When Marriage Itself is Disputed, DNA test to Check the Legitimacy of Child Before Passing Maintenance Award can be Demanded and Should be Allowed
Court:MADRAS HIGH COURT
Bench: JUSTICE M. Thanikachalam
BOMMI & ANR. Vs. MUNIRATHINAM Decided on 28 July 2004
Law Point:
When Marriage Itself is Disputed, DNA test to Check the Legitimacy of Child Before Passing Maintenance Award can be Demanded and Should be Allowed.
JUDGEMENT
The plaintiffs in O.S. No. 202 of 2001 on the file of the Principal District Munsif Court, Arni are the revision petitioners.
2. The revision petitioners as plaintiffs have filed the suit against the respondent herein, showing him as defendant, for maintenance. The first plaintiff claims that she is the legally wedded wife of the defendant and their marriage has been solemnised, according to the Hindu custom and rites, in the presence of the elders, on 17.10.1985. It is the further case of the revision petitioners, that the second plaintiff, by name Sonia (minor) is the child born to the first plaintiff and the defendant, due to their joint living as husband and wife, in pursuance of the above said marriage.
3. The plaintiffs and defendant are not living jointly. The plaintiffs are the residents of Ambedkar Nagar, Arni Town, Thiruvannamalai District. The defendant is living at Arakonam Railway Quarters, since it appears he is employed in the Railways. The plaintiffs/revision petitioners accusing the respondent/ defendant, as if he had deserted the wife and child about 12 years ago, failed to provide maintenance, despite having means, whereas they have no means of their own, for survival, have filed the suit for recovery of a sum of Rs. 1,000/- as maintenance, for the first plaintiff /wife and for the recovery of a sum of Rs. 500 per month, towards maintenance of the second plaintiff/daughter, in addition praying for a charge to be created over the properties described in the plaint, which belong to the respondent/defendant.
4. The suit is opposed by the respondent/defendant contending, that there was no marriage between the first plaintiff and the defendant, that the second plaintiff is not the daughter of the defendant, born through the first plaintiff, that elsewhere in 1986, for some time, there was some illegal relationship between the first plaintiff and the defendant and that at present the defendant is married to another lady and, as such, he is not bound to maintain or provide maintenance to the plaintiffs legally.
5. In the written statement itself the defendant has stated he is ready to undergo for D.N.A. test, to ascertain the paternity of the second plaintiff. When the trial was in progress, after examining witnesses also, the defendant filed a petition under Order 26 Rule 10(a) read with Section 151 of CP.C, seeking direction from the Court, to test the D.N.A. of the defendant and the second plaintiff, in order to ascertain the paternity of the second plaintiff. The application was opposed mainly on the ground, that the petition was filed belatedly, after the examination of the witnesses and that in view of the presumption available under Section 112 of the Indian Evidence Act, there is no need to undergo D.N.A. test, as claimed.
6. The learned District Munsif, appreciating the rival claims of the parties, as well as the pleadings in the plaint and the written statement, felt that if D.N.A. test is performed, that will be much helpful to decide the paternity of the second plaintiff. In this view, the learned Trial Judge allowed the application on 9.4.2003, which is challenged in this revision.
7. Heard the learned Counsel for the petitioners, Mr. V. Raghavachari and the learned Counsel for the respondent, Mr. P. Valliappan.
8. The learned Counsel for the revision petitioners submits—
(i) that in view of the presumption available under the Indian Evidence Act, D.N.A. test is not at all necessary, to decide the paternity of the second plaintiff, which could be decided on the basis of the evidence already recorded.
(ii) that a minor child cannot be compelled to (undergo) D.N.A. test and put to torture by giving blood, under the cover of D.N.A. test, which is protected under the Constitution of India also.
9. Opposing the above contentions, the learned Counsel for the respondent submits, that the presumption contemplated under Section 112 of the Indian Evidence Act, is not available to the second plaintiff in this case, since the alleged marriage between the first plaintiff and the defendant is seriously disputed. Admittedly, for the past more than 12 years or so, the plaintiffs and the defendants are not living under the same roof and in this way, there is no access. Therefore, the learned Counsel for the defendant further submits, that in view of the admitted separate living and denial of marriage, the presumption contemplated under Section 112 of the Indian Evidence Act, could not be invoked. In this view, he submits that if the defendant’s blood and the second plaintiff’s blood are tested scientifically for D.N.A., certainly that would enlighten about the paternity of the second plaintiff and in case the D.N.A. is positive, the second plaintiff in fact would stand benefited, legitimising her birth also, making sure who is the father. The learned Counsel further submits, by ordering D.N.A. test, no prejudice would be caused to anybody, that too, at present considering the scientific accuracy of D.N.A. test.
10. There is no provision either in Hindu Marriage Act or in Indian Evidence Act or in any other law, empowering the Court, to issue a direction, upon a party to a matrimonial proceeding or in any other proceeding, to compel them to submit to blood test. Therefore, the learned Counsel for the revision petitioners would submit, that in the absence of specific provision under law, directing the second plaintiff to undergo medical examination or to give blood for analysis, is against the law and in support of the above contention, he relied on certain rulings also.
