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2021 DIGILAW 2053 (MAD)

Minor Deivadharshini v. Vadivel

2021-08-11

V.BHAVANI SUBBAROYAN

body2021
JUDGMENT : (Prayer: Civil Revision Petition is filed under Article 227 of the Constitution of India, to set aside the Order and Decreetal Order in I.A.No.359 of 2017 in O.S.No.12 of 2017 dated 10.06.2020 on the file of Sub-Court, Palacode, Dharmapuri District is illegal.) 1. The present Revision Petition is filed under Article 227 of Constitution of India as against the order passed in I.A.No.359 of 2017 in O.S.No.12 of 2017 dated 10.06.2020. 2. The brief facts of the case is that the petitioners 1 to 3 were represented by their mother and natural guardian, namely, Latha. The said Latha was living with the respondent herein as husband and wife, however, the petitioners’ mother Latha, was married to one Murugesan, who was none other than the maternal uncle of Latha and the marriage was held on 10.02.1993. The said mother, Latha, further claims that there has been no cohabitation between her and her husband, Murugesan. However, she continued to live with her husband and she had a relationship with the respondent / 1st defendant, through the said relationship, the petitioners herein were born. The said Murugesan, husband of Latha, had died on 07.03.2014 after the death of the said Murugesan, Latha seems to have approached the respondent herein claiming that the petitioners’, who are minors were born to him and sought to proclaim their relationship. 3. In contrary, the respondent herein had denied the said allegations. When the suit schedule property belonging to the respondent herein was settled by him in favour of his wife, the 2nd defendant therein, the said Latha and the petitioners herein approached the court below by way of Original Suit as against the respondent herein and others claiming partition of the suit schedule property and declaration of settlement executed by the present respondent in favour of his wife, the 2nd defendant therein as null and void. Pending the suit, I.A.No.359 of 2017 was filed by the said Latha on behalf of the minors to subject the respondent herein for DNA test to prove the paternity of the biological father of the petitioners. However, the respondent denied the said allegation by filing necessary counter. The learned Sub Judge, Pallacode by order dated 10.06.2020 dismissed the application, as against which, the present Revision Petition is filed. 4. However, the respondent denied the said allegation by filing necessary counter. The learned Sub Judge, Pallacode by order dated 10.06.2020 dismissed the application, as against which, the present Revision Petition is filed. 4. The learned counsel appearing for the petitioners would submit that the paternity of the children can only be established by way of subjecting the respondent for DNA Test and in the absence of such expert opinion, the paternity of the children, viz., the petitioners herein, cannot be established. Further, no prejudice would be caused to the respondent if he is subjected to DNA test and in contrary, the paternity of the petitioners herein will never be known and as such, since the mother herself has claimed that the children, namely, the petitioners herein were born through the relationship between her and the respondent herein, the question of denying of DNA test will not arise. 5. The learned counsel for the petitioners to substantiate the case of the petitioners has relied on the following Judgments: (a) 1994 SCC (1) 460 [S.P.S.Balsubramanyam Vs. Suruttayan] (b) Crl.A.Nos.2028-2029 of 2010 [D.Velusamy Vs. D.Patchaiammal] (c) Fao(OS) No.547 of 2011 [Rohit Shekhar Vs. Narayan Dutt Tiwari & Another] (d) (2012) 12 SCC 554 [Narayan Dutt Tiwari Vs. Rohit Shekhar and Another 6. Resisting the contentions of the petitioners, the learned counsel appearing for the respondent would submit that the onus of relationship, as alleged by the mother of the petitioners should only be established by the mother, as she has stated that being a marriage between her and the respondent herein, she should establish the same by way of material evidence. He would further submit that when that being a valid marriage between late Murugesan and the said Latha on 10.2.1993 and the minor petitioners being born thereafter, it should be presumed that the children were born only through their wed lock between their mother, viz., Latha and the said deceased father, viz., Murugsan. The mother under the guise of representing their minor children is trying to tarnish the image of the respondent for her personal gains and the learned Sub Judge, Palacode has given appropriate reasons for dismissing the application and prayed for sustaining the order. 