Madras High Court
Divyasree @ Jayachitra vs P.Palani on 8 January, 2025
C.R.P.No.4917 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.01.2025
CORAM :
THE HON'BLE MR.JUSTICE V.LAKSHMINARAYANAN
C.R.P.No.4917 of 2024 &
CMP.No.27619 of 2024
Divyasree @ Jayachitra .. Petitioner
Versus
P.Palani .. Respondent
Prayer: Civil Revision Petition filed under Article 227 of the Constitution
of India to set aside the fair and final order dated 21.12.2023 made in
I.A.No.1 of 2019 in HMOP.No.117 of 2018 on the file of the Subordinate
Court, Ranipet, Vellore District.
For Petitioner : Mr.R.Vasudevan
For Respondent 1 : Mr.K.Venkatasubbu
for M/s.SarvaBauman Associates
ORDER
This civil revision petition arises against the order of the learned
Subordinate Judge at Ranipet in Vellore District in I.A.No.1 of 2019 in
HMOP.No.117 of 2018.
https://www.mhc.tn.gov.in/judis
2. The civil revision petitioner is the wife.
3. For the sake of convenience, the parties shall be referred to as the
husband and wife.
4. HMOP.No.117 of 2018 was filed by the husband invoking Section
13(1) of the Hindu Marriage Act. The parties married each other on
17.06.2007. From the wedlock, the couple were blessed with three children.
The first one was born in the year 2010, the second child was in the year
2012 and the third child in the year 2014.
5. Pending the proceedings, the husband filed an application in
I.A.No.1 of 2019. He wanted the court to appoint an Advocate
Commissioner to collect the samples from the wife and the three children so
as to obtain a report from the Forensic Science Laboratories, Chennai. The
report was for DNA profiling of the parents and the children. According to
the husband, the three children were not born from the wedlock. He pleaded
that there was a third party involved and he got to know about the
https://www.mhc.tn.gov.in/judis
relationship between the wife and the said third party, when the said third
party's wife accused him of being impotent. The petitioner questioned the
third party's wife and it was revealed by her that the wife had developed an
illicit intimacy with the said third party.
6. This application was resisted by the wife stating that on account of
disputes relating to the joint family properties, the husband and his brother's
wife (his sister-in-law) decided to wreck vengeance on her. She pointed out
that the sperm test of the husband, which reported that the husband's sperm
count is low, was conducted sometime in the year 2018, whereas the
children were born much before the said period. She alleged that the
husband is a drunkard and on account of regular consumption of alcohol,
his sperm count was low.
7. The learned Trial Judge considered the affidavit and counter and
came to the conclusion that in order to prove the “genuinity of the children,
DNA test is essential”. Consequently, she allowed the petition. Aggrieved
by the same, the wife has preferred this revision.
https://www.mhc.tn.gov.in/judis
8. When the matter came up on 09.12.2024, I requested
Mr.R.Vasudevan to serve the entire set of papers on Mr.S.P.Sampath
Kumar, the learned counsel who represents the husband in the court below.
The service was completed. M/s.Sarvabauman Associates entered
appearance for the husband.
9. I heard Mr.R.Vasudevan for the wife and Mr.Venkatasubban for
the husband.
10. The position of law with respect to DNA test to be performed on
the children in a divorce proceeding has been settled by the judgment of the
supreme court in Aparna Ajinkiya Firodia v. Ajinkiya Arun Firodia in
SLP (Civil).No.9855 of 2022 dated 20.02.2023. The Hon'ble Mrs.Justice
B.V.Nagarathna held that a strong presumption regarding the paternity of a
child, cannot be casually interfered with, by ordering a DNA test. The court
held, allegations of adultery must be proved by other evidences and not by
resorting to a DNA test of the child. After a detailed discussion, the Court
came to a conclusion that routinely ordering DNA tests, particularly in cases
where the issue of paternity is merely incidental to the controversy at hand,
https://www.mhc.tn.gov.in/judis
could contribute to the identity crisis for the child. The Court held that in
exceptional and deserving case alone, where such a test becomes
indispensable to resolve the controversy, the court should order a DNA test.
11. Applying the said judgment to the facts of the present case, the
allegation against the wife that she is living in adultery with a third party
would have to be proved by independent evidence. The route to prove the
adultery of the wife need not be through the DNA test of the children. This
is especially so when the law directs the court to presume the paternity
when the husband and wife have access to each other. This is as per Section
112 of the Indian Evidence Act, 1872.
12. Absolutely no reasons have been made in the impugned order as
to how this case falls under “exceptional circumstances”, as pointed out by
the Supreme Court. The issue of paternity of the children is not an issue in
the suit. The issue in the HMOP is that, while the wife was sharing
matrimonial bed with the husband, she also joined another party in the
same. This need not be proved only through a DNA test. The petitioner can
always prove the marital default of the wife, if any, through other evidences.
https://www.mhc.tn.gov.in/judis
13. In the light of the above discussion, I am unable to sustain the
order passed by the learned Subordinate Judge, Ranipet, at Vellore District
in I.A.No.1 of 2019 in HMOP.No.117 of 2018 dated 21.12.2023 and the
same is set aside.
14. It is open to the husband to prove his case by resorting to the
evidences other than by calling for DNA test of the children. At this stage,
Mr.K.Venkatasubban submits that the issue itself might be settled, in case,
the parties are referred to mediation. Mr.R.Vasudevan states that he has not
been instructed for reference to mediation.
15. The learned Subordinate Judge at Ranipet in Vellore District shall
enquire with the parties. If they are willing to settle the dispute by
mediation, the learned Judge is requested to refer them to the mediation
centre attached to the District Court at Vellore.
16. With the above observation, this civil revision petition stands
allowed. No costs. Consequently, the connected miscellaneous petition is
closed.
https://www.mhc.tn.gov.in/judis
08.01.2025
nl
Index : yes/no
Speaking order/Non-speaking order
Neutral Citation : yes/no
To
The Subordinate Court, Ranipet, Vellore District.
https://www.mhc.tn.gov.in/judis
V.LAKSHMINARAYANAN, J.
nl
08.01.2025
https://www.mhc.tn.gov.in/judis
