Madras High Court
Minor Shanmugam Represented By Next ... vs Karuppiah Alias Karuppannan on 27 October, 1997
Equivalent citations: (1998)1MLJ454
Author: Ar. Lakshmanan
Bench: Ar. Lakshmanan
ORDER AR. Lakshmanan, J.
1. Heard Mr. S. Parthasarathy, learned Counsel for the petitioner. Though the respondent has been served even on 29.8.1997, there is no appearance on his behalf. He was called absent. Arguments of the learned Counsel for the petitioner were heard.
2. The above revision has been filed against the order in I.A. No. 61 of 1997 in O.S. No. 346 of 1991 on the file of the District Munsif, Kulithalai and dated 9.6.1997. The petitioner herein has filed the suit claiming partition and separate possession of his 1/15 share in the suit properties which was comprised in several survey numbers and also for accounting. The respondent here in who is the father of the petitioner was impleaded as the 2nd defendant, the petitioner's grand father was impleaded as the 1st defendant and he died pending suit. The other legal heirs were impleaded as defendants in the suit. In the said suit the respondent herein/father of the petitioner disputed the fact that he is the father of the petitioner herein.
3. The suit was taken up for trial and after examination of the witnesses, the respondent herein filed an application under Section 151, C.P.C. read with Section 45 of the Evidence Act seeking directions from the court for medical test to be conducted by approved medical expert to find out whether the respondent is the father of the petitioner by taking samples of the blood from the petitioner respondent and the mother of the petitioner herein. This application was resisted by the petitioner herein stating that the burden is on the respondent and the petitioner is not entitled to subject to himself for any medical test and that the alleged medical test itself is not a conclusive evidence, and in law is not bound to subject himself for any medical test or his mother. It is also stated that the petitioner or his mother is not willing for any medical test, and that they cannot be compelled for medical test in law.
4. The learned District Munsif by a laconic order allowed the application. I have perused the said order. A bare perusal of the order of the learned district Munsif would clearly reveal that he has failed to apply his mind to the facts on record and also the decisions of this Court and the Apex Court. Aggrieved by the said order, the above revision has been filed.
5. In this context Section 112 of the Indian Evidence Act can be looked into. The section reads thus:
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 and 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.
This rule of law based on the dictates of justice has always made the courts inclined towards up holding the legimacy of a child unless the facts are so Compulsive and clinching as to necessarily warrant a finding that the child could not at all have been begotten to the gather and as such a legitimation of the child would result in rank injustice to the father. Court have always desisted from lightly or hastily rendering a verdict and that too, on the basis of slender materi-als, which will have the effect of branding a child as a bastard and its mother an unchaste woman.
6. As per Section 112, the person alleging illegitimacy must conclusively establish that he had no opportunity to have intercourse with the wife at the time when according to the natural course of nature, the child must have been begotten. It requires positive proof of negative fact. The presumption contemplated by Section 112 is a conclusive presumption of law. If it is proved that there was a valid marriage between a man and woman and during the valid marriage, the child was born, the conclusive presumption of legitimacy arises. The only thing that can displace it is the i.e., proof of the particular fact mentioned in it non-access between the parties to the marriage at a time when the child could have been begotten. In this case, the court below has totally lost sight of the law laid down under Section 112 of the Evidence Act, it has further failed to see that no person could be compelled to give a sample of blood grouping testing against his wish and no adverse inference could be drawn against him for his refusal. It is a rebuttable presumption of law that a child bora during the lawful wedlock is legitimate and that access occurred between the parents. This presumption can only be displaced by a strong preponderance of evidence and not by a mere balance of probabilities, arrived at by some unreliable blood tests. The learned District Munsif without realising the seriousness of the prayer has allowed the application without for a minute examining as to what would be the consequence of ordering the blood test, whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman. As rightly pointed out by the learned Counsel for the petitioner, there is no special statute in India governing the paternity test. Neither the Criminal Procedure Code nor the Evidence Act empowers the court to direct such a test to be made. There are no other methods in the Evidence Act to disprove the paternity and moreover it is settled law that medical test cannot be conclusive of paternity.
7. In the decision reported in Goutam Kundu v. State of West Bengal , the Supreme Court has laid down that the presumption could itself be a rebuttal presumption and that a child born duing the lawful wedlock is legitimate and that access occurred between the parents. This presumption can only be displaced by a strong preponderance of evidence, and not by a mere balance of probabilities. The Supreme court has also referred to in its order a judgment of our High Court in Polavarapu Venkateswarly, Minor by guardian and Mother Manumamma v. Popavappu Subbayya , wherein this Court held that if the parties are unwilling to offer their blood for a test of this kind this Court cannot force them to do so. In the concluding para of its judgment the Supreme Court has observed as follows:
The effect of this section is this: there is a presumption and a very strong one though a rebuttable one. conclusive proof means as laid down under Section 4 of of the Evidence Act. From the above discussion it emerges:
(1) that courts in India cannot order blood test as a matter of course;
(2) Wherever applications are made for such prayers in order to have roving inquiry, the prayer for blood test cannot be entertained.
(3) there must be a strong prima facie case in that the husband must establish non-access in order to dispel the presumption arising under Section 112 of the Evidence Act.
(4) The court must carefully examine as to what would be the consequence of ordering the blood test; whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman.
(5) No one can be compelled to give sample of blood for analysis.
8. In this case, no prima facie case has been made out by the respondent. Therefore, I am of the view that the order of the lower court compelling the petitioner herein to give sample of his blood for analysis, is absolutely illegal and not permissible in law and the same is without jurisdiction. Therefore, the C.R.P. is allowed and the order impugned in this revision and passed by the court below is here by set aside. No costs. Consequently, C.M.P. No. 9251 of 1997 is closed.