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2008 DIGILAW 1397 (MAD)

Veeran v. Veeravarmalle & Another

2008-04-25

K.VENKATARAMAN

body2008
Judgment :- This revision is directed against the order of the learned Judge of the Family Court at Puducherry, dated 07.03.2007 made in I.A.No.59 of 2007 in O.S.No.14 of 2006. 2. The first defendant in the above referred suit is the petitioner herein, plaintiff thereon is the first respondent and the second defendant being the second respondent in this revision. 3. The first respondent herein had laid the suit against the petitioner and the second respondent herein before the Family Court at Puducherry for declaration that she is the legitimate child born to her parents, viz., the petitioner and the second respondent herein. In the said suit, the first respondent has taken out an application in I.A.No.59 of 2007 for directing the petitioner herein to cause appearance and admission with the petition specified institute for the purpose of D.N.A. examination and test or any other medical examination and test and to further direct the said institute to cause the said test and to file consequent report to the Court. The said application was allowed by the learned Judge of the Family Court, Puducherry, by his order dated 07.03.2007 and the present revision is directed against the said order. 4. The first respondent in her application referred to above, has set out that her mother viz., the second respondent herein was set exparte and the petitioner / father had totally denied her legal relationship with him as a legitimate daughter born to him. Since it is a total denial of legal relationship, the first respondent had no other option than to go for a D.N.A. Test to prove that the petitioner herein alone is the father. She has expressed her willingness to submit herself physically for any kind of medical and scientific test for the said purpose. 5. The said application was resisted by the petitioner herein by filing a counter affidavit. In the counter affidavit, the petitioner herein has stated that the application is not maintainable and it is liable to be dismissed in limini. He has further denied the relationship between himself and the first respondent herein. It is his further case that he cannot be compelled to be a witness against himself. 6. The Court below, considering the claim and the counter claim, allowed the application preferred by the first respondent herein. As stated already, the said order is under challenge in this revision. 7. It is his further case that he cannot be compelled to be a witness against himself. 6. The Court below, considering the claim and the counter claim, allowed the application preferred by the first respondent herein. As stated already, the said order is under challenge in this revision. 7. The first and foremost submission of the learned counsel appearing for the petitioner is that since the factum of marriage of the second respondent with one Ramu is not controverted and not denied by the first respondent, the question of undergoing D.N.A. Test for the purpose of determining the paternity of the first respondent does not arise. The second submission of the learned counsel appearing for the petitioner is that the Court below illegally exercised its discretion thereby directing the petitioner herein for subjecting himself alone for D.N.A. Test without any sort of such test on the second respondent, who had already married with one Ramu, which is totally untenable and illegal. The third submission of the learned counsel appearing for the petitioner is that the Court below erroneously allowed the claim of the first respondent subjecting himself for D.N.A. Test without similar prayer from the side of the first respondent for herself and for the second respondent herein. The fourth submission of the learned counsel appearing for the petitioner is that no person shall be deprived of his life and personal liberty and no person can be compelled to be a witness as against himself. Thus, compelling a person to undergo D.N.A. Test is an act, which goes against the invasion of a private right of the petitioner. 8. Per contra, learned counsel appearing for the first respondent contended that to prove the paternity, D.N.A. Test is the only scientific test, which is available for the first respondent herein to prove her case. The second submission of the learned counsel appearing for the first respondent is that the Court has power to order a person to undergo medical test which will not be a violation of the right to personal liberty guaranteed under Article 21 of The Constitution of India. The second submission of the learned counsel appearing for the first respondent is that the Court has power to order a person to undergo medical test which will not be a violation of the right to personal liberty guaranteed under Article 21 of The Constitution of India. The third submission is that the first respondent, in her affidavit, had clearly stated that she is ready and willing to submit herself physically for any kind of medical and scientific test and hence the case of the petitioner that he alone is directed to undergo D.N.A. Test is totally incorrect. The fourth submission of the learned counsel appearing for the first respondent is that since the second respondent/ mother had absented herself in the suit and that since she has remained exparte, the first respondent has no other option except to seek D.N.A. Test of the father, the petitioner alone. The fifth submission of the learned counsel appearing for the first respondent is that it is not necessary always that D.N.A. Test shall be conducted on the father and mother, but even if the D.N.A. Test is conducted both on the father, it will prove whether the first respondent was born to him or not. Thus, the sum and substance of the submission made by the learned counsel appearing for the first respondent is that the Court below exercised its discretion rightly, which does not require any interference by this Court. 9. I have considered the submissions of the learned counsel appearing for the petitioner as well as the first respondent. 10. The objection of the petitioner before the Court below, as could be seen from the counter statement filed by him in I.A.No.59 of 2007, is that he is not the father of the first respondent herein and that there is no relationship between the first respondent and the second respondent. The other objection was that no person can be compelled to be a witness as against himself and that no person shall be deprived of his life and personal liberty except according to the procedure established by law. Thus, the sum and substance of the objection was that the petitioner herein cannot be compelled to undergo D.N.A. Test, which goes against the invasion of his private right. Unfortunately, I am unable to agree with the said contention raised by the learned counsel appearing for the petitioner. Thus, the sum and substance of the objection was that the petitioner herein cannot be compelled to undergo D.N.A. Test, which goes against the invasion of his private right. Unfortunately, I am unable to agree with the said contention raised by the learned counsel appearing for the petitioner. By directing the petitioner herein to undergo D.N.A. Test to prove the paternity of the first respondent, cannot said to be affecting his fundamental rights and it is not in violation of his right to personal liberty enunciated under Article 21 of the Constitution of India. The said issue came for consideration before this Court and the same is reported in 2005-1-L.W. 713 – Bommi & another v. Munirathinam. In the said judgment, this Court after considering various judgments of this Court as well as the Apex court, has held that when a paternity of the child is challenged, there is nothing wrong in ordering a D.N.A. Test, which would unfold the truth and it has been further held that such an act is not an interference with the personal liberty of the particular person, who is required to undergo D.N.A. Test. In 2003 (2) C.T.C. 760 – Sharada v. Dharmpal, the Honble Apex Court while considering the constitutional rights available to a person in such cases and also while considering the provision of Section 112 of the Indian Evidence Act, has held as follows:- "A matrimonial Court has the power to order a person to undergo medical test. 