Research › Search › Judgment

Madras High Court · body

2005 DIGILAW 1085 (MAD)

Sakthivel v. Karpagam

2005-07-18

R.BANUMATHI

body2005
Judgment :- This revision is directed against the order of Subordinate Judge, Maduranthakam made in I.A.No. 763 of 2002 in H.M.O.P. No. 5 of 1999 dated 16.12.2002 dismissing the petition filed under Order XXVI, rule 10(9) read with Section 151 of C.P.C. to appoint an expert and also for conducting scientific investigation - to conduct DNA test and other medical investigation to ascertain parentage of the female child born on 18.4.1999. Husband is the Revision Petitioner. 2. The Revision Petitioner/husband married the Respondent on 19.11.1995. The spouse were living together. Out of their lawful wed lock, a female child was born on 24.8.1996. Thereafter, the Respondent had given birth to a second female child on 18.4.1999. According to the Revision Petitioner/husband, after the birth of first female child in 1996, the Respondent had not returned back to the matrimonial house. She is alleged to have developed illicit intimacy with another person. According to the Revision Petitioner/husband, there was no cohabitation for nearly three years. Though the spouses were not living together for about three years, due to illicit intimacy, the Respondent conceived in November 1998. The second female child was born on 18.4.1999. Alleging that the Respondent/wife has been living in adultery and denying the paternity of the second female child, the Revision Petitioner/husband has filed H.M.O.P. No. 5 of 1999 under Section 13 of Hindu Marriage Act for divorce. He sought for divorce on the ground of adultery. 3. Denying the averments in the petition, the Respondent/wife had filed counter statement contending that both the children were born only to the Revision Petitioner/husband and that he was treating her cruelly and also ill-treating her. The Respondent has filed the counter statement specifically denying allegations in the petition. She has denied any relation with one Padmanabhan with whom she is alleged to have illicit intimacy. 4. I.A.No. 61 of 2000:- Earlier, the Revision Petitioner/husband has filed this petition to subject himself and also the Respondent/wife for DNA test. After full contest and enquiry on merits, the said petition was allowed. The Respondent/wife and the Petitioner/husband were directed to appear on 9.4.2002 and a report was submitted confirming the paternity. 5. I.A.No. 763 of 2002:- The Revision Petitioner/husband has filed this second application to determine the parentage of the second female child born on 18.4.1999. After full contest and enquiry on merits, the said petition was allowed. The Respondent/wife and the Petitioner/husband were directed to appear on 9.4.2002 and a report was submitted confirming the paternity. 5. I.A.No. 763 of 2002:- The Revision Petitioner/husband has filed this second application to determine the parentage of the second female child born on 18.4.1999. According to him, the earlier DNA Report confirming the paternity was obtained by the Respondent/wife influencing the scientific experts through one of her relatives, who is working in the Forensic Science Department. According to the Revision Petitioner/husband, if that report is taken into consideration, his contention in the main petition would be negatived. Hence, the Revision Petitioner/husband has filed this application to take three blood samples of the Respondent/wife and to send them for DNA testing to three different centres. (a) Centre for Cellular & Molecular Biology, Hyderabad. 500 007. (b) Centre for D.N.A. Finger Printing & Diagnostics, Hyderabad 500 076. (c) Central Forensic Science Laboratory, Culcutta 700 014. 6. The application was strongly resisted by the Respondent/wife referring to the earlier application in I.A.No.61 of 2000 wherein the application was allowed and the parties were subjected themselves for DNA test which confirmed the parentage of the female child. The respondent/wife has raised strong objection for subjecting to DNA test for the second time. According to her, the blood samples for DNA test to three different places would lead to complication and confusion and would result in conflict of results. It is alleged that the Respondent/wife cannot be compelled for test in three different places as alleged in the petition. 