Madras High Court
Muniappan vs Ponni on 10 December, 2010
Equivalent citations: AIR 2011 MADRAS 52, (2011) 2 RECCIVR 314, (2011) 1 MAD LW 26, (2011) 2 MARRILJ 708, (2011) 3 CURCC 77, (2011) 1 MAD LJ 949, (2011) 3 DMC 72
Author: S. Palanivelu
Bench: S. Palanivelu
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 10.12.2010 CORAM THE HONOURABLE MR. JUSTICE S. PALANIVELU C.R.P.(PD) No.1498 of 2009 and M.P.No.1 of 2009 Muniappan ... Petitioner Vs Ponni ... Respondent Civil Revision Petition filed under Article 227 of the Constitution of India, against the order of dismissal dated 21.4.2009 passed in I.A.No.147 of 2008 in M.O.P.No.34 of 2007 on the file of the Principal Subordinate Judge, Krishnagiri. For Petitioner : Mr.M.V. Krishnan For Respondent : Mr. Sanjay for Mr. V. Nicholas O R D E R
The petitioner is husband of the respondent. The petitioner filed M.O.P.No.34 of 2007 on the file of the Sub-Court, Krishnagiri under Section 13(i-a), 13(1)(i)(1)(i-b) of the Hindu Marriage Act 1955, for the relief of dissolution of Marriage. The respondent filed counter and is contesting the main petition. Pending the hearing of the petition, the petitioner filed I.A.No.147 of 2008 under Section 112 of the Indian Evidence Act, praying the Court to direct the blood test upon the second son of the respondent by name Krishnapragash to find out the biological father of the child. The following are the contentions contained in the petition:-
2.(a) In the Marriage Original Petition, the petitioner has clearly stated that the second child of the respondent viz., Krishnapragash's paternity is suspected by him. At the time of child begotten to the respondent, the petitioner did not have intercourse with her. He was staying at Bangalore, working as mason in a construction site. During the said period, the respondent left out of the petitioner's house and stayed with her parents' house due to quarrel between them. She left the conjugal home on 10.4.2004. She gave berth to a child, while she was staying in her parents' home. Even after the birth of her second child, the same was not communicated to the petitioner. The petitioner was working as construction labour at Bangalore from 12.4.2001 till 25.05.2002. During the entire period, the petitioner did not have any access with the respondent and the petitioner never had sexual intercourse with her during the entire period from 12.04.2001 to 20.5.2005 (as stated in the petition). During the said period he was staying at Bangalore only.
2.(b) During the said period, the respondent was having illicit relationship with one of her relatives in Madepalli village. The petitioner suspects that the paramour of the respondent is the father of the second son. Even now, the illicit relationship is continuing secretly. Due to respondent father's threatening the petitioner is unable to go to Madepalli. The respondent's father says that if the petitioner comes to Madepalli, he would kill him. The petitioner strongly suspects the paternity of the child and he is not the father of the child Krishnapragash. The legitimacy of the child has to be found out. The child was not born to the respondent during the subsistence of marriage. The above said conduct of adultery of the respondent can be proved only through blood test of the child and the petitioner. Then only it would be possible to find out the real father of the child. The petitioner is ready to incur the expenses for conducting the blood test and hence for conducting the medical blood test of the child and petitioner orders may be passed.
3. In the Counter, the following allegations are available:-
It is incorrect to to state that during the relevant period, the petitioner was living in Bangalore for construction work and that he was not having carnal intercourse with this respondent. The second son krishnapragash was born to the respondent through the petitioner. It is not true to state that from 12.4.2001 to 25.05.2002, he did not visit the respondent's house. The above said allegations are not alleged in the main petition. He used to come to the house late in the nights in an inebriated condition and picked up quarrel with her. Whenever the respondent reprimanded him, he had assaulted her. In order to conceal the facts, he has falsely alleging that she is living in adultery. To tarnish the image of this respondent, the petitioner has sought for D.N.A.test. Hence the petition may be dismissed.
