Karnataka High Court
Subhasgouda S/O Karigouda Patil vs Channabasanagouda on 1 April, 2022
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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WP No. 103582 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD
BENCH
DATED THIS THE 01ST DAY OF APRIL, 2022
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 103582 OF 2016 (GM-CPC)
BETWEEN:
SUBHASGOUDA S/O KARIGOUDA PATIL
AGE: 47 YEARS, OCC: TAXI DRIVER,
R/O: KAGAWAD, TQ: ATHANI, DIST: BELAGAVI.
...PETITIONER
(BY SRI. SOURABH SONDUR, ADVOCATE
FOR SRI K L PATIL, ADVOCATE)
AND:
1. CHANNABASANAGOUDA S/O. SUBHASGOUDA PATIL,
AGE: 12 YEARS, SINCE MINOR REP. BY HIS NATURAL
GURDIAN MOTHER RESPONDENT NO.2, SMT. ANNAPURNA
W/O SUBHASGOUDA PATIL, R/O. HIREKUMBI,
SAVADATTI, DIST. BELAGAVI.
2. SMT. ANNAPURNA W/O SUBHASGOUDA PATIL
AGE: 43 YEARS, OCC: HOUSEHOLD WORK,
R/O: HIREKUMBI, SAVADATTI DIST: BELAGAVI.
...RESPONDENTS
(BY SRI. SHRIHARSH A NEELOPANT, ADVOCATE)
THIS WP IS FILED PRAYING TO QUASH ORDER
DATED:10.12.2015, PASSED ON IA FILED UNDER ORDER 26 RULE
10A R/W. SEC.151 OF CPC., VIDE ANNEXURE-G GRANT INTERIM
ORDER, TO STAY ALL FURTHER PROCEEDINGS IN OS.NO.177/2012
ON THE FILE OF I ADDITIONAL SENIOR CIVIL JUDGE AND CJM,
DHARWAD, ETC,
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WP No. 103582 of 2016
THIS PETITION COMING ON FOR PRELIMINARY HEARING-B
GROUP THROUGH PHYSICAL HEARING/VIDEO CONFERENCING
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. The petitioner is before this Court seeking for the following reliefs:
(a) Issue a writ of certiorari or order or direction to quash the order dated 10.12.2015 passed on I.A filed under Order 26 Rule 10A read with Section 151 of CPC, vide Annexure-G and
(b) Issue such other writ or order direction as deemed fit under the circumstances of the case, in the interest of justice and equity.
2. The suit in O.S.No.177/2012 had been filed by the respondents herein seeking for partition of the alleged joint family properties on the ground that, respondent No.1 is the son of the petitioner.
3. In the said suit, an application under Order 26 Rule 10A of CPC was filed by the petitioner seeking for conduct of a DNA test or a paternity test in respect of respondent No.1. The said application came to be objected to by the respondents and consequently the trial Court dismissed the said application on the -3- WP No. 103582 of 2016 ground that the petitioner had failed to establish a prima-facie case of non-access in order to dispel the presumption under Section 112 of Indian Evidence Act and since the petitioner had not shown the non- access to plaintiff No.2 mother so as to give birth to plaintiff No.1 for which the DNA test was not permissible. It is the said order which is under challenge.
4. The learned counsel for the petitioner would submit that once earlier the respondents themselves had filed an application for paternity test on 1st August 2012 which came to be numbered as I.A.No.23 which came to be allowed on account of the memo filed by the petitioner that he has no objection for the said DNA test. However, the respondents did not proceed with the said DNA test, and it is for this reason that the subsequent application under Order 26 Rule 10A came to be filed by the petitioners. He therefore submits that, the respondents having earlier -4- WP No. 103582 of 2016 consented to a DNA test/paternity test cannot now resile from the said test and object to the paternity test. He further submits that, what is in essence required to be proved is the paternity and the trial Court by coming to a conclusion that the petitioner has not been able to establish the non-access has dealt with matters which are not required to be considered while dealing with an application under Order 26 Rule 10 A of CPC for conduct of paternity test. The aspect of access or non-access is not material for deciding an application under Order 26 Rule 10A. The trial Court has not even adverted to the earlier application filed by the respondents for paternity test and therefore, the said order requires to be set aside and paternity test ordered.