7. Upon consideration of contention of both parties, the learned Subordinate Judge dismissed the application inter-alia finding that:- (a) The contention of the Revision Petitioner/husband that the Respondent/wife has managed to secure favourable report from T.N.F.S.Department has no basis; (b) The Court cannot compel spouse to part with blood samples for DNA test for the second time; (c) There cannot be indiscriminate allowing of the second application which has been filed for the same purpose of DNA test. 8. Aggrieved over the dismissal of the petition, the Revision Petitioner/husband has preferred this Revision. The learned counsel for the Revision Petitioner has submitted that when the Respondent has stated no objection for DNA test in the earlier instance, the Court ought to have ordered taking of blood samples and subjecting the parties to DNA test. 8. Aggrieved over the dismissal of the petition, the Revision Petitioner/husband has preferred this Revision. The learned counsel for the Revision Petitioner has submitted that when the Respondent has stated no objection for DNA test in the earlier instance, the Court ought to have ordered taking of blood samples and subjecting the parties to DNA test. It is further submitted that when doubts are raised regarding the influence of Respondent/wife and the earlier report being doubtful, the Court ought to have allowed the application for the second DNA examination. Contending that by ordering further DNA test, no prejudice would be caused to the Respondent/wife, the learned counsel for the Revision Petitioner prayed to set aside the impugned order and to direct the Respondent/wife to subject herself for further DNA test. 9. Countering the arguments, the learned counsel for the Respondent/wife submitted that when the first application was filed and the report confirms the paternity of the child which is against the contention of the Revision Petitioner, the second application cannot be allowed. It is further submitted that to direct the Respondent/wife again and again for DNA examination would cause mental agony to the Respondent/wife. It is also submitted that if the blood samples are sent to three different places, three different reports would result in conflict of opinion of experts which would cause serious prejudice to the case of the Respondent/wife. 19. The short point falls for consideration is:- whether the Revision Petitioner is entitled to compel the Respondent/wife for DNA examination for the second time? 10. Admittedly, as per order in I.A.No. 61 of 2000, parties have already subjected themselves to DNA test in Tamil Nadu Forensic Science Laboratory. The earlier DNA report confirmed the paternity. The Revision Petitioner/husband assails the earlier report on the ground that it is not free from doubts. According to the Revision Petitioner, the earlier report has been obtained by the Respondent/wife by influencing the officials of TNFSL through one of her relatives, who is working in Forensic Science Department wherein the test was conducted. On behalf of the Revision Petitioner doubts were expressed that the said person related to the Respondent/wife has played a strong role in getting a favourable report to the Respondent/wife and hence, the earlier report is doubtful one. 11. It is a matter of common experience that Tamil Nadu Forensic Science Laboratory is a Government Organisation. On behalf of the Revision Petitioner doubts were expressed that the said person related to the Respondent/wife has played a strong role in getting a favourable report to the Respondent/wife and hence, the earlier report is doubtful one. 11. It is a matter of common experience that Tamil Nadu Forensic Science Laboratory is a Government Organisation. There could be no inference that the Respondent/wife has influenced the officials, who have conducted the DNA test. The procedure adopted for DNA test and the report thereon is an official act done in the Forensic Science Laboratory. When that official act is proved to have been done, under Section 114 -Ill.(e) of Indian Evidence Act, it will be presumed to have been regularly done. The presumption is as to the regularity of the official act. Once a DNA test has been conducted and the report confirms the paternity of the child, the presumption is that of formalities have been complied with and that the proper test has been conducted. 12. The earlier DNA test was conducted from 10.4.2002 to 26.4.2002 in T.N.F.S.L. Date of sample was on 9.4.2002. Similarly, the blood sample of the mother/Respondent Karpagam and the child Archana was also taken and subjected to DNA test. The elaborate DNA test was conducted and the elaborate report has been furnished. On the basis of DNA test report, the scientific expert has given his opinion that " the cumulative probability of paternity of the alleged father Mr.M. Sakthivel for being the father of the child Archana is 99.9207%. The cumulative chance of Exclusion of any random man from the paternity of the child Archana is 99.99999988%". The opinion is supported by the comprehensive analysis of the results. The well considered analysis and the report there on cannot be doubted by accepting the contention raised by the Revision Petitioner that the result was obtained by influencing the scientific experts in Tamil Nadu Forensic Science Laboratory. In any event, the DNA test report is only a piece of evidence in support of the paternity of the child. If the Revision Petitioner expressed doubts about the correctness of the report, it is open to him to put forth his objection at the time of trial. But the doubt expressed by the Revision Petitioner cannot be the reason for sending the sample again to the other laboratories. 