4. After hearing both sides, the learned Sub-Judge, has dismissed the application by observing that the petitioner has not stated on what date second son was born and there is no dispute that he married the respondent and the marriage is still subsisting, the respondent cannot be compelled to subject herself to blood test, since it will amount to interference with her fundamental rights . This is the order, challenged before this Court.
6. Mr.M.V. Krishnan, the learned counsel for the petitioner, would contend that, direction to conduct D.N.A. test is not violative of Article 21 of the Constitution of India, that the direction will not affect the right of privacy of any individual that it is the settled position, that D.N.A. Test cannot be ordered as routine in all the cases and that under exceptional circumstances, such test may be ordered and that the petitioner has made out a prima facie case for issuing direction for such test.
7.Contending contra, the learned counsel for the respondent Mr. Sanjay, would submit that D.N.A. Test is not conclusive one, that even though the test report is received, still the presumption under Section 112 of the Evidence Act, has to be rebutted by the person who pleads that there was no relationship between the spouses, that there is no ground made out by the petitioner for ordering D.N.A. Test and that there is no need for interference with the order of the Court below.
8.In support of his contention, the learned counsel for the petitioner very much relied upon a Full bench decision of the Honourable Supreme Court in 2003 (2) CTC 760 [Sharda v. Dharmpal] in which Their Lordships have referred to numerous decisions on the subject rendered by the Apex Court and other High Courts, including this Court and the English cases with particular reference to a decision in 1993 (3) SCC 418 = 1993 SCC (Cri) 928 [Goutam Kundu v. State of West Bengal and Another] wherein Their Lordships have expressed the view that direction to conduct D.N.A.test is not in violation of the right to personal liberty under Article 21 of the Constitution and despite the order of the Court if anybody refuses to undergo such test, the Court can draw adverse inference against him, which would be legal consequence of such refusal.
9.I have followed the above said decision in Sarada's Case in my judgment reported in 2009(2) CLT 460 = 2009 (3) CTC 672 [M. Karthika v. R. Manohar] wherein I have extracted the operative portion of the judgment which is as follows:-
16. ... ... ... The Full Bench of the Supreme Court has taken a different view from the one in Gautum Kundu's case, in its latter decision reported in Sharda v. Dharmpal reported in 2003 (2) CTC 760.
17. In the said decision, the Apex Court also referred to Gautum Kundu's case and expressed a converse opinion in the matter of directing the blood test and concluded that such directions should normally be made in the better future of the child. The relevant portion is as follows:
"36. Gautum Kundu, (supra), is, therefore, not an authority for the proposition that under no circumstances the Court can direct that blood tests be conducted. It having regard to the future of the child, has, of course, sounded a note of caution as regard mechanical passing of such order. In some other jurisdictions, it has been held that such directions should ordinarily be made if it is in the interest of the child."
18. In the above reported judgment, Their Lordships, have elaborately dealt with the subject, after referring to various earlier decisions of the Supreme Court and other High Courts and also the English Law as well on the subject, besides medical jurisprudence on the point, touching the ambit of the intention of the legislature, while enacting Article 21 of the Constitution of India as to the personal liberty and the right of privacy of a person and formulated following principles as follows:
"75. So viewed, the implicit power of a Court to direct medical examination of a party to a matrimonial litigation in a case of this nature cannot be held to be violative of one's right of privacy.
To sum up, our conclusions are:
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."
19. Their Lordships also strike a note of caution about the legal consequences of refusal to submit oneself for such medical examination in the following terms:
"If despite an order passed by the Court, a person refuse to submit himself to such medical examination, a strong case for drawing an adverse inference would be made out. S.114 of the Indian Evidence Act also enables a Court to draw an adverse inference if the party does not produce the relevant evidence in his power and possession." "
10. The learned counsel for the petitioner also garnered support from another decision of the Apex Court in (1999) 7 SCC 675 [Dwarika Prasad Satpathy v. Bidyut Prava Dixit and Another] wherein in a matrimonial case, in a hearing before the Supreme Court, the 1st respondent was prepared to have D.N.A.Test for finding out the father of the child, at that stage, the learned counsel for the appellant sought time for four (4) weeks to get instructions from the appellant and thereafter when the matter was placed for hearing on 20.8.1999, the learned counsel for the appellant stated that he was not willing to undergo D.N.A.test, therefore, the Supreme Court ordered that "this means appellant is disentitled to dispute the paternity of the child. This is recorded."
