Karnataka High Court
Smt. Sangamma W/O Rajashekhar ... vs Rajashekhar S/O Ayyappa Tallikeri on 21 April, 2020
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 21st DAY OF APRIL 2020
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO.202882/2019 (GM-CPC)
BETWEEN:
Sangamma
W/o.Rajashekhar Tallikeri
C/o.Ramachandra Mallappa Banal
R/o.Vala Kaladinni
Post:Bisaldinni
Tq:Hunangud
Dist: Bagalkot.
... PETITIONER
(By Sri.Vinayak Apte, Advocate)
AND:
Rajashekhar
S/o.Ayyappa Tallikeri
Aged about 36 years,
Occ: Service
R/o.Hadalageri
Tq: Muddebihal
Dist: Vijayapura
Now R/o.Suggavi
Tq: Sirsi
Dist: Karwar-581 301
... RESPONDENT
(By Sri.Sandeep Vijaykumar, Advocate for C/R)
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This writ petition is filed under Articles 226 and 227 of
the Constitution of India praying to issue a writ in the nature
of certiorari thereby quashing the impugned order dated
13.06.2019 on I.A.No.VI as per Annexure-G passed in
M.C.No.14/2010 on the file of Senior Civil Judge and JMFC
at Muddebihal.
This writ petition having been heard and reserved for
orders on 06.02.2020, coming on for pronouncement of
orders this day, the Court made the following:
ORDER
The top noted writ petition is filed by the petitioner/wife questioning the order dated 13.06.2019 passed in M.C.No.14/2010 on I.A.No.6 filed under Order 26 Rule 10(A) r/w Section 151 of CPC.
2. The present controversy emerges from a petition filed by the respondent herein under Section 13(B) of the Hindu Marriage Act, 1955, wherein the respondent is seeking dissolution of marriage solemnized between petitioner/wife and respondent/husband on 16.05.1993.
3. The respondent/husband is seeking appointment of Court Commissioner for conducting 3 DNA test on child Sampath Kumar and himself. The respondent/husband has filed petition seeking dissolution of marriage on the ground that the petitioner/wife had been leading adulteress life. The said application was stoutly resisted by the present petitioner herein. The Court below having examined the rival contentions and also the submissions has proceeded to allow the application directing DNA test of child Sampath Kumar and the respondent herein.
4. Being aggrieved by the order of the Court below on I.A.No.6, the top noted writ petition is filed by the petitioner/wife.
5. The petitioner in support of her contention has raised several grounds in the top noted writ petition. Learned counsel for the petitioner assailing the correctness of the order under challenge would contend before this Court that the child Sampath Kumar was born on 21.05.2010 which is during the 4 subsistence of marriage and thereby relying on the law laid down by the Hon'ble Apex Court in the case of Goutam Kundu vs. State of West Bengal reported in 1993 (3) SCC 418, would urge this Court to set aside the order by contending that the respondent cannot have recourse to DNA test and as such test cannot rebut the presumption under Section 112 of Indian Evidence Act. Learned counsel for the petitioner to buttress his arguments has relied on the following judgments:
(i) Rajanaika vs. Umesh and Another reported in 2016 (1) KCCR 702
(ii) Shri Riyazahmed Abdulsattar Nagarchi vs. Kumari Shipa and Another reported in 2016 (1) KCCR 801
(iii) Sri Hanumappa vs. Yallakka and Others reported in 2014 (5) KCCR 1317
(iv) V. Anandappa vs. V. Shivaraju and Another reported in 2010 (5) KCCR 3992 5
(v) Smt. Harshitah @ Manjula vs. Sri S.Harish reported in 2014 (1) KCCR 641
6. Per contra, learned counsel for the respondent/husband would vehemently argue and support the order of the Court below and would submit to this Court that the present application is aimed at to establish the alleged adulteress of his wife and the issue of legitimacy of son is incidentally involved therein and in that view of the matter, Section 112 of the Indian Evidence Act would not be strictly attracted to the present case on hand. In support of his contention, he would rely on the judgment of the Hon'ble Apex Court rendered in Dipanwita Roy vs. Ronobroto Roy reported in (2015) 1 SCC 365.
