Madras High Court
P.K.Nagarajan @ Meenakshisundaram vs Mrs.N.Jeyarani on 18 September, 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 18.09.2014 Coram THE HONOURABLE MISS.JUSTICE V.M.VELUMANI C.R.P.(PD)(MD)No.2115 of 2013 and M.P.(MD).Nos.1 and 2 of 2013 P.K.Nagarajan @ Meenakshisundaram ... Petitioner vs. 1. Mrs.N.Jeyarani 2. Kamardeen ... Respondents PRAYER This Civil Revision Petition is filed under Article 227 of the Constitution of India, to set aside the order and decree passed by the Family Court, Madurai dated 22.08.2013 made in I.A.No.374 of 2011 in H.M.O.P.No.126 of 2009. !For Petitioner : Mr.D.Sadiq Raja ^For R1 : Mr.G.Prabhuraja Durai :ORDER
This Civil Revision Petition is filed to set aside the order and decree passed by the Family Court, Madurai dated 22.08.2013 made in I.A.No.374 of 2011 in H.M.O.P.No.126 of 2009.
2. The petitioner/husband filed H.M.O.P.No.126 of 2009 on the file of Family Court, Madurai against the first respondent/wife and second respondent for decree of divorce under Section 13(1) (i a) of Hindu Marriage Act, 1955 on the ground of adultery committed by the first respondent/wife with the second respondent.
3. According to the petitioner, the petitioner and the first respondent got married on 22.05.1988. In the wed lock, in the year 1996, male child was born and died immediately. The other two sons were born on 27.03.1997 and 29.06.1998. The petitioner, first respondent and two sons were living together till 2008 and they are separated in the year 2009. According to the petitioner, the first respondent had developed illicit relationship with second respondent from the year 1992. The petitioner found out the illicit relationship between the respondents and confronted. The first respondent on 20.10.2008, admitted her illicit relationship with the second respondent. She also stated that all the three sons were born only to second respondent and two sons, who are living are not the sons of petitioner. The first respondent left the matrimonial home along with two sons and she is living in the house of her parents from the year 2009 onwards. Under these circumstances, the petitioner has filed the above said H.M.O.P. for a judgment and decree of divorce dissolving the marriage solemnised between the petitioner and the first respondent. The petitioner filed an application in I.A.No.374 of 2011 in the H.M.O.P. to order for D.N.A Medical test for himself, first respondent and two children i.e., P.K.N.Karuppasamy and P.K.N.Jeyarajan, on the same allegation made in the H.M.O.P. The first respondent denied all the allegations made by the petitioner. She specifically denied that she is having illicit relationship with second respondent. On these pleadings, the learned Judge considered the issue and also judgments relied on by the counsel for parties, dismissed the application for D.N.A Medical test on 22.08.2013. Against the said order of dismissal, this Civil Revision Petition is filed.
4. Heard the learned counsel for the petitioner and the learned counsel for the first respondent.
5. Though notice was served on the second respondent and his name is printed in the cause list, he has not chosen to appear either in person or through the counsel.
6. The learned counsel for the petitioner has argued that the first respondent has admitted her illicit relationship with the second respondent; the father of the first respondent also encouraged the said relationship and the petitioner himself has seen the respondents in a compromising situation. The learned counsel for the petitioner also argued that the first respondent avoided having sexual relationship with the petitioner on one ground or other. Therefore, on the admission of first respondent herself it is just and necessary for D.N.A Medical test must be conducted to the petitioner, first respondent and two children. According to the petitioner, the learned Judge did not consider the case and law on these aspects and on erroneous consideration dismissed the application. The learned counsel for the petitioner has submitted that ordering medical test is necessary to arrive at the paternity of children and that will not cause any stigma on the children. The Courts can order medical test to arrive at a conclusion as to whether the allegations made by a spouse against other spouse seeking divorce on such a ground is correct or not. The learned counsel for the petitioner relied on a judgment reported in 2003 (2) CTC 760 (Sharda v. Dharmpal), wherein it has been held as follows:
"72. If for arriving at the satisfaction of the Court and to protect the right of a party to the lis who may otherwise be found to be incapable of protecting his own interest. The Court passes an appropriate order, the question of such action being violative of Article 21 of the Constitution of India would not arise. The Court having regard to Article 21 of the Constitution of India must also see to it that the right of a person to defend himself must be adequately protected.
73. It is, however, axiomatic that a Court shall not order a roving inquiry. It must have sufficient materials before it to enable it to exercise its discretion. Exercise of such discretion would be subjected to the supervisory jurisdiction of the High Court in terms of Section 115 of the Code of Civil Procedure and or Article 227 of the Constitution of India. Abuse of the discretionary power at the hands of a Court is not expected. The Court must arrive at a finding that the applicant has established a strong prima facie case before passing such an order."
7. In another judgment reported in 2009(3) CTC 672 (M.Karthika v. R.Manohar) this Court has held as follows:
21. Law on this subject has been set at rest by the above said Full Bench decision of the Honourable Supreme Court and there is no legal embargo for the Courts to direct the medical examination by the DNA test, while circumstances warrant. Presumption under Section 112 of the Indian Evidence Act requires to be rebutted by a strong piece of material evidence, which could be obtained from the outcome of the DNA test. The burden of proof is on the respondent, who alleges illegal legitimacy. He has to establish the fact which requires positive proof of negative plea that he has not fathered the Second child. This Court is of the considered view that circumstances necessitate issuing of directions for DNA test. Ordering DNA test would not in any way violative of Article 21 of the Constitution of India nor prejudice the individual of his right of privacy and the legal consequences of refusal to submit oneself for such examination would entail drawing of the adverse interference against that person.