7. The learned counsel for the respondent has relied on the following Judgments: (a) (2017) 4 MLJ 463 [Selvi Vijayalakshmi Vs. A.Sankaran and Another] (b) (2017) 8 MLJ 150 [Rajaselvi and Another Vs. 7. The learned counsel for the respondent has relied on the following Judgments: (a) (2017) 4 MLJ 463 [Selvi Vijayalakshmi Vs. A.Sankaran and Another] (b) (2017) 8 MLJ 150 [Rajaselvi and Another Vs. Meenatchi and Others] 8. Heard the learned counsel appearing on either side and perused the documents placed on record. 9. Admittedly, the mother, viz., Latha representing the petitioners, who claim to have lived un-chastic life, has approached the court proclaiming that she was having an extra marital affair with the respondent when her husband was alive. The said Latha, had approached the court to proclaim the respondent, as father of the minor children and even needs partition of the property of the respondent, which has been already settled in favour of his wife. On a very vague argument, not supported by any proof, the petitioners’ mother has approached the court below seeking for DNA test. 10. On perusal of the Exhibits which have been filed before the Sub Court, Palacode, especially, Exs.1 to 4, which is the birth certificate issued for the petitioners’, mentioning Murugesan, as father and the legalheirship certificate obtained after the death of the Murugesan also refers the petitioners were born to the said Murugesan. It is also not known how when the said Murugesan had not cohabitated owing to his health condition, the mother of the petitioners herein have accepted to lend his name as father to all the three children, as claimed by the petitioners’ mother. The said fact is contrary to Section 112 of Indian Evidence Act and the same is extracted hereunder for useful reference:- “112 - Birth during marriage, conclusive proof of legitimacy- The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred ad eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.” 11. On a bare reading of the said provision it is clear that the petitioners’ mother is estopped from her own statement of accepting late Murugesan as father of the petitioners and later after the death of the said Murugesan cannot claim someone else as biological father of the minor petitioners herein. On a bare reading of the said provision it is clear that the petitioners’ mother is estopped from her own statement of accepting late Murugesan as father of the petitioners and later after the death of the said Murugesan cannot claim someone else as biological father of the minor petitioners herein. The above said provision also clearly establishes that any person born during the continuance of a valid marriage shall be conclusive proof that he is the legitimate child of that man validly married by the mother. 12. It is to be noted that the petitioners’ mother, viz., Latha who was in valid marriage, which was held between her and the said late Murugesan, cannot at a later point of time claim that the children were not born through the said Murugesan. It is clearly seen that the said Murugesan could not have accepted the paternity of the petitioners herein, if the children were not born to him. Had it been the situation, the petitioners’ mother could have proclaimed or filed the present suit during the life time of said Murugesan and if so, this Court or the Subordinate Court would have taken a different view. But the petitioners’ mother having not approached or even having not disclosed the issue of paternity of the petitioners during the life time of late Murugesan and making him to believe that the children were born to late Murugesan, when he was alive and creating public records in favour of late Murugesan as father of the children, it is not proper for the petitioners’ mother, after the death of the said Murugesan, to dispute or disagree with the paternity of the petitioners. Section 35 of Evidence Act, 1872 is also relevant in this regard. In this context, it is relevant to point out Section 35 of Evidence Act, which runs as follows:- “Relevancy of entry in public record or Electronic record made in performance of duty: - An entry in any public or other official book, register or record or electronic record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register, or record or electronic record is kept, is itself a relevant fact.” 13. It is pertinent to point out that the Hon’ble Supreme Court in case reported in 1965 SC 282 [Brij Mohan Singh Vs. Priya Brat Narain Sinha and Others] observes that in actual life it often happens that purposely false age of the boy at the time of admission to school so that later in his life he would have an advantage when seeking public service for which a minimum age for eligibility is often prescribed. The entry of date of birth made in school admission register, in terms of Section 35 of Evidence Act should be considered from the perspective guided by the observations of the Hon’ble Supreme Court in various cases dealing with Section 35 of Indian Evidence Act, hence, this Court has no hesitation to hold Section 35 of Indian Evidence Act, 1872 against the petitioners’ mother when Exs. 1 and 4 all public records have claimed that the petitioners herein were born to late Murugesan, which records is not denied by the petitioners’ mother. 