DNA test is not an intervention in personal liberty.

(Civil Revision Petition filed under Article 227 of the Constitution of India against the fair and decreetal orders made in I.A.No.17 of 2003 in H.M.O.P.No.27 of 2002 on the file of the Sub Court, Cheyyar, Tiruvannamalai. )

Aggrieved over the fair and decreetal orders made in I.A.No.17 of 2003 in H.M.O.P.No.27 of 2002 on the file of the Sub Court, Cheyyar, Tiruvannamalai, this civil revision petition is filed.

2. Brief facts of the case are as follows:

The revision petitioner is the wife and the respondent is her husband. The respondent has filed H.M.O.P.No.27 of 2002 on the file of the Sub Court, Cheyyar, Tiruvannamalai for divorce on the ground of desertion under Section 13 of the Hindu Marriage Act. He has also filed an application in I.A. No. 17 of 2003 to subject the petitioner, respondent and the child for D.N.A. test to prove that the respondent was not the father of the child.

3. After contest, the application filed by the respondent has been allowed.

4. Aggrieved over the said order, the present civil revision petition is filed.

5. Mr.M.Sathyanarayanan, the learned counsel appearing for the revision petitioner would contend that during the subsistence of marriage and within 270 days after the dissolution of marriage as per Section 112 of the Indian Evidence Act, any person born, shall be conclusive proof that he is the legitimate son of that man.

6. Per contra, Mrs.Hemalatha, the learned counsel appearing for the respondent would contend that the marriage was not even consummated and the wife did not allow her husband to touch her and therefore, conclusive proof under Section 112 of Indian Evidence Act is not applicable.

7. As far as this case is concerned, in the divorce petition filed by the respondent, he has categorically stated that the marriage was not consummated and that the petitioner has not allowed him to touch her, but she became pregnant and a child was born.

8. Therefore, to assert as to whether the child was born to him or not, the respondent has filed the said petition to subject them for D.N.A. Test and the application was ordered. For the purpose of the test, he has also deposited a sum of Rs.10,000/- before court.

9. The learned counsel appearing for the revision petitioner has pressed into service a judgement reported in

2005-1-L.W.713 (Bommi and another vs. Munirathinam), wherein this court has held as follows:

"When the paternity of the child is challenged, there is nothing wrong in ordering the minor to undergo DNA 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--A fourteen years old girl cannot be described as incapacitated.

Genetic structure which may be discovered with the DNA 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.

Court has power to direct second plaintiff to undergo a DNA test, in order to ascertain the fatherhood of the second plaintiff, which would unfold the truth also."

10.A judgment reported in MANU/TN/3002/2006 (M.Dinesh Kumar vs. The Tamilnadu Dr.Ambedkar Government Law University, Chennai.) has also been pressed into service, wherein this Court has held as follows:

"4. In 2003(2) CTC 760 (Sharada v. Dharmpal), the Hon'ble Supreme Court case held, that no right to privacy is specially conferred under Article 21 of the Constitution of India and personal liberty under Article 21 cannot be held as an absolute right. Their Lordships have further held as follows:

71. The matter may be considered from another angle. In all such matrimonial cases, where divorce is sought, say on the ground of impotency, schizophrenia etc., normally without there being medical examination, it would be difficult to arrive at a conclusion as to whether the allegation made by his spouse against the other spouse seeking divorce