Karnataka High Court
Muni Anjanappa @ Thammaiah vs Smt Roopa @ Gangalakshmi on 16 November, 2022
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
-1-
WP No. 22273 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
R
DATED THIS THE 16TH DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
WRIT PETITION NO. 22273 OF 2022 (GM-FC)
BETWEEN:
MUNI ANJANAPPA @ THAMMAIAH
S/O LATE HANUMAIAH,
AGED 42 YEARS,
RESIDING AT NO.58,
AGARA VILLAGE, KENGERI HOBLI,
BENGALURU - 560 062.
...PETITIONER
(BY SRI. S.G.HEGDE, ADVOCATE)
AND:
1. SMT.ROOPA @ GANGALAKSHMI
D/O LATE R.GANGARAJU,
AGED ABOUT 37 YEARS,
Digitally signed by R/AT YELLAPANAPALYA,
PADMAVATHI B K
Location: HIGH THIPPEGONDANAHALLI POST,
COURT OF THAVAREKERE HOBLI,
KARNATAKA
BENGALURU SOUTH TALUK.
2. SRI HEMANTH @ MANJU
S/O BYRAHANUMAIAH
(POLICE DEPARTMENT)
AGED ABOUT 41 YEARS,
-2-
WP No. 22273 of 2022
R/AT NEAR APPOLLOW SCHOOL,
4TH CROSS, HEGANAHALLI CROSS,
VISHWANEEDAM POST,
BENGALURU - 560 091.
...RESPONDENTS
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET
ASIDE THE IMPUGNED ORDER DTD 01.10.2022 PASSED ON
I.A.NO.XVII IN M.C.NO.3020/2012, ANNEXURE-M AND
FURTHER ALLOW THE SAID APPLICATION.
THIS WRIT PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is before this Court calling in question an order dated 01.10.2022, passed on I.A.No.XVII in M.C.No.3020/2012 by the I Additional Principal Judge, Family Court, Bengaluru, whereby, the claim of the petitioner for referring the matter to a DNA analysis for the second time, is rejected.
2. Heard Sri S.G.Hegde, learned counsel for the petitioner.
-3-WP No. 22273 of 2022
3. Brief facts that lead the petitioner to this Court in the subject petition as borne out from the pleadings are:
The marriage between the petitioner and first respondent takes place on 24.05.2010. It is the claim of the petitioner that right from the date of marriage, the wife refused to cohabit with the petitioner and they did not live together. The couple, from the wedlock, have a girl child born on 14.09.2011. On the relationship turning irretrievably sore, a petition comes to be filed under Section 13(1)(i)(i-a) of the Hindu Marriage Act, 1955, seeking annulment of marriage by the husband. When the matter was pending consideration and during the course of evidence, the petitioner files an application in I.A.No.13 under Section 45 of the Evidence Act, seeking conduct of a DNA test of the child. The premise on which the application was filed was that, the wife was in an adulterous relationship with another man. Therefore, the child that was born was not his. The application filed on 22.07.2019, comes to be allowed with a direction to conduct a DNA test on the child based upon the consent given by the mother. On 28.09.2021, on the application being allowed, the petitioner suggests the name of -4- WP No. 22273 of 2022 the Court Commissioner, who could collect the blood samples of the parties and transmit it to the forensic science laboratory for the conduct of the test. The blood samples were sent to the Director, Forensic Science Laboratory, Madivala, which is a Government laboratory. The test was conducted and the test report was marked in evidence on 28.02.2022. The test report was that, the girl child is the daughter of the petitioner. The petitioner then claims to have come to know that the DNA test was not conducted by the Director who was appointed as the Court Commissioner, but was conducted by Dr. K.R.Asha, who is a doctor by profession, possessing degrees of Msd. Phd. Therefore, another application is filed in I.A.No.17, for another test, again disputing the paternity. This time, the application filed is for sending the DNA samples to FSL, Hyderabad. The concerned Court by its order dated 01.10.2022, dismisses the application. It is this order that is called in question by the petitioner in the subject petition.
4. Learned counsel for the petitioner would contend that the Court Commissioner appointed was the Director of Forensic Science Laboratory, Madivala. The test is conducted by the -5- WP No. 22273 of 2022 doctor and not by the Director, who has signed with regard to the veracity of the paternity. Therefore, it is in violation of the Court order and test has to be redone as no sanctity can be laid to the test conducted by any other person, who was not appointed to conduct the test. He seeks stay of all further proceedings or quashment of the order.
5. The afore-narrated facts are not in dispute. The petitioner and the 1st respondent got married on 24-05-2010 and the couple, from the wedlock have a girl child born on 14.09.2011. The paternity of the father is what is disputed by the petitioner in a proceeding seeking annulment of marriage. An application is filed on 22-07-2019, seeking a direction for conduct of DNA test on the child of the couple. The mother gives consent for the DNA test. The reason for seeking DNA test was that, the 1st respondent/wife and the 2nd respondent had illicit relationship and the child was born to the 2nd respondent and not to the petitioner. Therefore, the petitioner doubts paternity of the child. To bring home the allegation that the wife had adulterous relationship with the 2nd respondent, DNA test was sought which was permitted by the concerned -6- WP No. 22273 of 2022 Court on consent. The application filed under Section 45 of the Evidence Act was allowed with a condition that the petitioner should bear entire expenses and also suggest the name of the Commissioner for examining the petitioner and his child. The blood samples were taken by the Casualty Medical Officer of the Victoria Hospital and blood samples were transmitted to Forensic Science Laboratory, Bengaluru, for DNA test. The test was conducted and a report was placed before the concerned Court. The report reads as follows:
"From the comprehensive analysis of the test results as shown in Annexure-I it is found that:
The alleles in the DNA profile result of Kum.Dhanavi, d/o Smt. Roopa G @ Gangalakshmi, sample blood sent in item no.3, is consistent with having come from the offspring of Muni Anjanappa S/o Late Mr. Hanumaiah and Smt. Roopa G @ Gangalakshmi w/o Mr.Muni Anjanappa and matching with that of the alleles in the DNA profile result of sample blood sent in item nos.1 and 2 respectively, under 23 STR (short tandem repeats) loci.
