Madras High Court
Neerkathalinga Pandian vs Mrs. Komala And Mr. P. Chandra on 7 November, 2006
Equivalent citations: (2006)4MLJ1909
Author: S. Ashok Kumar
Bench: S. Ashok Kumar
ORDER S. Ashok Kumar, J.
Page 2999
1. Aggrieved over the order of the Second Additional Principal Judge, Family Court, Chennai, passed in I.A. No. 109 of 2004 in O.S. No. 16 of 2004, this revision has been filed.
2. The brief facts of the case are as follows:
(a) The first respondent herein filed O.S. No. 16 of 2004 against the revision petitioner and one Chandra, his wife for declaration that the plaintiff is the daughter of the first defendant (revision petitioner) born out of the wedlock between the first defendant and the second defendant i.e., the second respondent herein. The case of the first respondent as the plaintiff was that the first defendant and the second defendant got married during 1966 at the residence of the second defendant at No. 9, Elephant Tank, Triplicane, Chennai-5 by exchange of garlands and they lived as husband and wife. The first respondent-plaintiff was born on 16.5.1957 in K.G. Hospital at Triplicane, Chennai. During 1969, the second defendant gave birth to another child which died in the womb before delivery. The first defendant (revision petitioner) without any reason deserted his wife, the second defendant during 1970, from when she was unable to trace the first defendant because the revision petitioner shifted his business from Pudhucherry and settled down somewhere in Madras. The plaintiff came to now the whereabouts of the revision petitioner and when went to his house, he behaved indifferently Page 3000 and on 28.2.2000 lodged a false complaint before the Inspector of Police and with his money power and influence of the muscle power got a undertaking letter from the Police that in future the plaintiff would not visit the revision petitioner's house and indulge in any kind of quarrel with him.
(b) The revision petitioner/first defendant filed a written statement in the suit denying the allegations contained in the plaint. He highlighted the pleadings filed by the second defendant in the Family Court at Pudhucherry, wherein the second defendant has claimed that she was married to one Durairajan during 1970 at Kattukuppam and three children were born namely, Komala, Prema and Ramalingam. Therefore the revision petitioner contended that the plaintiff is not his daughter. Since the paternity of the plaintiff was denied by the petitioner, she filed an application before the court to pass an order for medical examination of the revision petitioner/first defendant and the second defendant for the purpose of deciding her parentage. The learned Second Additional Principal Family Judge, Principal Family Court, Chennai allowed the same. Aggrieved over the said order, this CRP is filed.
3. The learned Counsel appearing for the revision petitioner/first defendant would contend that the second respondent/second defendant herself has admitted in the Plaint in O.S. No. 34 of 1996 filed before the Family Court, Pudhucherry that she was married to one Durairajan and the plaintiff/first respondent was born through the said wedlock. In the said suit O.S.No. 34 of 1996 the the said Durairajan, first defendant therein also contended that the plaintiff, the first respondent herein was not born to him and the learned Trial Judge has also accepted that the plaintiff Komala was not born to Durai @ Durairajan. The contention of the plaintiff, the first respondent herein is that her mother and father got married in 1966 and she born in 1967. It is her case that O.S.No. 34 of 1996 on the file of the Family Court Pudhucherry speaks about the marriage of Chandra, the second respondent/second defendant with that of Durai @ Durairajan in the year 1970, whereas the present suit is for a declaration that she is the daughter of the revision petitioner and the second respondent born on 16.5.1967 in K.G. Hospital, Triplicane, Chennai. It is also represented that the revision petitioner aged above 70 years and any delay in the matter of scientific determination of the parentage by medical examination will prejudice the purpose for which the present suit has been filed.
4. In (Sharda v. Dharmpal), the Hon'ble Supreme Court case held that no right to privacy is specially conferred under Article 21 of the Constitution of India and personal liberty under Article 21 cannot be held as an absolute right. Their Lordships have further held as follows:
71. The matter may be considered from another angle. In all such matrimonial cases, where divorce is sought, say on the ground of impotency, schizophrenia. etc., normally without there being medical Page 3001 examination, it would be difficult to arrive at a conclusion as to whether the allegation made by his spouse against the other spouse seeking divorce on such a ground, is correct or not. In order to substantiate such allegation, the petitioner would always insist on medical examination. If respondent avoids such medical examination on the ground that it violates his/her right to privacy or for a matter right to personal liberty as enshrined under Article 21 of the Constitution of India, then it may in most of such cases become impossible to arrive at a conclusion. It may reader the very grounds on which divorce is permissible nugatory. Therefore, when there is no right to privacy specially conferred by Article 21 of the Constitution of India and with the extensive interpretation of the phrase "personal liberty" this right has been read into Article 21, it cannot be treated as absolute right. What is emphasised is that some limitations on this rig ht have to be imposed and particularly where two competing interests clash. In matters of aforesaid nature where the legislature has conferred a right upon his spouse to seek divorce on such grounds, it would be the right of that spouse which comes in conflict with the so called right to privacy of the respondent. Thus the court has to reconcile these competing interests by balancing the interests involved.
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75. So viewed, the implicit power of a Court to direct medical examination of a party to a matrimonial litigation in a case of this nature cannot be held to be violative of one's right of privacy.
To sum up, our conclusions are:
1. A matrimonial court has the power to order a person to undergo medical test.
2. Passing of such an order by the court would not be in violation of the fight to personal liberty under Article 21 of the Indian Constitution.
3. However, the court should exercise such a power if the applicant has a strong prima facie case and there is sufficient material before the Court. If despite the order of the court, the respondent refuses to submit himself to medical examination, the Court will be entitled to draw an adverse inference against him.
5. There is a common saying that maternity is certainty and paternity is disputable. Learned Counsel for the petitioner submits that the mother knows who is the father of her child. Therefore she is bound by the pleadings in O.S. No. 34 of 1996 filed by her before the Family Court at Pudhucherry. Only in those cases where the lady has not shred the bed with any other person, except her husband, can certainly say who is the father of the child. A woman who had intimacy with another person or other persons during the subsistence of her marriage with her husband cannot say with certainty who is the father of the child. In this case, the second respondent married the petitioner in the year 1966 and the plaintiff first respondent was born in the year 1967. After desertion by the revision petitioner it is alleged that she married one Durairaj in the year 1970. Therefore, the probability of the revision petitioner being the father of the first respondent cannot be denied.
Page 3002
6. The birth extract shows the names of the father as Pandian and mother as Chandra. The revision petitioner wants to take advantage of the fact that his full name is not mentioned in the birth certificate. That is why the blood test has been ordered by the trial court. The birth certificate and oral testimony may lie, but a scientific test like DNA and RNA would bring a conclusive proof with regard to the paternity and maternity of the child.
7. Therefore, this Civil Revision Petition is dismissed. The revision petitioner and the 1st and second respondents are directed to appear before the Dean, Government General Hospital, Chennai-2, on 22.11.2006 and subject themselves for such tests.
8. Consequently, connected CMP is also dismissed. No costs.