7. Heard learned counsel for the petitioner and learned counsel for the respondent. Perused the pleadings of the parties and also the judgments relied thereon.
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8. This Court has gone through the judgments relied on by learned counsel for the petitioner. This Court is of the view that the ratio laid down in the above said judgments, has no applicability to the present set of facts. In all the above said judgments, the lis between the parties was purely in the nature of civil dispute. In Rajanaika's case, the son had filed a suit for partition and separate possession and after conclusion of trial, it was the plaintiff/son who moved an application under Section 45 r/w Section 56 of Evidence Act, 1872 to direct the defendant/father to give blood samples, which came to be rejected and was confirmed by this Court. This Court while dismissing the petition filed by the son was of the view that question of ordering a DNA would depend upon facts of each case. The second judgment cited by the petitioner reported in Riyazahmed was also a dispute arising out of declaratory suit seeking declaration that the defendant is not the daughter of the plaintiff. This 7 Court reiterating and fortifying the principles laid down by the Hon'ble Apex Court in Nandlal Wasudev Badwaik vs. Lata Nandlal Badwaik and Another reported in 2014 AIR SCW 506, disposed of the writ petition by holding that the blood test should not be ordered as matter of course. The third judgment cited by the petitioner reported in Hanumappa's case also relates to a lis arising out of a suit for partition and separate possession. This Hon'ble Court relying on several judgments of Hon'ble Apex Court concluded by holding that parties to civil suit cannot be subjected to DNA analysis as a matter of course. This Court in the above said judgment also held that in the event of Court directing the parties to have recourse to DNA test and if such a party refuses to submit himself for examination, the Court has a liberty to draw adverse inference against the party who is directed to undergo DNA test. Similarly in the last judgment cited by the petitioner in Anandappa's case, was arising out of a petition wherein 8 a minor son filed suit in O.S.No.189/2004 seeking a decree for maintenance. In the above said case, the father filed an application in I.A.No.12 seeking a direction to the parties to undergo DNA test. The said application was rejected which was questioned before this Court. This Court while examining the scope of having recourse to DNA test was of the view that there is a presumption in regard to legitimacy of child born during continuance of a valid marriage and accordingly, the writ was dismissed.
9. In all the above said judgments, on meticulous examination, it can be gathered that the controversy was in regard to proof of paternity and hence, the above cited judgments are not at all applicable to the present case on hand, whereas the judgment cited by the respondent/husband rendered in Dipanwita Roy by the learned counsel for the respondent is squarely applicable to the present case on hand.
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10. The Hon'ble Apex Court in Dipanwita Roy's case, having exhaustively dealt with in regard to controversy of securing a DNA report has dealt with the controversy. The Hon'ble Apex Court while dealing with the above said case was of the view that it was not the respondent husband's desire to prove the legitimacy or illegitimacy of the child born to the appellant in that case. The purpose of the respondent husband was to establish the ingredients of Section 13(1)(i) of Hindu Marriage Act, 1955. The prayer of husband for conducting DNA test was aimed at the alleged adulterous behaviour of wife and the issue of legitimacy of son was incidentally involved therein. The Hon'ble Apex Court was of the view that in such cases, Section 112 of Indian Evidence Act was not strictly applicable. The Hon'ble Apex Court was of the view that without DNA test, it would be impossible for husband to establish the infidelity of wife and the said test, which is most legitimate and scientifically perfect means could be 10 used by husband to establish his assertions of infidelity. The Hon'ble Apex Court was also of the view that simultaneously, the said test could also be used by the wife to rebut the assertions made by the husband and it is always open to the wife to establish that she had not been unfaithful, adulterous or disloyal. The DNA test would conclusively determine the veracity of accusation leveled against the wife by a husband.
