Madras High Court
S. Thangavelu vs S. Kannammal on 18 October, 2004
Equivalent citations: AIR2005MAD106, 2004(5)CTC352, I(2005)DMC204, (2004)4MLJ508, AIR 2005 MADRAS 106, (2005) 1 DMC 204, (2005) 1 HINDULR 372, (2004) 4 MAD LJ 508, (2005) 1 MARRILJ 420, (2005) MATLR 206, (2005) 1 RECCIVR 155, (2004) 5 CTC 352 (MAD), (2005) 25 ALLINDCAS 496 (MAD)
Author: P. Sathasivam
Bench: P. Sathasivam
ORDER P. Sathasivam, J.
1. The civil revision petition is directed against the order of the learned Subordinate Judge, Namakkal dated 07.04.2003 made in I.A.No.38 of 2002 in HMOP.No.140 of 2002, which was filed under Section 45 of the Indian Evidence Act and Section 151 of Code of Civil Procedure for ordering DNA Test by sending the petitioner, the respondent and her minor son Sangeeth Prem to the Center for Cellular Microbiology, Hyderabad, Andrapradesh State.
2. The petitioner - husband has filed HMOP.No.140 of 2002, praying for a decree of divorce by dissolving the marriage of him with the respondent, which was solemnised on 28.10.1984 at Tiruchengode. According to the petitioner, the said petition was filed as early as on 09.06.1998. Pending the said HMOP., the petitioner has filed I.A.No.38 of 2002 under Section 45 of the Indian Evidence Act and Section 151 CPC to order for Deoxybo Nucleic Acid Test ( in short "DNA Test"). In the affidavit filed in support of the said application it is stated that the marriage with the respondent was not consummated and he had no occasion to cohabit with the respondent from the date of marriage and the respondent was not conceived through him. In other words, according to the petitioner, the respondent's minor son Sangeeth Prem is not his offspring and progeny. In order to prove the fact that the boy is not his offspring, he is willing to submit himself for DNA Test, to prove the genetic factor. He also undertakes to pay necessary charges for the same. In the counter affidavit filed by the respondent, she has denied all the averments made by the petitioner. In addition to the same, it is stated that the marriage between the petitioner and the respondent was solemnised in 1984 and the minor son, by name, Sangeeth Prem was born to them in 1988. The above petition was filed only in the year 1998, i.e., nearly after 14 years of the marriage on the allegation that the son was not born to the petitioner. The long delay itself disproves the case of the petitioner. The petitioner is trying to alienate the joint family properties in order to meet out the expenses for his wayward life. The respondent has already filed a suit for partition in O.S.No.159 of 1997 on the file of Subordinate Judge, Sankari and the same was transferred to Sub-Court, Sankari and re-numbered as O.S.No.493 of 2002. The present petition is only a disparate attempt to harass the respondent.
3. Both parties have not let in oral and documentary evidence.
4. The learned Subordinate Judge, after finding that there is no bona fide in the claim of the petitioner and it lacks merits, ultimately dismissed the said petition.
5. The learned counsel for the petitioner placing reliance on the decision of the Apex Court in the case of Sharda vs. Dharmpal would contend that the Court has ample power to order for medical examination like DNA Test and it would not affect or interfere with the personal liberty as enshrined under Article 21 of the Constitution of India. He also contended that even in the petition filed under Section 13(1)(i)(b) of the Hindu Marriage Act,1955 for divorce, the petitioner raised an objection in categorical terms that the he came to know that the respondent gave birth to a male child on 28.05.1989 at Salem Hospital and he never had coitus with the respondent and she had not conceived through the petitioner. By pointing out the above factual details and the decision of the Supreme Court, the learned counsel submitted that the learned Subordinate Judge has committed an error in dismissing the petition.
6. It is true that in the HMOP., the respondent as RW.1 has expressed her willingness to undergo DNA Test. Equally, the petitioner in his chief examination has stated that he is ready and willing to undergo DNA Test and meet the entire expenses. As rightly pointed out by the learned counsel for the respondent, it is not in dispute that she filed a suit for partition claiming a share for her minor son even in the year 1997 i.e., well prior to the filing of divorce petition, namely HMOP.No.140 of 2002 on 09.06.1998. Again, as rightly pointed out, in order to get over the claim made in the said partition suit, the petitioner has raised a defence disputing the paternity of the child. It is relevant to note that the marriage between the petitioner and the respondent was solemnised in 1984 and according to the respondent her minor son was born in the year 1988. The present petition was filed only in the year 1998 i.e., after 14 years of marriage alleging that the minor son was not born to the petitioner. Though the Court has ample power to direct the parties to undergo medical tests or give sample of blood for DNA Test, as observed by the Hon'ble Supreme Court, the party who sought for such a relief must have a strong and prima facie case.
In the light of the reasons stated above, particularly the delay, I am of the opinion that the petitioner has not made out a strong and prima facie case as claimed. I am in agreement with the conclusion arrived at by the learned Subordinate Judge and there is no error or infirmity in the order of the learned Subordinate Judge warranting interference. It is made clear that the petitioner is at liberty to substantiate his defence by any other method, if the same is permissible under law and the present order does not preclude him.
with the above observation, this petition is dismissed. No costs.