Telangana High Court
Gajjela Veeraswamy vs Gajjela Nagaraju on 2 March, 2022
THE HON'BLE SRI JUSTICE A. VENKATESHWARA REDDY
CRP No.2479 of of 2019
ORDER:
1. This Civil Revision Petition is filed under Article 227 of the Constitution of India, assailing the order dated 20.06.2019 in I.A. No.254 of 2019 in O.S.No.86 of 2013 on the file of the learned Senior Civil Judge, Huzurabad.
2. This application in IA No.254 of 2019 was filed by the petitioner/plaintiff under Section 45 (6) of Indian Evidence Act, 1872 (for short 'Evidence Act') read with Section 151 of the Civil Procedure Code, 1908 (for short 'IPC') with a request to refer the first respondent/first defendant along with him for DNA test, directing the first defendant to give his blood samples before the Duty Medical Officer at Government Hospital, Huzurabad for examination of DNA test of the plaintiff along with first defendant to ascertain the paternity of the plaintiff. The first defendant has assailed the said order, through this civil revision petition.
3. The original suit in OS No.86 of 2013 was filed by the plaintiff for partition and separate possession of suit schedule Page 2 of 9 AVRJ CRP No.2479 of 2019 properties claiming 1/8th share out of the retirement service benefits of first defendant, which is referred as suit property. The first defendant has denied the paternity of the plaintiff in the written statement filed in the month of April, 2014 stating that when the plaintiff is not his son, and not entitled to seek any partition, much less 1/8th share in the suit schedule properties, thereby the plaintiff has filed an application in IA No.254 of 2019 under Section 45 of Evidence Act r/w Sec.151 of CPC to refer the plaintiff along with the first defendant for DNA test and it was allowed.
4. Assailing the said orders, this civil revision petition is filed by the first defendant on the following grounds:
a) that the Court below failed to appreciate the rival contentions and the principles laid by the Hon'ble Supreme Court of India in Dwarika Prasad Satpathy v.
Sidyut Prava Dixit and another1 and other decisions;
b) that though the suit is filed in the year 2013 for partition, the plaintiff has deliberately failed to adduce evidence and that the plaintiff is aware that he is not 1 2000 Crl.L.J. 1 SC at page-1 Page 3 of 9 AVRJ CRP No.2479 of 2019 the son of the first defendant and filed this application only to harass the first defendant;
c) that the Court below has erred in holding that the mother of the plaintiff by name Gajjela Laxmi received maintenance in MC No.37 of 2005 being the wife of the first defendant. In fact, the orders in MC No.37 of 2005 u/s.125 of CPC were set aside by the I Additional District Judge, Karimnagar in Criminal Revision Case No.13 of 2002; and
d) that the Court below has arrived at a conclusion for referring the first defendant for DNA test relying on the judgment rendered in Rohith Shekhar v. Narayan Dutt Tiwari passed in FAO (OS) No.457 of 2011, which is altogether a different case.
5. Heard learned counsel for the petitioner and the respondent. Perused the material available on record. For the sake of convenience, the parties are hereinafter referred to as plaintiff and defendants as arrayed in the original suit.
Page 4 of 9
AVRJ CRP No.2479 of 2019
6. The plaintiff has filed original suit for partition and separate possession claiming retirement benefits of first defendant. It is averred in the counter filed by the first defendant before the trial Court that the plaintiff has failed to adduce evidence. It is true though the original suit is filed in the year 2013, since August 2018 the further chief examination of PW.1 is not yet completed and while evidence of PW.1 is in progress, the present application is filed on 10.04.2019.
7. It is observed in the order impugned that the mother of plaintiff by name Gajjela Laxmi has received maintenance, vide MC No.37 of 2005 from the first defendant, being his wife, if the plaintiff fails to prove his paternity, his reputation in the society will degrade causing great loss to his personal life and that by sending the DNA sample of the first defendant along with that of the plaintiff, it will be known whether the plaintiff is son of first defendant or not and that the plaintiff is entitled for fair opportunity and relying on the judgment of Delhi High Court in Rohith Shekhar's case (stated supra), the impugned order was passed. Page 5 of 9
AVRJ CRP No.2479 of 2019
8. Thus, before leading oral or documentary evidence, merely because the first defendant has denied the paternity of plaintiff in his written statement, on the application of the plaintiff, the Court below directed the first defendant to undergo DNA test along with the plaintiff.