11. All the judgments cited by the petitioner are to be examined in the light of the latest view taken by the Hon'ble Apex Court. The Hon'ble Apex Court in catena of judgments discouraged for directing the parties to undergo DNA test. Probably, the Hon'ble Apex Court was of the strict opinion in early 80's that DNA hampers the privacy between the parties to the marriage and as such, was not relied upon. The Hon'ble Apex Court was of the view that conclusive proof of legitimacy of a child born during the continuance of a valid marriage was significantly 11 analysed under Section 112 of Indian Evidence Act and was based on the maxim "paterest quem nuptiae demonstrant", meaning thereby "the father is he, whom the nuptials indicate".
12. But by passage of time, the Hon'ble Apex Court has taken note of the social implications in the present modern days. The earlier view was that it has to be discouraged and strong reason denying a party to have recourse to DNA test was that by allowing DNA test, the Courts were concerned about social implications post the reports on account of DNA test. The pinching issue was the blame of women's character. The Courts were bit reluctant and there was an impression that paternity test is one tool which is used by a man to exert pressure upon women. The problem then was with patriarchal system where the women had to go on proving the purity of her mind, body and soul. The Courts were also sensitive about ramifications of the reports since the allegation of adultery and 12 immorality often extended to denying the paternity of the child.
13. The Hon'ble Apex Court in Dipanwita Roy's case has finally taken a call on Section 112 of Indian Evidence Act. The Hon'ble Apex Court was of the view that though Section 112 raises a presumption of conclusive proof of conditions enumerated therein but the same is rebuttable. A presumption may afford legitimate means of arriving at an affirmative legal conclusion. While the truth or fact is known that there is no need or room for any presumption. Where there is evidence to the contrary, the presumption is rebuttable and must yield to proof. The interest of justice is best served by ascertaining the truth and the Court should be furnished with the best available science and need not to be left to bank upon presumptions, unless science has no answer to the facts in issue. The Hon'ble Apex Court in this background, has held that when there is a conflict between a conclusive proof envisaged 13 under law and a proof based on scientific advancement accepted by the world community to be correct, the latter must prevail over the former. This view of the Hon'ble Apex Court would also fortify the judgment of the Hon'ble Apex Court rendered in KAMTI DEVI & ANOTHER .VS. POSHIRAM [(2001) 5 SCC 311] wherein the Hon'ble Apex Court has held that DNA analysis is proven to be scientifically accurate.
14. In this background, this Court is of the view that law must apply itself to the life of society driven more and more by technology and technological improvements. Judges and Lawyers do not have the luxury of functional illiteracy in either of these two cultures (science and the humanities) and hence, if the husband's plea that he had no access to the wife when the child had begotten stands proved by the DNA test report, the father cannot be compelled to be a father of the child when the scientific reports prove to the contrary and hence, if the report goes in favour of the 14 father who is disputing the paternity, the Court cannot forestall the consequence. It is denying the truth.
"Truth must triumph" is the hallmark of justice.
15. In view of the proposition laid down by the Hon'ble Apex Court and in the facts and circumstances of the case, this Court is of the view that the order under challenge directing the present respondent/husband and child namely Sampath Kumar to undergo DNA test does not suffer from any infirmities and the same is in accordance with law and strictly in consonance with the ratio laid down by the Hon'ble Apex Court in the case of Dipanwita Roy.
16. The Hon'ble Apex Court while laying down proposition in Dipanwita Roy's case has also dealt with other contingencies i.e., if inspite of a court direction if the wife were to decline to comply with the court direction, in such circumstances, the Hon'ble Apex Court was of the view that the allegations would be 15 determined by the court concerned by drawing an adverse inference against her in terms of Section 114 Illustration (h) of Evidence Act. The Hon'ble Apex Court has held that in case wife accepts the court direction, in that event, the DNA test would conclusively determine the veracity of accusation leveled against her by the husband and by adopting such a course, the issue of infidelity alone would be determined without expressly disturbing the presumption contemplated under Section 112 of Evidence Act.
17. For the reasons stated supra, the writ petition is devoid of merits and the same is dismissed.
Sd/-
JUDGE CA