Karnataka High Court
Smt. Yashoda Bhujang Shatawani, vs Sir. Suresh Shidappa Desurkar, on 10 January, 2014
Author: N.Kumar
Bench: N.Kumar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 10TH DAY OF JANUARY 2014
BEFORE
THE HON'BLE MR. JUSTICE N.KUMAR
WRIT PETITION NO.65290/2012 (GM-CPC)
BETWEEN:
SMT.YASHODA BHUJANG SHATAWANI,
AGE: 61 YEARS, OCC: AGRICULTURE,
R/O: SAVAGAON VILLAGE,
TQ & DIST: BELGAUM.
... PETITIONER
(BY SRI.SUNIL S.DESAI FOR M/S GOULAY ASSTS., ADV.)
AND:
1. SIR.SURESH SHIDAPPA DESURKAR,
AGE: 61 YEARS, OCC: BUSINESS,
R/O: MUN NO. 43/60,
TANAJI GALLI, BELGAUM.
2. SRI.PRABHAKAR SHIDAPPA DESURKAR,
AGE: ABOUT 55 YEARS, OCC: BUSINESS,
R/O: MUN NO. 43/60,
TANAJI GALLI, BELGAUM.
SRI.MUKUND SHIDAPPA DESURKAR
SINCE DECEASED BY HIS LRS,
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3. SMT.BALABAI W/O SHIDAPPA DESURKAR,
AGE: MAJOR, OCC: HOUSEHOLD,
4. SMT.REKHA W/O MUKUND DESURKAR,
AGE: MAJOR, OCC: HOUSEHOLD,
5. KUM.ROHAN S/O MUKUND DESURKAR,
MINOR, OCC: STUDENT,
6. KUM.PANKAJ S/O MUKUND DESURKAR,
AGE: MINOR, OCC: STUDENT,
7. KUMARI PRIYANKA D/O MUKUND DESURKAR,
MINOR, OCC: STUDENT,
ALL ARE R/O: MUN NO. 43/60,
TANAJI GALLI, BELGAUM.
8. SMT.VIMAL W/O NETAJI KHANDEKAR,
AGE: MAJOR, OCC: HOUSEHOLD,
R/O: APTEKAR GALLI, MAHADWAR ROAD,
CROSS NO. 4, BELGAUM.
9. SMT.NIRMALA W/O LAXMAN BHATKHANDE,
AGE: MAJOR, OCC: HOUSEHOLD,
R/O: CHANDAGAD, TQ: CHANDAGAD,
DIST: KOLHAPUR, MAHARASHTRA.
10. SMT.VIJAYA SIDAPPA DESURKAR,
AGE: MAJOR, OCC: HOUSEHOLD,
R/O: MUNNO 43/60, TANAJI GALLI,
BELGAUM.
... RESPONDENTS
(BY SRI.M.G.NAGANURI, ADV. FOR R1, R2, R4-R10.
R3 IS DEAD BY LRS. R1, R2 AND R4 TO R10)
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THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER DATED 15/06/2012 PASSED BY THE
LEARNED III ADDITIONAL CIVIL JUDGE AND JMFC,
BELGAUM, ON I.A.NO.25 IN O.S.NO.174/2001 AS PER
ANNEXURE-F.
THIS PETITION COMING ON FOR FINAL HEARING
THIS DAY, THE COURT, MADE THE FOLLOWING:
ORDER
This writ petition is filed challenging the order passed by the trial Court. An application under Order 26 Rule 10(a) of CPC. - I.A.No.15 is filed for a direction to collect the blood samples of plaintiff and defendant Nos.2, 3, 5 to 7 for the purpose of DNA test in order to prove the paternity of the plaintiff.
2. The plaintiff has filed a suit against the defendants for partition and separate possession. She claims to be the daughter of one Shidappa Kallappa Desurkar, the first defendant in the suit. The other defendants are the children of the first defendant. The :4: defendants have filed a written statement denying that she is the daughter of Shidappa Kallappa Desurkar. The plaintiff has adduced evidence, the defendants have also adduced evidence. Thereafter, in the meanwhile the first defendant died even before his evidence could be recorded. It is in this background, the plaintiff has filed the present application for comparison of her blood with the blood of defendant Nos.2, 3, 5 to 7 to prove the paternity. It is not in dispute that the mother of the plaintiff and the mother of the defendant Nos.2, 3, 5 to 7 are different. The plaintiff claims to be daughter of first defendant through Awalabai.
3. The trial Court was of the view that the plaintiff has to prove that she is the daughter of defendant No.1 by placing oral and documentary evidence. The plaintiff is seeking a DNA test to prove that she is the daughter of first defendant, she has no documentary evidence to show that her mother is the wife of first defendant. The application filed is for the purpose of collecting the evidence, which is :5: not permissible in law, therefore he rejected the application. Aggrieved by the said order the present writ petition is filed.
4. I have heard both the learned advocates appearing for the parties.
5. When the first defendant has denied that the plaintiff is his daughter, one of the mode by which the plaintiff can prove that he is the father is by DNA test, now that is well settled. After the death of the first defendant, she wants her blood to be tested along with the blood of the first defendants' children, which is not permissible in law. They cannot be subjected to DNA test against their wish, as they have no manner of relationship with the plaintiff. The plaintiff's mother is totally different from the mother of the other defendants. In those circumstances, though the reasons given by the trial Court for rejecting the application may not be satisfactory. Even otherwise, that :6: application cannot be allowed for the reasons set out by me in this order. No merits, dismissed.
Sd/-
JUDGE Vnp*