5. Sri. Shriharsh A. Neelopant, learned counsel for the respondent would however contend that, ordering of a DNA/Paternity affects the personal liberty of the person and without the consent of the person the -5- WP No. 103582 of 2016 DNA test cannot be ordered. In this regard, he relies upon Judgment of this Court in the case of Hanumappa Vs. Yallakka and others, reported in 2014 0 Supreme (Kar) 506, more particularly paragraph No.21 thereof, which is reproduced hereunder for easy reference:
"6. In the light of the above decisions of the apex court, it may be said that the following legal position emerges:
(a) That parties to a civil suit cannot be subjected to DNA Analysis as a matter of course;
(b) Whenever applications are made with a prayer for such a test or analysis, by way of a roving enquiry the same should not be entertained; It is for the parties to place evidence in support of their respective claims and it is only in deserving cases that such a measure can be resorted to;
(c) In cases where the father denies paternity. he must establish a strong prima facie case of "non access" in order to dispel the presumption arising under Section 112 of the Evidence Act 1872. The burden of proof in that regard should be higher than the standard of preponderance of probabilitiesitneednot however, be proof beyond reasonable doubt;
(d) The Court must examine the possible consequence of such a test, especially in cases involving disputed paternity, having the effect -6- WP No. 103582 of 2016 of branding a child as a bastard and the mother as an unchaste woman;
(e) A party to a civil case cannot be compelled to subject himself or herself to a test or analysis.
(f) An order by a court directing a party to submit to a test would not however, be in violation of the right to personal liberty under Article 21 of the Constitution of India;
(g) If on consideration of all aspects, if a court has passed an order against a party to submit himself to medical examination and such party refuses to so submit himself - the court may draw an adverse inference against him.
In the instant case on hand, it is clear that the plaintiffs had not produced any satisfactory material to establish the relationship between the petitioner and themselves, as found by the trial court. Therefore, the appellate court having routinely allowed the application of the plaintiff's on sympathetic grounds, as it were, is not welcome, in the light of the consistent view adopted by the Supreme Court.
Accordingly, the writ petition is allowed and the impugned order is quashed."
6. He relies upon the decision of the Apex Court in the case of Ashok Kumar Vs. Raj Gupta and others, reported in 2022 SAR (Civ) 109, more particularly -7- WP No. 103582 of 2016 paragraph Nos.13, 14 and 15 thereof, which are reproduced hereunder for easy reference:
"13. DNA is unique to an individual (barring twins) and can be used to identify a person's identity, trace familial linkages or even reveal sensitive health information. Whether a person can be compelled to provide a sample for DNA in such matters can also be answered considering the test of proportionality laid down in the unanimous decision of this Court in K.S Puttaswamy v. Union of India', wherein the right to privacy has been declared a constitutionally protected right in India. The Court should therefore examine the proportionality of the legitimate aims being pursued, i.e whether the same are not arbitrary or discriminatory, whether they may have an adverse impact on the person and that they justify the encroachment upon the privacy and personal autonomy of the person, being subjected to the DNA Test. It cannot be overlooked that in the present case, the application to subject the Plaintiff to a DNA Test is in a declaratory suit and the plaintiff has already adduced evidence and is not interested to produce additional evidence (DNA), to prove his case. It is now the turn of the defendants to adduce their evidence. At this stage, they are asking for subjecting the plaintiff to a DNA test. Questioning the timing of the application the trial Court dismissed the defendants application and we feel that it was the correct order.
14. In the yet to be decided suit, the plaintiff has led evidence through sworn affidavits of the Respondents, his School Leaving Certificates and his Domicile Certificate. Significantly, the respondent No.1, who is one of the 3 siblings (defendants) had declared in her affidavit that the Plaintiff was raised as a son by her parents. Therefore, the nature of further evidence to be adduced by the plaintiff (by providing DNA sample), need not be ordered by the -8- WP No. 103582 of 2016 Court at the instance of the other side. In such kind of litigation where the interest will have to be balanced and the test of eminent need is not satisfied our considered opinion is that the protection of the right to privacy of the Plaintiff should get precedence.
