Karnataka High Court
Basavaraj M D vs Chetana on 15 September, 2022
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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WP No. 16415 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
WRIT PETITION NO. 16415 OF 2021 (GM-RES)
BETWEEN:
BASAVARAJ M D,
S/O DYAMAPPA
AGED 36 YEARS
OCC: AGRICULTURE
R/O MUTAGUPPE VILLAGE,
SORABA TALUK,
SHIVAMOGGA DISTRICT - 577 434.
...PETITIONER
(BY SRI DEEPAK S SHETTY., ADVOCATE)
AND:
CHETANA,
W/O BASAVARAJ,
AGE 30 YEARS,
R/O ANDAVALLI VILLAGE,
HECCHE POST, SORABA TALUK,
Digitally signed by SHIVAMOGGA DISTRICT - 577 429.
PADMAVATHI B K
Location: HIGH
COURT OF ...RESPONDENT
KARNATAKA
(BY SRI. B.C. PARAMESHWARAIAH, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA R/W SECTION 482
OF CR.P.C., PRAYING TO QUASH THE ORDER DATED
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WP No. 16415 of 2021
15.07.2021 PASSED ON I.A.NO.3 IN CRL.MISC.NO.28/2016,
PASSED BY THE CIVIL JUDGE AND JMFC AT SORABA, THE
COPY OF WHICH HAS BEEN PRODUCED HEREWITH AND
MARKED AS ANNEXURE-A.
THIS PETITION COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner, the husband of the respondent, calls in question an order dated 15.07.2021, passed on I.A.No.3 filed in Crl.Misc.28/2016, by the Civil Judge and JMFC, Soraba, whereby, the Court rejects an application filed by the petitioner for conduct of DNA test doubting the legitimacy of the child.
2. Heard Sri Deepak S.Shetty, learned counsel for the petitioner and Sri B.C.Parameshwaraiah, learned counsel for the respondent.
3. Facts germane for consideration of the present lis are as follows:
The petitioner and the respondent get married on 06.06.2011. From the wedlock, a child is born on -3- WP No. 16415 of 2021 17.02.2012. It transpires that on 26.10.2015, the wife was caught having an alleged illicit relationship with one Sunil. Based upon that, the petitioner husband seeks to register a complaint against the said Sunil. It is the averment of the petitioner that after receiving an apology letter, the complaint comes to be closed. Based upon this incident, the petitioner causes a notice upon the respondent seeking divorce on the ground of adultery.
The respondent - wife as a counter to the allegations made in the petition seeking divorce and registers a crime in crime No.2/2016 against the petitioner and his family members for offences punishable under Section 498A and 506 of the IPC.
4. Not stopping at that, the respondent wife files an application before the concerned Court invoking the provisions of the Protection Of Women From Domestic Violence Act, 2005 (for short 'the Act'). In the said application, the respondent wife seeks maintenance from -4- WP No. 16415 of 2021 the hands of the petitioner to herself and their son. The petitioner files objections contending that the wife was indulged in illicit relationship and therefore, the child is not his and a DNA test has to be conducted. It transpires that the wife during the cross-examination, has given her consent for such examination. On 26.08.2017, an application seeking reference of the child along with the petitioner for DNA test is filed by the husband. The respondent - wife files objections to the application. The learned Magistrate rejects the interlocutory application seeking analysis or a DNA test upon the petitioner - husband and his child. It is this rejection that drives the petitioner to this Court in the subject petition.
5. Learned counsel for the petitioner would vehemently contend that the child was born at 8 months after the marriage, which is highly impossible and this is happened only because the respondent had illicit relationship earlier. Though the issue is raised after three -5- WP No. 16415 of 2021 years, since she was caught having such relationship it is presumed that the child is not his and therefore, a DNA test was imperative. Learned counsel for the petitioner has placed reliance upon the judgment of the Apex Court in the case of PRIYANKA JANARDHAN PATIL VS. JANARDHAN RAGHUNATH PATIL in Special Leave to Appeal No.5554/2020, dated 04.04.2022.
6. On the other hand, learned counsel for the respondent would refute the submissions to contend that the offence so alleged is adultery and that cannot be treated as crime in terms of the judgment of the Apex Court in the case of JOSEPH SHINE VS. UNION OF INDIA reported in (2019) 3 SCC 39 and can best be a ground for dissolution of marriage, which would mean a civil wrong and to presume that the child is not his, is too far fetched thought as it is made after three years of marriage, only to get over any order of maintenance that is likely to be passed against the petitioner. -6- WP No. 16415 of 2021
7. I have given my anxious consideration to the submissions made by the learned counsel for both the parties and perused the material on record.
8. The afore-narrated facts are not in dispute. In the case at hand, certain dates assume significance. The marriage between the petitioner and the respondent is on 06.06.2011 and on 17.02.2012, from the wedlock, a child is born after 8 months and 10 days. All was well till the time when the petitioner allegedly finds certain alleged illicit relationship of the wife on 26.10.2015, that becomes a ground for divorce in terms of a notice that is caused upon the respondent.
9. As a counter blast to the petition which the husband had filed, the respondent wife initiates two proceedings one registering a crime against the petitioner and his family members in crime No.2/2016 for offences punishable under Sections 498A and 506 of the IPC and -7- WP No. 16415 of 2021 the other filing an application before the concerned Court under the Act. It is in the proceedings under the Act, the petitioner files an application seeking reference of the child along with him and the respondent for a DNA sampling. The application is rejected and the rejection order is questioned in the subject petition.
10. It is in public domain and in medical parlance that there can be a premature child born. The child that is born in the case at hand is, after 8 months and 10 days of their marriage. This is not an unknown phenomena in gynec parlance. Merely because the wife had illicit relationship which comes to be known in the year 2015, the husband is wanting the child to undergo DNA test, that was born three years ago, out of some illicit relationship. There cannot be a better example of a myopic view and a parochial thought on the part of the husband to doubt the legitimacy of his child as not his, after about three years on an event that happens on 26.10.2015, by putting the -8- WP No. 16415 of 2021 clock back to 2012 that too, on a plea that the child was born after 8 months and 10 days of marriage and not 9 months as it generally happens.
11. In the judgment of the Apex Court relied on by the learned counsel for the petitioner, in the case of PRIYANKA JANARDHAN PATIL VS. JANARDHAN RAGHUNATH PATIL in Special Leave to Appeal No.5554/2020, dated 04.04.2022, the Apex Court permitted such DNA test to be conducted as there was a doubt about the age of the foetus. The foetus carried by the mother was 21 weeks and the date of marriage, she getting pregnant was 20 weeks and therefore, it was permitted. The facts in the case at hand is entirely different from the case which was before the Apex Court, as the complaint now made is after three years the child was born.
12. The husband want the premature baby to be tested to DNA, ostensibly to get over the proceedings that -9- WP No. 16415 of 2021 are pending against him. Therefore, there is no warrant of any interference to the order passed by the concerned Court dated 15.07.2021, on I.A.No.3 filed in Crl.Misc.No.28/2016, as the reasons rendered by the concerned Court for rejecting the application for DNA test is on sound and proper reasoning.
13. Therefore, finding no merit in the petition, the petition is dismissed.
Sd/-
JUDGE NVJ List No.: 1 Sl No.: 30