OPINION From the DNA profile results of the samples sent, it is found that:
The DNA profile result of the Kum.Dhanavi d/o Smt. Roopa G @ Gangalakshmi, sample blood sent in item no.3, is matching with the DNA profile result -7- WP No. 22273 of 2022 of Muni Anjanappa s/o Late Mr. Hanumaiah and Smt. Roopa G @ Gangalakshmi w/o Mr. Muni Anjanappa, sample blood sent in item nos.1 and 2 respectively.
Therefore, Smt. Roopa G @ Gangalakshmi w/o Mr.Muni Anjanappa, sample blood sent in item no.2 is included from being the biological mother and Muni Anjanappa S/o Late Mr. Hanumaiah, sample blood sent in item No.1 is included from being the biological father of Kum.Dhanavi d/o Smt. Roopa G @ Gangalakshmi, sample blood sent in item no.3.
Sd/-
(Dr. Asha K.R.) M.Sc.Ph.D. Dispatch No.SFSL/69/1023/2021, Date 02-02- 2022 Forwarded: Receipt of the same may please be acknowledged.
Sd/-
Director, State Forensic Science Laboratory, Bengaluru-68."
(Emphasis added) The opinion of the Forensic Science Laboratory was that, the petitioner is the biological father of Kum. Dhanavi, daughter of the 1st respondent. The report was thus confirming the fact that the petitioner is the father of the child and therefore, the child was born from the wedlock of the petitioner and the 1st respondent.
-8-WP No. 22273 of 2022
6. Evidence was let in on the basis of the report. During the cross-examination, while answering the question Dr. K.R.Asha deposes that she conducted the test and sustained the contents of the report. The moment Dr. Asha states that she conducted the test, another application springs from the hands of the petitioner. This time, contending that the Court Commissioner appointed was the Director of FSL Laboratory, Bangalore, who alone had to conduct the test and not the doctor who was only a subordinate to the Director. On this hyper-technical plea, the petitioner files another application in I.A.No.17 seeking that the Director of Forensic Laboratory, Hyderabad, should take the blood samples of the petitioner, the first respondent and the child for conducting blood group and genotypic test to determine the question of paternity of the child. This application is rejected by the concerned Court holding that once the DNA test is done and report is on record, for the purpose of removal of any anomaly in the report, there is no question of referring the matter to second DNA test. This rejection drives the petitioner to this Court in this petition. -9- WP No. 22273 of 2022
7. As observed hereinabove, the contention of the learned counsel appearing for the petitioner is that, Dr. K.R.Asha was a subordinate to the Director, who was appointed as Commissioner to conduct the test and it was the Director and nobody else could have conducted the test.
8. A perusal at the report (supra) demonstrates that the test was conducted by Dr. K.R.Asha. This is checked, verified and endorsed by the Director of Forensic Science Laboratory. It is not that Dr. K.R. Asha was not qualified to conduct the test but the contention is that, the Director who has been appointed to conduct the test alone could have conducted the test and testified the report. This is, on the face of it unacceptable as it is fundamentally flawed. Tests in the Laboratory are being done by qualified doctors, verified and endorsed by the Director. Merely because the report has gone against the petitioner, the petitioner cannot be permitted to keep asking for DNA test of the child every time doubting paternity.
9. It is settled principle of law that the Court cannot compel parties to undergo DNA test for the second time. The
- 10 -
WP No. 22273 of 2022earlier DNA test which has emanated from Government hospital/laboratory cannot be treated as doubtful or set aside, merely on the outlandish vague allegations of the petitioner, since the result of the earlier test is against him and when there is already a DNA test available, there can never be a need for DNA test over again, unless a reasonable degree of suspicion on the report comes about and in exceptional circumstances.
10. If the application of the petitioner is permitted and a second DNA test is directed to be conducted, it would be putting a premium on the litigative persistence of the petitioner in seeking a test until a report comes in his favour. Even the first effort to obtain a DNA report was on consent, it is therefore, the Court had permitted DNA test. There can be no question of second DNA test, merely because the husband wants to somehow prove the adultery and to escape any liability of taking care of the wife and child. The petition ought to have been dismissed with exemplary costs. This Court is holding its hands only on the ground that the parties are at
- 11 -
WP No. 22273 of 2022large in a divorce proceedings and this should not further burden the petitioner/husband.
11. Finding no merit in the petition, the petition meets its dismissal and is, accordingly dismissed.
Sd/-
JUDGE NVJ List No.: 1 Sl No.: 18