11. In Polavarapu Venkateswarlu v. Polavarapu Subbaya, (1951) 1 MLJ 580, this Court had taken the view as follows—
“There is no procedure either in Civil Procedure Code of the Evidence Act which provides for a blood test being made of a minor and his mother when the father is disputing the legitimacy of the minor. If parties are unwilling to submit to such a test the Court has no power to direct them to submit themselves to such a test.”
thereby concluding even Section 115, C.P.C. could not be invoked, which was introduced to give effect to the inherit (inherent?) power of Courts. Once again, this Court in K. Aiyar v. Govindaswami, AIR 1966 Mad. 443, relying upon the above decision as well as other decisions, had come to the conclusion, in an election petition case, that election Court has no power to order compulsory medical examination of a person, alleged to be suffering from leprosy. It is observed—
“There is no warrant in the procedure now obtaining in the Civil Courts and the Civil Courts under the Civil Procedure Code, for an order for compulsory medical examination of a party against the wish of the party.”
In N. Venkatachalapathy v. Saroja, AIR 1981 Mad. 349, this Court reaffirmed the same view.
12. In Smt. Ningamma v. Chikkaiah, AIR 2000 Kar. 50, the Karnataka High Court, placing reliance upon a Supreme Court ruling, took the view, that a person cannot be compelled to submit himself to blood test, since it will amount to interference with man’s personal fundamental right to life, wherein it is held as follows:
“To compel a person to undergo or to submit himself or herself to medical examination of his or her blood test or the like without his consent or against his wish tantamounts to interference with his fundamental right of life or liberty particularly even where there is no provision either in the Code of Civil Procedure or the Evidence Act or any other law which may be said to authorise the Court to compel a person to undergo such a medical test as blood group test or the like against his wish, and to create doubt about the chastity of a woman or create doubt about the man’s paternity will amount to nothing but interference with the right of personal liberty.”
13. On the basis of the ratio laid down in the above rulings, the learned Counsel for the revision petitioners submits that the order of the Trial Court, directing D.N.A. test, is against law. In view of the progressive march of law and the fast technology advancement and development in scientific field, as well as considering the latest decisions of the Apex Court also, I feel the above rulings fail to come to the aid of the revision petitioners, as of right, to set aside the order of the Trial Court.
14. The second plaintiff /second revision petitioner is a minor girl aged about 14 years. As rightly submitted by the learned Counsel for the revision petitioners, a child or a minor is entitled to all kinds of protection in the hands of the Court and there cannot be any second opinion also. But, when the paternity of the child is challenged, I feel there is nothing wrong in ordering the minor to undergo D.N.A. test or to give blood, for analysis. Mere giving blood for analysis certainly will not amount to torture, as contended by the learned Counsel for the revision petitioners. A14 years old girl cannot be described as incapacitated under the prevailing circumstances, since her right is not going to be affected in any way. The only person on earth who can vouchsafe as to who is the father of a child is the mother, and none else. Hence, the admitted mother of the second plaintiff viz., the first plaintiff asserts that she gave birth to this girl, through the defendant/respondent. If it is true, there need be no apprehension in the mind of the mother, to undergo D.N.A. test. In fact in this case, if D.N.A. test is conducted, ends in favour of the second plaintiff, making true the case of the mother, then the minor girl would stand benefited, and even she can go to the extent of claiming share in the properties of the father. In this view, I think ordering D.N.A. would solve not only the present problems, but also the future problems, if any arises.
15. As seen from the pleading in the plaint, though the first plaintiff has stated that the second plaintiff is the daughter born to her, through the defendant, she has not given the exact date of birth of the child also, to coincide with the joint living of the defendant with the first plaintiff, whether it is legal or illegal. Paragraph 4 of the plaint says, that the first plaintiff gave birth to a female child, in pursuance of the marriage took place on 17.10.1985. failing to enlighten the Court, on what date, where she begotten the second plaintiff, etc. Paragraph 7 of the plaint says, that the defendant/respondent abandoned or deserted, as the case may be, the plaintiffs, for the past more than 12 years. If we read these two paragraphs together, a doubt would arise naturally in the minds of the Court, whether the second plaintiff was born to the first plaintiff when the defendant had access with her, since in this case, the marriage itself is denied. However, the defendant in his written statement had admitted, that he had some connection with the first plaintiff, whether legal or illegal, which should be decided at the time of the suit. In case, during that time, if the first plaintiff had conceived and gave birth, the gene of the second plaintiff may suit with the gene of the defendant and for that purpose alone, D.N.A. is contemplated in this case. By looking the case from this angel also, I feel directing the parties to undergo D.N.A. may not be prejudicial to anybody and in fact, it is beneficial to both.
16. The Evidence Act came into field in the year 1872, when there was no appreciable development or progress in the scientific field, especially to find out the classification of genes, its effect and co-relation of the same with genetically identical person. Now the medical field is very much advanced and by having blood alone, the entire body system could be scanned to detect the defect. D.N.A. technology comes in handy as a latest tool of forensic science, emanating from genetic science.