13. If the Revision Petitioner expressed doubts about the correctness of the report, it is open to him to put forth his objection at the time of trial. But the doubt expressed by the Revision Petitioner cannot be the reason for sending the sample again to the other laboratories. 13. Only in November 2002 i.e. six months after filing of the DNA test report, the Revision Petitioner/husband has filed the second application to direct the Respondent/wife to part with blood samples for sending them to three different centres for examination. The Revision Petitioner has waited atleast for six months to raise the contention that the earlier report is doubtful in nature. It is relevant to note that in the supporting affidavit though the Revision Petitioner has alleged that the Respondent has influenced the officials through one of her relatives, the name of the relative of the Respondent has not been mentioned in the affidavit. It is not made clear as to how and through whom, the Respondent has influenced the officials to get the favourable order. It is easy to make such allegations. In the absence of definite material, no weight could be attached to such allegations. 14. In this application, the Revision Petitioner/husband seeks to send the blood samples of the spouse to three different centres for DNA test for the second time to ascertain the parentage of the female child. (a) Centre for Cellular & Molecular Biology, Hyderabad. 500 007. (b) Centre for D.N.A. Finger Printing & Diagnostics, Hyderabad 500 076. (c) Central Forensic Science Laboratory, Culcutta 700 014. 15. As rightly submitted by the Respondent/wife, if the samples are sent to three different places, three different report might lead to confusion. The petitioner cannot seek to send blood samples for DNA test for the second time which would lead to unhealthy practice where the parties repeatedly seeking to send the sample till they get a favourable report. Such request of the Revision Petitioner/husband to send the blood sample of the spouse for DNA test for the second time cannot be acceded to. 16. Expert evidence is of value in case where the Courts have to deal with the matters regarding the paternity. The DNA test report is only a piece of evidence (though of course a strong piece of evidence) in determining the paternity of the child. It supplements the oral evidence. 16. Expert evidence is of value in case where the Courts have to deal with the matters regarding the paternity. The DNA test report is only a piece of evidence (though of course a strong piece of evidence) in determining the paternity of the child. It supplements the oral evidence. The opinion evidence/expert evidence is only to assist the Court in determining the paternity. The DNA test report is to be analysed along with the facts and other evidence to be adduced by the parties. The DNA test report is only a supporting evidence in favour of either party. During the trial, it is for the Revision Petitioner/husband to establish that the earlier DNA test is exposed to reasonable degree of suspicion. But the Revision Petitioner cannot seek for conduct of another DNA examination. 17. The learned Subordinate Judge has rightly referred to the earlier DNA test report and found that the party cannot be compelled to subject to DNA examination for the second time. In support of its finding, the learned Subordinate Judge referred to the decisions reported in (i) 1998, 2, M.L.J. 406 (P.A.ANBU ANANDAN @ P.A.ANANDAN - Vs. - D. SIVAKUMARI) and (ii) 1997 3, L.W. 776 (MINOR SHANMUGAM REP. BY NEXT FRIEND AND MOTHER VALLIAMMAL - Vs. - KARUPPIAH @ KARUPPANNAN). The learned Subordinate Judge has taken note of the facts and circumstances and rightly dismissed the application declining to send the blood sample for DNA examination for the second time. The impugned order does not suffer from any infirmity warranting interference. This revision has no merits and is bound to fail. 18. For the forgoing reason, the order of Subordinate Judge, Maduranthakam made in I.A.No. 763 of 2002 R. BANUMATHI, J.,in H.M.O.P.No. 5 of 1999, dated 16.12.2002 is confirmed and the Revision Petition is dismissed. In view of the relationship of the parties, there is no order as to costs. Consequently, C.M.P. No. 9760 of 2003 is also dismissed.