed under Article 227 of the Constitution
of India to set aside the fair and decreetal order dated 04.04.2024 made in
I.A.No.1 of 2022 in O.S.No.12 of 2021 on the file of the III Additional
District and Sessions Judges' Court, Virudhachalam
For Petitioner : Mr.T.Sivagnanasambandan
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1/8
C.R.P.No.3876 of 2024
ORDER
The case of the plaintiff is that she was born from the wedlock
between one Abdul Majid @ Mothilal and one Fathima Bi @
Vijayalakshmi. On the basis of this claim, she presented a suit for partition
and separate possession.
2. The defendants 7 to 9 entered appearance and filed a written
statement stating that the plaintiff was born to Kathija and Rahmath Bi @
Kabaarsheriff. Since the plaintiff has asserted that she is an offspring of
Mothilal and Fathima Bi, the defendants 7 to 9 took out an application
under Order XXVI Rule 9 of the Code of Civil Procedure to send the
samples for DNA examination.
3. The learned Trial Judge, after receipt of a counter from the civil
revision petitioner, allowed the application seeking for a direction to the
parties to undergo DNA test. Aggrieved by the same, the plaintiff is on
revision
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4. I have heard Mr.T.Sivagnanasambandan for the civil revision
petitioner.
5. Mr.T.Sivagnansambandan submits that a perusal of the plaint
documents, namely document Nos.4 to 7 shows that the plaintff is the
daughter of Mothilal @ Abdul Majid. When these documents clinchingly
proved the same, automatically Section 112 of the Indian Evidence Act
applies. Therefore, the Court necessarily has come to a conclusion that the
plaintiff is the daughter of Abdul Majid @ Mothilal and Vijayalakshmi @
Fathima Bi. He states that in the light of Section 112 of the Indian Evidence
Act, the court below ought not to have allowed the application. He relies on
the Judgment of the Supreme Court in Yamanamma v. Basappa, Civil
Appeal No.9811 of 2024 dated 27.08.2024 to press his point.
6. I have carefully considered the submission of
Mr.Sivagnanasambandan
7. It is a clear and categorical case of the defendants that the plaintff
is the daughter of Rahmath Bi and Kabarsheriff. They do not accept that the
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petitioner was born to Mothilal @ Abdul Majid and Vijayalakshmi @
Fathima Bi.
8. The scope of Section 112 is that if a child is born during the
continuance of a valid marriage between the mother and any other man, or
within 280 days from the date of dissolution of the marriage and the mother
has not remarried, the offspring shall be treated as a legitimate child of the
person with whom, the mother was in relationship. This provision has
exception where a party can prove that there was no access between the man
and a wife for the purpose of proving the paternity of the child so born from
the relationship. This section was incorporated in 1872. Scientific
developments have taken place, which has to be taken note of by the courts.
9. A DNA test, the Supreme Court has held, proves the claim of
paternity or maternity when is in dispute. The principle developed in
Gautam Kundu v. State of West Bengal and another, 1993 AIR 2295 has
been clarified by the Supreme Court in Dipanwita Roy v. Ronobroto Roy,
(2015) 1 SCC 365. Therefore, it can no more be argued that DNA does not
point out conclusively as regard the relationship between the parties.
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10. With respect to the judgment relied in Yamanamma's case by
Mr.T.Sivagnansambandan, I have to point out that it was argued before the
Supreme Court that no body can be forced to undergo DNA test. The said
submisson was rejected by the supreme court. Hon'ble Mr.Justice
M.M.Sundresh, speaking for the bench, held that the DNA test is meant to
facilitate the court to come to its conclusion with respect to paternity. It
further held that it is for the court to make a decision as DNA test would, at
best, constitute a piece of evidence for the purpose of appreciation.
11. Therefore, it makes it clear that if a DNA test is conducted and a
report is submitted, it would only be treated as an expert evidence in terms
of Section 45 of the Indian Evidene Act. It does not bar
Mr.T.Sivagnanasambandan's client to afford evidence in terms of Section
112 of the Indian Evidence Act. It is for the trial court to decide as to
whether it is preferring the evidence that comes by way of DNA test or the
evidence that would be given by Sivagnanasambandan's client to prove she
is the daughter of Abdul Majid and Fathima Bi at the time of disposal of the
case.
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12. Suffice it to say, when the trial court has taken a view that the
report of the DNA test will enable it to come to a concusion in the suit, it
need not be intereferred with in a revision, in the light of the view expressed
by the Supreme Court in Dipanwita Roy's case
13. In the light of the above discussion, I do not find any merit in the
revision. Accordingly, this civil revision petition is dismissed. It is left open
to the plaintiff to prove, by way of whatever evidence is available, that she
was in fact born to Abdul Majid @ Mothilal and Fathima Bi @
Vijayalakshmi. No costs. Consequently, the connected miscellaneous
petition is closed.
29.10.2024
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Index : yes/no
Speaking order/Non-speaking order
Neutral Citation : yes/no
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To
The III Additional District and Sessions Judges' Court, Virudhachalam
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V.LAKSHMINARAYANAN, J.
nl
29.10.2024
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