9. The Hon'ble Supreme Court of India in the case of Ashok Kumar v. Raj Gupta and others2 while dealing with similar facts in a civil suit where pleadings were exchanged and after closure of the plaintiff's evidence, defendants have filed an application for subjecting the plaintiff to DNA test, held that the defendants cannot compel the plaintiff to adduce further evidence in support of defendants' case. In any case, it is the burden on a litigating party to prove his case adducing evidence in support of his plea and the Court should not compel a party to prove his case in the manner suggested by the contesting party. When the plaintiff is unwilling to subject himself to DNA test, forcing him to undergo one would impinge on his personal liberty and his right to privacy. Seen from 2 2021 Law Suit (SC) 596 Page 6 of 9 AVRJ CRP No.2479 of 2019 this perspective, the impugned judgment merits interference and it is set aside.
10. The learned counsel for the petitioner/defendant No.1 also relied on the principles laid by the Hon'ble High Court of Andhra Pradesh in the case of Medida Veeraiah @ Veera Reddy and others v. Medida Vijaya Narasimha Rao and others3 wherein it is held that a DNA test can be ordered in appropriate cases where there is a necessity, but DNA test cannot be ordered in a routine manner.
11. Section 112 of Evidence Act deals with proof of legitimacy of child born during subsistence of marriage. The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within 280 days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he/she is the legitimate child 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/she could have been begotten. 3 2019 (2) ALD 160 Page 7 of 9 AVRJ CRP No.2479 of 2019
12. Reverting back to the facts of the present case, the main contention of the plaintiff is that his mother has filed a maintenance case, vide MC No.37 of 2005 against the first defendant and she was getting maintenance, but the same is denied by the first defendant stating that aggrieved by the orders in MC No.37 of 2005, he has filed Criminal Revision Case and vide Crl. R.C.No.13 of 2002, the learned I Additional Sessions Judge at Karimnagar has set aside the said order, but the Court below failed to consider this aspect. Be that as it may, merely because maintenance was awarded to the mother of plaintiff against the first defendant that by itself is not sufficient for the plaintiff to claim his share in the suit schedule property of the first defendant. The question therefore is in a suit for partition, where the rights of the parties are involved whenever the plaintiff's paternity is disputed or denied by the first defendant whether plaintiff is entitled to subject the first defendant to undergo DNA test against his wishes.
13. The law is well settled that the plaintiff even without subjecting the first defendant for DNA test is entitled to establish Page 8 of 9 AVRJ CRP No.2479 of 2019 his right over the property in question through other material evidence. The timing of application is equally relevant.
14. In the present case, trial commenced very recently, evidence of PW.1 is in progress, the plaintiff is at liberty to adduce the required material evidence before the trial Court, thereafter if necessary, he may file such application. But even then, without the consent of the first defendant, he may not be subjected to or forced to undergo a DNA test to establish the paternity of the plaintiff.
15. In that view of the matter, I am of the considered opinion that the learned trial Court failed to notice the sensitivities involved in the issue of ordering DNA test. It appears that the order impugned is passed merely based on emotions than on reasons with an observation that when the paternity of plaintiff is denied, it raises serious objections with regard to his birth itself, which cannot be tolerated by any person and it may also cause great loss to his personal life. But in the facts and circumstances of the case, as discussed above, such direction to the first defendant to undergo DNA test against his consent, would impinge on his personal liberty and his right to privacy. Seen from this perspective, in view Page 9 of 9 AVRJ CRP No.2479 of 2019 of the principles laid by the Hon'ble Supreme Court in Ashok Kumar's case (second supra), the impugned order warrants interference by this Court and it is liable to be set aside.
16. In the result, the Civil Revision Petition is allowed. The order impugned dated 20.06.2019 in I.A. No.254 of 2019 in O.S.No.86 of 2013 on the file of the learned Senior Civil Judge, Huzurabad, is hereby set aside. However, in the circumstances of the case, there shall be no order as to costs.
As a sequel, miscellaneous applications, if any pending shall stand closed.
_______________________________ A. VENKATESHWARA REDDY, J.
Date: 02.03.2022 Isn