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. 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 himself to medical examination, the Court will be entitled to draw an adverse inference against him. The implicit power of a Court to direct medical examination of a party to a matrimonial litigation in a case of this nature cannot be held to be violative of ones right of privacy". The implicit power of a Court to direct medical examination of a party to a matrimonial litigation in a case of this nature cannot be held to be violative of ones right of privacy". Thus, the above judgment of the Honble Apex Court will make it very clear that the order of the Court below directing the petitioner to undergo D.N.A. Test would not be in violation of the right to his personal liberty guaranteed under Article 21 of The Constitution of India and it will not be violative of the petitioners right of privacy. 11. The next contention of the learned counsel appearing for the petitioner is that the petitioner alone is directed to be subjected to D.N.A. Test and that the first respondent has not sought for any D.N.A. Test for herself or for the second respondent. It has to be seen that the first respondent in her affidavit has clearly stated that she is ready and willing to submit herself physically for any kind of medical and scientific test for the above said purpose and hence the contention of the learned counsel appearing for the petitioner that the petitioner alone is directed to undergo D.N.A. Test and the first respondent herein has not sought for any test on herself, is totally unacceptable. As far as the second respondent is concerned, it is the definite case of the first respondent that she is the mother, but however, the second respondent has not chosen to appear before the Court below and she has remained exparte. Hence, the second respondent could not be directed to undergo D.N.A. Test by the Court below. Had the second respondent appeared before the Court below and still if the Court below directed the D.N.A. Test on the petitioner alone and not on the second respondent, one could understand the grievance of the petitioner. Hence, I am unable to countenance the argument put forth on behalf of the petitioner in this regard. 12. The next question that arises for consideration is whether the D.N.A. Test performed on the petitioner alone will prove that the petitioner is the father of the first respondent without any test conducted on the second respondent, who is alleged to be the mother of the first respondent. 13. 12. The next question that arises for consideration is whether the D.N.A. Test performed on the petitioner alone will prove that the petitioner is the father of the first respondent without any test conducted on the second respondent, who is alleged to be the mother of the first respondent. 13. On-Site Medical Testing Inc., Calipornia speaks about the paternity test, wherein it is stated as follows:- "D.N.A. paternity testing uses D.N.A., the biological basis of inheritance, to prove or disprove the relationship between a child and an alleged father. It is based on the fact that we inherit half of our D.N.A. from our father and half from our mother. Cells are collected from the child, the alleged father, and he mother if possible. Using sophisticated laboratory procedures, genetic profiles are created for each individual. By comparing these profiles, it is possible to statistically prove whether the alleged father is or is not the childs biological father." 14. The Eastern Biotech & Life Science Company in UAE which is offering D.N.A.Test in Kuwait, Jordan, Lebanon, Bahrain, Qatar, Oman, Saudi and Syria speaks about the paternity test, wherein it is stated as follows:- "Paternity testing requires a painless sample from both the child and possible father. Even without a sample from the mother, D.N.A. paternity test results are upto 99.9999% accurate-thats one-in-a-million odds your results are incorrect". 15. The above analysis clearly shows that if the mother is not available, from the sample collected from the child and the alleged father, the paternity test can be conducted. Thus, if D.N.A. test is performed without the mothers sample, it requires additional analysis and it will take a few days longer to complete the same. However, the accuracy of the results will not be affected. 16. The above discussions make it very clear that it is not always necessary to conduct D.N.A. test on both the alleged father and mother and the D.N.A. test performed on the father will also show whether a particular child was born to the person on whom such test has been performed. While so, the argument advanced on the side of the petitioner that without conducting D.N.A. test on the second respondent, the alleged mother of the first respondent, there will be no useful purpose, by directing the petitioner alone to subject himself for D.N.A. test, is totally erroneous. While so, the argument advanced on the side of the petitioner that without conducting D.N.A. test on the second respondent, the alleged mother of the first respondent, there will be no useful purpose, by directing the petitioner alone to subject himself for D.N.A. test, is totally erroneous. In the fast technology development in scientific field, it is nothing wrong in directing a person to undergo D.N.A. test, which will enable the Court to arrive at a proper conclusion. Further more, the petitioner, who asserts that he had no relationship with the second respondent and the first respondent was not born to him, to prove his assertion, can very well subject himself for the said test to prove his case beyond reasonable doubt. In fact, the test result will amply prove his case also. 17. Thus, analyzing the entire facts and circumstances of the case, I am of the considered opinion that the Court below had exercised its discretion properly, judicially and in the best interest of both the parties concerned. 18. In the result, the order of the learned Judge of the Family Court, Puducherry, dated 07.03.2007 made in I.A.No.59 of 2007 in O.S.No.14 of 2006 is confirmed and the civil revision petition stands dismissed. No order as to costs. Consequently, connected petition is closed.