Kerala High Court
Hajira Beevi And Ors. vs Shamila P. Iqbal And Anr. on 4 November, 2003
Equivalent citations: AIR2004KER240, II(2004)DMC392, AIR 2004 KERALA 240, (2004) MATLR 551, (2004) 2 DMC 392, (2004) 18 INDLD 23
Author: P.R. Raman
Bench: P.R. Raman
ORDER P.R. Raman, J.
1. The defendants 1, 3 and 4 in a suit for partition (O. S. No. 128/2000) instituted by the 1st respondent herein, who is the plaintiff before the sub Court, Ernakulam are the revision petitioners. The 2nd respondent herein is the 2nd defendant in the said suit. The question that arises for consideration is as to whether the 1st respondent can be compelled to undergo DNA test as applied for by the petitioners by filing I. A. No. 2250/2000. The Court below found by the impugned order that one cannot be compelled to undergo DNA test against her wish and the application was dismissed. The suit property belonged to one Mohammed Iqbal, the husband of the 1st defendant, the 1st petitioner herein. There is yet another suit filed by one of the sons pending before the said Court for partition. Later the 1st respondent herein also instituted a suit for partition claiming separate share in the property belonged to her father, Mohammed Iqbal, the 1st petitioner herein took up a contention that the 1st respondent is not her daughter but only an adopted child. Whereas the 1st respondent contended that she is entitled to the share of the property belonged to her father and she claimed to be the natural born child of Mohammad Iqbal and the petitioner. Though the trial of the suit is started, it was at that time that the present application was filed seeking for a direction to the 1st respondent herein to undergo DNA test.
2. In the impugned order, the learned Sub-Judge after referring to the contentions of the parties, came to the conclusion that it is unjust to compel the 1st respondent to undergo DNA test and hence the petition closed. However, there is an observation in the impugned order in the following lines :
The learned counsel for the respondent would argue that 1st respondent is the daughter of the petitioner and late Mohammed Iqbal and that she cannot be compelled to undergo DNA test. Of course it has been laid down in a series of judicial pronouncements that nobody can be compelled to undergo DNA test."
3. The learned counsel for the petitioners strenuously contended before me that the Court below is not powerless to order DNA test in appropriate cases and the observation of the court below that one cannot be compelled against her wish to undergo DNA test is misconceived of the legal position. According to the counsel, various decisions of the Apex Court arise out of the presumption arrived at under Section 112 of the Evidence Act which provides that 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 is the legitimate son 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 could have been begotten. According to him, the conclusive proof arising under Section 112 of the Act is only regarding the paternity of the child and will not apply to the maternity of the child. In other words, when there is a dispute as to who is the mother of the child in the absence of any such presumption under Section 112 of the Act, it is still open to the parties to adduce evidence on the question regarding the same.
4. In this connection the counsel also placed reliance on the decision of the supreme Court in Kanti Devi v. Poshi Ram, AIR 2001 SC 2226 wherein the Apex Court considered the question as to when Section 112 raises a conclusive presumption about the paternity of the child born during the subsistence of a valid marriage and whether it is still open to a party to escape from the conclusiveness of Section 112 of the Act by conducting another DNA test. In that regard the Apex Court held that Section 112 which raises a conclusive presumption about the paternity of the child born during the subsistence of a valid marriage, itself provides an outlet to the party who wants to escape from the rigour of that conclusiveness. The said outlet is, if it can be shown that the parties had no access to each other at the time when the child could have been begotten the presumption could be rebutted. In other words, the party Who wants to dislodge the conclusiveness has the burden to show a negative, not merely that he did not have the opportunity to approach his wife that she too did not have the opportunity of approaching him during the relevant time.
5. In that context, it was also held that the result of a genuine DNA test is said to be scientifically accurate. But even that is not enough to escape from the conclusive ness of Section 112 of the Act, e.g. if a husband and wife were living together during the time of conception but the DNA test revealed that the child was not born to the husband, the conclusiveness in law would remain unrebuttable. This may look hard from the point of view of the husband who would be compelled to bear the fatherhood of a child of which he may be innocent. But even in such a case the law leans in favour of the innocent child from being bastardized if his mother and her spouse were living together during the time of conception.
6. In Goutam Kundu v. State of West Bengal, AIR 1993 SC 2295 the Apex Court has considered as to whether the blood testing is useful to determine paternity and after elaborate discussion on the point as to whether rebuttable presumption of law arises that a child born during the lawful wedlock is legitimate and that access occurred between the parents. It can only be displaced by a strong preponderance of evidence, and not by a mere balance of probabilities. Based on the discussion the points formulated in paragraph 26 is as follows :--
"From the above discussion it emerges :--
(1) That Courts in India cannot order blood test as a matter of course;
(2) Wherever applications are made for such prayers in order to have roving inquiry, the prayer for blood test cannot be entertained.