17. The genetic science established the belief that the pattern of chemical signals i.e., the genetic structure which may be discovered with the D.N.A. molecule in the cells of each individual, is unique and different in every individual. This new accurate technology should be made available to the Court, in order to determine paternity or maternity disputes, to reach a correct conclusion, regarding succession cases, maintenance proceedings, matrimonial disputes, etc. In case of disputed paternity of a child, mere comparison of D.N.A. obtained from the body fluid or body tissues of the child with his father and mother can offer infallible evidence of biological parentage. Even D.N.A. testing may be used to rebut the statutory presumption arising under the Act, is available, or to establish evidence, where no presumption arises, as in the case, since, marriage is disputed. No other evidence of corroboration may be required, if the medical examination is conducted properly, taking proper sampling of body fluids followed by quality forensic examination.
18. In view of the established scientific fact, D.N.A. parentage testing may provide evidence to show that a person has a biological connection with a person and can be a proof in support of a maintenance claim. That is why the Apex Court has also observed, that the result of a genuine D.N.A. test is said to be scientifically accurate. Instead of relying upon the presumption under Section 112 of the Indian Evidence Act alone, which is also not conclusively available in this case, the alternative remedy to decide the paternity must be the D.N.A. test to adapt ourselves to new scientific technology, we should not hesitate, depending upon only the conservative form of evidence.
19. In Dwarka Prasad Satpathay v. Bidyut Prava Dixit, VIII (1999) SLT 508=IV (1999) CCR 161 (SC)=1999 (4) RCR (Cr.) 577 (SC), which had arisen under Section 125 of C.P.C. for maintenance, the Apex Court has held, that a person, who refuses to undergo D.N.A. test, is disentitled to dispute the paternity of the child. In the case involved in the above decision, the husband challenged the maintenance order, as if he is not the father of the child. When the case was pending before the Apex Court, it seems, it was represented on behalf of the husband, that he was willing to have a D.N.A. test, for finding out the fatherhood of the child. When the case was adjourned to ascertain, whether the alleged father was not willing to undergo a D.N.A. test. Under the above said circumstances, the Apex Court has ordered: “This means appellant is disentitled to dispute the paternity of the child. This is recorded”. This case would suggest, that D.N.A. test is reliable and child could to fested, to ascertain the fatherhood of the child.
20. Considering the appreciable improvement in the medical science, the result of a genuine D.N.A. test is said to be scientifically accurate, as observed by the Apex Court in Smt. Kamti Devi v. Poshi Ram,, I (2001) DMC 763 (SC)=IV (2001) SLT 120=AIR 2001 SC 2226. In this case, the Apex Court considering Section 112 of the Indian Evidence Act, as well as the fact that a child was born during the subsistence of a valid marriage, took the view, that the conclusive presumption that a child is of the husband, which is available under Section 112 of the Evidence Act, cannot be rebutted by D.N.A. Test. As aforementioned, in the case on hand, the marriage is in dispute, thereby showing that there is no case between the parties, that the child born during he subsistence of a valid marriage. When the marriage itself is in dispute, from the alleged, question of raising presumption under Section 112 of the Indian Evidence Act in favour of a child, may not arise for consideration.
21. For the contention of the learned Counsel for the revision petitioners, that no one could be compelled to give sample of blood, for analysis, an answer is available. In the Apex Courts decision in Sharada v. Dharmpal, I (2003) DMC 627 (SC)=III (2003) SLT 1=2003 (2) RCR (Civ.) 795 (SC), where Gautam Kundu v. State of West Bengal and Another, II (1993) DMC 162 (SC)=(1993) 3 SCC 418, was referred. The Apex Court, considering the constitutional rights available to a person, as well as the provisions of Section 112 of the Indian Evidence Act, has held at paragraph 36 as follows:
“Goutam Kundu, is, therefore, not an authority for the proposition that under no circumstances the Court cand direct that blood tests be conducted. It having regard to the future of the child, has, of course, sounded a notice 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.”
22. The absence of any specific provision under any Act, to issue a direction for the blood test is also answered by the Apex Court, which reads at paragraph-48, as follows :
“Furthermore, the Court must be held to have the requisite power even under Section 151 of Code of Civil Procedure to issue such direction either suo motu or otherwise which, according to him, would lead to the truth.”
The Apex Court anyalsing the previous rulings, as well as the law prevailing in England under Family Law Reforms Act, 1987 has ruled at paragraph 48, as follows:
“A matrimonial Court has the power to order a person to undergo medical test.
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.
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.”
The question of privacy also was considered by the Apex Court, wherein it is ruled—
“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.”
23. On the basis of the above decision, it should be held, that the Court is within its power to direct the second plaintiff to undergo a D.N.A. test, in order to ascertain the fatherhood of the second plaintiff, which would unfold the truth also. As aforementioned, it will be for the benefit of the minor child. Considering the facts and circumstances of the case, though the Trial Court has not considered all these things in detail, has rightly come to the conclusion, that a D.N.A. test could be ordered and I do not find any reason to interfere with the said finding. For the foregoing reasons, the revision is devoid of merits, deserving dismissal.
In the result, the revision petition is dismissed. No costs.
Petition dismissed.