11.From the above said decision the Supreme Court has recorded the observations drawing adverse inference against the husband as a consequence of refusal to undergo D.N.A.Test.
12.This Court, in the decisions in 2005(1) L.W.713 [Bommi and another v. Munirathinam] and 2007 (3) L.W. 815 [Neerkathalinga Pandian v. Mrs.Komala and another] has followed the decisions of the Supreme Court in Sarada's case. In a Division Bench decision of Kerala High Court in AIR 2006 Kerala 191 [Joseph & etc., v. State of Kerala & Ors.] it is held that though D.N.A. Test cannot be ordered as matter of course in every case, it is permissible in exceptional case.
13.The learned counsel for the respondent placed reliance upon a decision of the Supreme Court in 2001 (5) SCC 311 [Kamti Devi (smt) and another v. Poshi Ram] wherein it is held that conclusiveness of presumption under Section 112 of Evidence Act cannot be rebutted by D.N.A. Test and proof of non-access to each other is only way to rebut that presumption. The following is the relevant portion of the judgment:-
"10.We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancements with Dioxy Nucleic Acid (DNA) as well as Ribonucleic Acid (RNA) tests were not even in contemplation of the legislature. The result of a genuine DNA test is said to be scientifically accurate. But even that is not enough to escape from the conclusiveness 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. Hence the question regarding the degree of proof of non-access for rebutting the conclusiveness must be answered in the light of what is meant by access or non-access as delineated above."
14. Much reliance was placed upon by the learned counsel for the respondent in a decision the Supreme Court in 2005 (4) SCC 449 [Banarsi Dass v. Teeku Dutta (Mrs) and Another]. In the said decision, Kamti Devi's case (supra) has been referred. The following is the material portion in the judgment:-
"14. ... ... ... The trial court erroneously held that the documents produced by the respondents were not sufficient or relevant for the purpose of adjudication and DNA test was conclusive. This is not a correct view. It is for the parties to place evidence in support of their respective claims and establish their stands. DNA test is not to be directed as a matter of routine and only in deserving cases such a direction can be given, as was noted in Goutam Kundu's case (supra). Present case does not fall to that category. High Court's judgment does not suffer from any infirmity."
15.In the above said case, it was found by the High Court, that it was not a fit case where such a direction could be given. The Supreme Court has observed therein that it was noticed that the scope of enquiry was very limited and the trial Court being a testamentary Court should have left the parties to prove their respective cases by such evidence produced during trial, rather than creating evidence by directing DNA test.
16.In the above said case, the facts of the case go to the effect that the objector B alleged that Mrs. T was not daughter of the deceased, but she is the daughter of R and since the deceased and his wife both were dead who are parents of Mrs.T, it would not be possible to subject them to a DNA Test and compare with the D.N.A. test of Mrs.T, since R is alive D.N.A. Test of R and Mrs.T would conclusively establish the paternity of Mrs.T. The Trial Court allowed the application. But the High Court was of the opinion that it is not a fit case for directing D.N.A. test. That order was confirmed by the Supreme Court in Banarsi Dass Case.
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 principle on the basis of the directions in Goutam Kundu's case, 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's case 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.
19.As far as the facts of the present case are concerned, the petitioner has made out a prima facie case. He has alleged that between 12.04.2001 and 25.5.2002 he had been away at Banagalore and he has not visited the respondents house. Hence, there is no impediment to pass an order for D.N.A. test in this case. In such a view of this matter, this Court has to interfere with the order passed by the Court below, which is liable to be set aside and it is accordingly set aside. The revision deserves to be allowed.
20.In fine, the Civil Revision Petition is allowed. I.A.No.147 of 2008 in M.O.P.No.34 of 2007 on the file of the Principal Sub-Court, Krishnagiri is allowed. No costs. Connected M.P. is closed.
ggs To The Principal Subordinate Judge, Krishnagiri