14. That apart, in the Judgment relied on by the learned counsel for the petitioners, viz., Crl.A.Nos.2028-2029 of 2010 [D.Velusamy Vs. D.Patchaiammal] it is observed that ‘they must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time’ no such averment is made in the affidavit that the mother, viz., Latha made Suyamariyadhai marriage. Further, in the Judgment reported in (2012) 12 SCC 554 [Narayan Dutt Tiwari vs.Rohit Shekhar and Another at Paragraph No.38, it is observed as follows:- “Even the Constitution of India, while laying down the fundamental duties by Articles 51-A(h) and (j) declares it to be the duty of every citizen of India to develop a scientific temper and the spirit of inquiry and reform and to strive towards excellence, to reach higher levels of achievement. What we wonder is that when modern tools of adjudication are at hand, must the courts refuse to step out of their dogmas and insist upon the long route to be followed at the cost of misery to the litigants. The answer is obviously has to be no. What we wonder is that when modern tools of adjudication are at hand, must the courts refuse to step out of their dogmas and insist upon the long route to be followed at the cost of misery to the litigants. The answer is obviously has to be no. The courts are for doing justice, by adjudicating rival claims and unearthing the truth and not for following the age-old practices and procedures when new, better methods are available.” The above mentioned case is factually different and the petitioners’ mother has not proved the marriage at any point of time with the respondent. When the petitioners have not raised any paternal issue when the said Murugesan was alive, it is clearly proved that the petitioners are raising the same only for the share in the respondent’s property. 15. Moreover, in the Judgment referred by the learned counsel for the respondent reported in (2017) 4 MLJ 463 , this Court by reiterating Section 112 of Indian Evidence Act, which is reproduced above and by referring to the Judgment of Hon’ble Supreme Court in Bhapani Prasad Jena Vs. Convenor Secretary, Orissa State Commission for Women and Another (Supra) had held that: “the Courts in India cannot order blood test as a matter of course and such prayers cannot be granted to have roving inquiry; there must be strong prima facie case and the court must carefully examine as to what would be the consequence of ordering the blood test. In Sharda while concluding that a matrimonial court has power to order a person to undergo a medical test, it was reiterated that the court should exercise such a power if the applicant has a strong prima facie case and there is sufficient material before the Court. Obviously, therefore, any order for DNA test can be given by the court only if a strong prima facie case is made out for such a course” In the present case on hand, the petitioners have not made out any prima facie case for directing the respondent to undergo blood test. Obviously, therefore, any order for DNA test can be given by the court only if a strong prima facie case is made out for such a course” In the present case on hand, the petitioners have not made out any prima facie case for directing the respondent to undergo blood test. Apart from the above, as per decision reported in (2017) 8 MLJ 150 , the legitimacy of child should be proved by establishing that there has been a valid marriage between the spouses and the children born out of the said wedlock are entitled to claim share in the suit properties and in this case, it is found that the petitioners, as such, are not entitled to claim any share in the suit properties, when there is no valid marriage at all much less between the parties. However, it is to be decided otherwise for a valid marriage. Under these circumstances, this Court is of the opinion that the order made in I.A.No.359 of 2017 in O.S.No.12 of 2017 on the file of the learned Subordinate Judge, Palakode need not be interfered with and the petitioners have not made out any valid grounds to interfere with the order passed by the Subordinate Court. Accordingly, the present Revision petition fails and the same is dismissed.