15. Having answered these questions, additional issue to be resolved is whether refusal to undergo DNA Testing amounts to 'other evidence' or in other words, can an adverse inference be drawn in such situation. In Sharda vs. Dharmpal a three judges bench in the opinion written by Justice S.B. Sinha rightly observed in paragraph 79 that "if despite an order passed by the court, a person refuses to submit himself to such medical examination, a strong case for drawing an adverse inference" can be made out against the person within the ambit of Section 114 of the Evidence Act. The plaintiff here has adduced his documentary evidence and is disinclined to produce further evidence. He is conscious of the adverse consequences of his refusal but is standing firm in refusing to undergo the DNA Test. His suit eventually will be decided on the nature and quality of the evidence adduced. The issue of drawing adverse inference may also arise based on the refusal. The Court is to weigh both side's evidence with all attendant circumstances and then reach a verdict in the Suit and this is not the kind of case where a DNA test of the plaintiff is without exception."
7. On the basis of the above, he submits that, it is for the plaintiff that is the respondents herein to adduce necessary documentary evidence and the refusal of the respondents to subject to paternity test would at -9- WP No. 103582 of 2016 the most result in drawing of an adverse inference, but the respondents cannot be forced to undergo a DNA test. On this ground he submits that the order of the trial court is proper and does not require any interference.
8. Heard Sri. Sourabh Sondur, learned counsel for the petitioner and Sri. Shriharsh A. Neelopant, learned counsel for the respondent Nos.1 and 2. Perused the papers.
9. The present case is a peculiar one inasmuch as the respondents themselves had earlier filed an application for paternity test and the said application came to be allowed. The petitioner submitted no objection for the application to be allowed. It is on account of the respondents not taking any steps in furtherance thereof that the petitioner was constrained to file an application for paternity test.
10. The cases which have been relied upon by the learned counsel for the respondents are one's where
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WP No. 103582 of 2016 the plaintiffs in those suits did not consent for paternity test.
11. In the present case, the respondents/plaintiffs having earlier themselves filed an application for paternity test, it cannot be said that they did not consent. In fact, the objections that have been filed to the said application is that, the petitioner has admitted a relationship with respondent No.2, therefore, the question of subjecting respondent No.1 to a DNA test would not arise. The other objection which has been raised is that the application was filed only to drag the proceedings at the behest of third party to show the reputation of respondent No.2. In the said objection at no place has the respondent No.2 indicated that there is no consent for a paternity test and or that there is any objection to such a paternity test. The only objections are as stated above.
12. Even a perusal of the order passed by the trial Court what is contended by the respondents is that the
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WP No. 103582 of 2016 evidence on record is sufficient to decide the matter and therefore, there is no necessary to subject the respondent to a paternity test. The ground on which the trial Court has rejected the application is that, the petitioner is unable to establish a strong prima- facie case of non-access in order to dispel the presumption under Section 112 of the Indian Evidence Act. In my considered opinion, at the stage of deciding such an application, the trial Court could not have gone in to the evidence already placed on record or on the basis of the affidavit decide and come to a conclusion as to the establishment of a strong prima-facie case of non-access or not. Merely because someone has access would not prove paternity. Paternity is required to be conclusively established and cannot be so established on the basis of conjunctures or presumptions. I am of the further considered opinion that, merely because there is an access or even if there is a admission as regards a
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WP No. 103582 of 2016 sexual relationship would not establish paternity, unless the paternity is properly established. In the present case, though before the trial Court no objection had been raised as regards consent for objection to the DNA/Paternity test, however in the present writ petition an objection on that ground has been raised. As held by the Apex Court in Ashok Kumar's case, if a person were not to consent, then such person cannot be forcibly directed to undergo a paternity test and as such, though not for the reasons as stated by the trial Court, but for the reason that the petitioner has now chosen to object to the paternity test, I find no reason to interfere with the order of the trial Court.
13. The finding of the trial Court in paragraph No.13 is set aside.
14. As submitted by the learned counsel or the respondents the withdrawal of the earlier consent and the objection raised now to the paternity test
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WP No. 103582 of 2016 could lead to adverse inference which the trial Court is free to draw in the circumstance of the case after the trial is completed.
15. With the above observation, the petition is partly allowed.
Sd/-
JUDGE SVH