8. In another judgment reported in 2011 (2) CTC 635 (Muniappan v. Ponni) it is stated as follows:
"17. As adverted to supra, as opined, that in a testamentary proceedings to prove paternity in the circumstances prevailing in the case, DNA Test would not be directed. But Their Lordships has laid down the principles on the basis of the directions in Goutam Kundu v. State of West Bengal and another, 1993 (3) SCC 418, that D.N.A. is not to be directed as a matter of routine and only in deserving cases as was noticed in Goutam Gundu's case, wherein the following are the directions given in the said case:
"26. (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 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 examined 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 of blood for analysis.
18. The Full Bench of the Apex Court in Sharda v. Dharmpal, 2003(2) CTC 760, differs from the Goutam Kuntu's case as far as the direction No.5 above that no one can be compelled to give sample of blood for analysis. In Sharda's case it has been held by the Apex Court that directing medical examination of a party to a matrimonial litigation cannot be held to be violative of one's right to privacy, so also is not in violation of right of personal liberty under Article 21 of the Constitution. In both the decisions of the Honourable Supreme Court, it has been consistently held that the party who seeks direction for conducting D.N.A. Test shall not be ordered as a matter of course. The Supreme Court has not put complete prohibition on the power of the Court to order for D.N.A. test. It is the view of the Supreme Court that as a routine practice, in all the cases such direction shall not be granted."
9. Per contra, the learned counsel for the first respondent contended that the first respondent at no point of time had illicit relationship with the second respondent and therefore, question of admitting her adulterous life does not arise. The two children were born only to the petitioner and she never stated that two children were born to the second respondent. The learned counsel for the first respondent pointed out that the petitioner had made the allegations after 21 years of marriage and disputing the paternity of two children after 16 years and 17 years of their birth. The petitioner has made wild, frivolous and vexatious allegations against the first respondent and there is no iota of proof for the same. The learned counsel for the first respondent pointed out that only when there is strong evidence about the adultery and doubt the paternity of child, D.N.A. medical test can be ordered. He also submitted that privacy of a child must be protected. For these principles, he relied on the order dated 10.04.2012 made in C.R.P.No.9221 of 2012 in P.R.Balaji vs. The Registrar of Birth and Death, Pandicherry Municipality, Pandicherry and in Kalyani v. Prabu reported in 2013 (2) MWN (Cr.) 398 it is stated as follows:
"9. Section 112 of the Evidence Act provides that the birth during the marriage is a conclusive proof of the legitimacy of a child. The presumption under Section 112 of the Evidence Act can be rebutted by evidence that the husband and wife had no access to each other at any time when the child could have been begotten. Such a evidence must be strong, distinct, clear, satisfactory and conclusive, as has been held by the Honourable Supreme Court in the decision reported in Goutam Gundu v. State of West Bengal and another, 1993 (3) SCC 418,"
and he also relied on a judgment reported in AIR 2005 Madras 106 (S.Thangavelu vs. S.Kannammal), wherein it is stated as follows:
6. It is true that in the HMOP., the respondent as R.W.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.
10. The learned counsel for the first respondent argued that ordering D.N.A Test will cause stigma on the children and they will be mentally and psychologically affected.
11. I have carefully perused the materials on record, judgments relied on by the learned counsel for the petitioner and the first respondent and heard the arguments. From the judgments relied on by the learned counsel for the petitioner and the first respondent, it is held by the Apex Court and this Court that when the parties are living together, the presumption is children were born in the wedlock. But it is open to the parties to rebut the said presumption through medical test. It is well settled that with advancement of scientific method it is possible to find out the paternity of a child. The Apex Court in the judgment reported in 1993 (3) SCC 418 (Goutam Kundu v. State of West Bengal and another) extracted by this Court in para 17 and 18 of the judgment reported in 2011 (2) CTC 635, has formulated the guidelines for ordering D.N.A. Medical test. These guidelines were followed by this Court, while considering the relief of ordering D.N.A Medical test. In the said judgment, it has been held that the blood test cannot be ordered as a matter of course, it cannot be ordered to have roving inquiry. The husband must establish strong prima facie case and he did not have access to the wife to dispel the presumption arising under Section 112 of Evidence Act. The fourth guideline is very important as it has been held that the Court must carefully examined whether consequence of ordering blood test will have the effect of branding a child as a bastard and the mother as an unchaste woman. The Apex Court has also held that no one can be compelled to give sample of blood for analysis. From the decisions referred to above, the Courts can order blood test only when strong and a prima facie case made out by husband.
12. In the present case, the petition has been filed after 13 years of birth of first child and 14 years of birth of second child. In the main petition, the petitioner has to prove by cogent and valid reasons the adulterous life of first respondent. By mere allegations of adultery and alleged admission by first respondent which has been denied by her in the counter statement in H.M.O.P. and counter affidavit in the I.A. for D.N.A Medical test, the petitioner is not entitled to the relief of D.N.A Medical test. From the materials on record, I am of the view that the petitioner has not made out any strong prima facie case to rebut the presumption as contemplated in Section 112 of the Evidence Act. Further, the petition has been filed after 14 years of birth of first child and 13 years of birth of second child, even though the petitioner alleges that first respondent is having illicit relationship from December 1992 onwards.
13. For the above reasons, I hold that the petitioner has not made out strong prima facie case for ordering D.N.A Medical test. The learned Judge has properly appreciated the facts of the case and the law on this aspect and dismissed the application. There is no material irregularity or illegality in the impugned order warranting interference by this Court.
14. In the result, the Civil Revision Petition is dismissed confirming the order of learned Judge. No costs. Consequently, the connected Miscellaneous Petitions are closed.
To The Family Court, Madurai.