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2011 DIGILAW 4129 (MAD)

T. Nagaraj v. Sumathi

2011-09-27

K.VENKATARAMAN

body2011
Judgment :- 1. The petitioner has come up with the present civil revision petition challenging the order of the learned Subordinate Judge, Perambalur dated 16.8.2010 made in I.A.No.17 of 2010 in O.S.No.114 of 2008. 2. The petitioner herein is the husband of the respondent. He has filed the above referred OP against the respondent for dissolution of the marriage which has taken place between them on 12.7.2001. The case of the petitioner is that the respondent herself has admitted that one Muniappan, the second respondent in the said OP had intimacy with her and through him, she gave birth to a female child. The said statement made by the petitioner in the OP was denied by the respondent. 3. In the OP, the petitioner herein has taken out an application in I.A.No.17 of 2010 seeking DNA test to prove that minor Iswarya was not born to him. He also prays that the DNA test has to be conducted on himself and on the minor. The said application was dismissed by the Court below and the present civil revision petition is directed against the said order. 4. It is the case of the petitioner that the OP itself was filed by him only on the ground that the second child was not born to him and it was born to one Muniappan, the second respondent in the said OP. It is also stated by the petitioner that when the respondent was cross examined, she has accepted for such test. Further, it is contended on behalf of the petitioner that the DNA test will conclusively prove whether the second child was born to him or not. 5. Section 112 of the Indian Evidence Act clearly spells out that birth of a child during the marriage would conclusively prove the legitimacy of the child. However, presumption can be displaced only by strong preponderance of evidence and not by a mere balance of probabilities. In the case on hand, the case of the petitioner is solely on the basis that the second child was not born to him. In such circumstances, directing DNA test on the petitioner as well as the child will definitely establish the case of the petitioner or the falsity of his claim. The said aspect has gone out of sight in the mind of the learned trial Judge. 6. In such circumstances, directing DNA test on the petitioner as well as the child will definitely establish the case of the petitioner or the falsity of his claim. The said aspect has gone out of sight in the mind of the learned trial Judge. 6. In the judgment reported in 2009 (1) CTC 141 – Veeran vs. Veeravarmalle and another, I have held that the order of the Family Court in directing the parties to undergo medical test will not amount to violation of a right guaranteed under Constitution of India. It will also not affect the privacy or personal liberty of a person. 7. In the judgment reported in 2009 (3) CTC 672 – M.Karthika vs. R.Manohar, this Court has held that presumption under Section 112 of the Indian Evidence Act could be rebutted by strong evidence and the same could be obtained from the outcome of the DNA test. 8. In the decision reported in 2004 (1) CTC 758 – Solaimuthu vs. State, rep. by Inspector of Police, Kaikalathor, Perambalur, Perambalur District and another, this Court has held that an order directing the petitioner, who developed illegal intimacy with the second respondent thereon and who has denied that the child was not born through him, could be directed to give blood samples for DNA test and it does not offend Article 20 (3) of the Constitution of India. 9. In 2004 (5) CTC 182 – Bommi and another vs. Munirathinam, this Court has held that giving blood samples by minor would not amount to torture and rights of minor would in no way be affected by giving such samples. It has been further held in the said decision that advancement in science and technology must be used in stead of merely relying upon presumption under Section 112 of the Indian Evidence Act, as such technological advancement was not available at the time of enacting the Evidence Act. 10. Even in the judgment that was cited by the learned trial Judge viz., AIR 1993 SUPREME COURT (SC) 2295 – Gautham Kund vs. State of West Bengal, the Hon'ble Apex Court does not say that such DNA test cannot be performed. The Hon'ble Apex Court has only stated that there shall be a strong prima facie case for such request. 11. The Hon'ble Apex Court has only stated that there shall be a strong prima facie case for such request. 11. In the case on hand, as stated already, the petitioner even in the OP, has made a claim that the second child was not born to him. In fact, that was the reason for filing the OP. In such circumstances, directing the petitioner as well as the child to undergo DNA test would only be in the interest of the petitioner and the respondent. It will also be in the interest of the minor. 12. Considering the over all circumstances and considering the judgments referred to above, I am of the considered view that the order of the Court below is liable to be aside. 13. In fine, the order of the learned Subordinate Judge, Perambalur dated 16.8.2010 made in I.A.No.17 of 2010 in O.S.No.114 of 2008 is set aside and the civil revision petition stands allowed. However, there is no order as to costs. Consequently, connected miscellaneous petition is closed.