(3) There must be a strong a prima facie case in that the husband must establish non-access in order to dispel the presumption arising under Section 112 of the Evidence Act.
(4) The court must carefully examine as to what would be the consequence of ordering the blood test; whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman.
(5) No one can be compelled to give sample blood for analysis."
7. In the latest decision of the Supreme Court in Sharda v. Dharmpal (2003) 4 SCC 493 : (AIR 2003 SC 3450) the Apex Court has considered under Article 21 of the Constitution of India whether a matrimonial Court has the power to direct a party to undergo medical examination and whether passing of such an order would be in violation of Article 21 of the Constitution of India. The Apex Court concluded that the matrimonial court the power to order a person to undergo medical test. The decision was summed up in paragraph 81 as follows :--
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 right 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."
8. In Sadashiv Mallikarjun Kheradkar v. Nandini Sadashiv Kheradkar (1995 Cri LJ 4090 (Bombay) it was held in paragraphs 8 and 9 as follows :--
There is no provision either in the Evidence Act or in the Hindu Marriage Act or in the Code of Civil Procedure or in the Code of Criminal Procedure providing for direction to a party to submit himself or herself for giving blood sample for examination. In the absence of such a provision, the court can always invoke Section 151 of the Code of Civil Procedure for giving appropriate directions in the larger interests of justice. We have the latest authority of the Apex Court reported in AIR 1993 SC 2295: (1993 Crl LJ 3233) (Goutam Kundu v. State of West Bengal) where the question of paternity of child and blood test was discussed and certain guidelines have been laid down. The Apex Court has observed that the court has power to direct the blood examination but it should not be done as a matter of course or to have a roving inquiry. There must be some strong prima facie case to be established by the husband to show non access in order to get over the legal presumption under Section 112 of the Evidence Act and Supreme Court has also observed that nobody can be compelled to give blood sample. Therefore, the position is that the Court has power to give a direction to a party to give blood sample for the purpose of examination of the same but the party cannot be compelled to give blood for testing purpose. In other words, the Court can direct a party and if the party fails to obey the direction, the Court cannot compel the party to give blood sample. In such circumstances, when there is a direction and non-compliance by a party, the only thing is that the Court may draw an adverse inference against the parry who fails to give blood samples in spite of the direction of the Court.
In my view, since there is sufficient foundation led in the pleading and the petitioner is seriously asserting that the child is not born to him, in the interest of justice, I feel that the respondent should be called upon to give blood sample and if she fails to obey this order, nothing can be done to compel her, but it is left to the court draw such adverse inference depending upon the circumstances of the case."
9. From the above dictum laid down by the Apex Court as well as other High Court, it cannot be said that the Court has no power to order blood test or DNA test to be conducted. Nobody has got a fundamental right as such without anything more on facts to object to such test being conducted. At the same time the Court has made it clear that it is only in appropriate cases where such a direction is found necessary on the factual situation arising in the case that such a course should be adopted. Therefore, to put it widely that the Court cannot compelled to a person to undergo a blood test or medical test will be contrary to the decision laid down by the Apex court as aforesaid. Therefore, the observation made in the impugned order as having held that the court has no power to order DNA test to be conducted cannot be sustained. But in the impugned order, the Court-below has further held that from the facts and circumstances of the case it is unjust to compel the respondent to undergo DNA test. As a matter of fact whether or not such a DNA test is required to be done is a matter that will have to be considered in the facts and circumstances of the case.
10. Even according to the petitioner, when the presumption under Section 112 is not available to prove paternity of the child, then certainly it is for the person to prove the fact by adducing independent evidence, if that becomes the relevant issue in the case. According to the learned counsel for the respondent, in the present case no such test is necessary or relevant for decision of the issues arising in the case. According to him, the property sought to be partitioned belonged to the father and as per the Muslim Law paternity of the father is sufficient for the purpose of claiming any right over the property belonging to the father. Any way, this question does not arise for consideration at this stage. According to me, even the present application is premature in the sense that only after the entire evidence is over the Court-below should come to the conclusion as to whether in the facts and circumstances of the case and on the basis of the materials on record, it is necessary for the purpose of deciding the issue that DNA test is necessary or not. Only in such a situation that the court need to consider the request for conducting such a test. Hence, the contention raised by the parties are left open and the order impugned is set aside. The Court-below will consider such question regarding the necessity to direct any DNA test to be conducted only after the entire trial is over, whereupon it will be open to the petitioners to make any such request and the Court below will consider the entire circumstances and also the contention raised by the parties and pass appropriate orders, in the light of the above decisions of the Apex Court and what is indicated above,
11. It is submitted by the learned counsel for both sides that one of the witnesses in the case is partly examined. If that be so, the Court-below may proceed to include the case in the list and dispose of the same in accordance with law as expeditiously as possible.
C. R. P. is disposed of as above.