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2019 Supreme(Mad) 2820
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
N. ANAND VENKATESH, J.
Thamarai Selvi – Petitioner
Versus
Govindaraj – Respondent
CRP(PD)(MD)NO.1148 OF 2012 and M.P(MD)No.1 of 2012
Decided On : 27-09-2019
For the Petitioner: Mr. E. Balasubramanian
For the Respondent: Mr. D. Ramesh Kumar
Headnote:
Constitution of India,1950 - Article 227 Indian Evidence Act - Section 112 - Pendency of appeal - Case Petitioner based his claim - Petition came to be dismissed by judgment and decree - Aggrieved by same respondent filed an appeal in before Additional District and Sessions Judge which during pendency of the appeal respondent filed an application send Petitioner respondent and the child to undergo DNA Test in order to ascertain paternity of the child - Court below has allowed this Petition on ground that Petitioner lived with the respondent only for three months (three days as per Petition - Therefore Court below came to a conclusion that Petitioner could have lived with the respondent only till child was born - There is no material to show that there was contact between Petitioner and respondent after and therefore DNA test will have to be taken in order to ascertain the paternity of the child –Held, Case was born on and if this is to happen Petitioner should have conceived during -There is absolutely nothing to show that there was access between parties during only ground that has been raised by Petitioner that respondent came to her house and had sexual intercourse - Court below in order give a final conclusion with regard to this dispute wanted to send parties for a DNA test - Report in the DNA test will conclusively prove the paternity of the child - It is the main issue that has be decided even in the divorce proceedings - Court below has said that there no compulsion for Petitioner undergo DNA test and she refused go for DNA test Court below has that an adverse inference can be drawn against her - Court which has categorically held that Court must be furnished with best available evidence and it should not be made to decide case based on presumption - When science is providing for an answer it should be made use of by Court when there is conflict between conclusive proof envisaged under law and proof based on scientific advancement - This Court does not find any irregularity or infirmity in order passed by the Court below and Court below has given cogent reasons for allowing Petition - It left open to Petitioner to subject herself to DNA test or not to go for DNA test - Petitioner cannot be compelled and at same time if she does not undergo DNA test an adverse inference can be drawn by trial Court - Petition dismissed
ORDER :
PRAYER: Civil Revision Petition filed under Article 227 of the Constitution of India, praying this Court to set aside the order made in I.A.No.113 of 2011 against C.M.A.No.6 of 2011, dated 9.1.2012, on the file of the Fast Track Court, Pudukkottai.
1. This Civil Revision Petition has been filed challenging the order passed by the Court below allowing the application filed under Section 45 of the Indian Evidence Act to send the Petitioner, respondent and the child to under go DNA Test to ascertain the paternity of the child.
2. The respondent filed H.M.O.P.No.188 of 2007 before Sub-Court, Pudukkottai seeking for divorce on the ground of cruelty. This Petition came to be dismissed by judgment and decree, dated 1.3.2010. Aggrieved by the same, the respondent filed an appeal in C.M.A.No.6 of 2011 before the Additional District and Sessions Judge, Pudukkottai (FTC), in which, during the pendency of the appeal, the respondent filed an application in I.A.No.113 of 2011 to send the Petitioner, respondent and the child to undergo DNA Test in order to ascertain the paternity of the child.
3. The Court below has allowed this Petition on the ground that the Petitioner lived with the respondent only for three months (three days as per Petition).Therefore, the Court below came to a conclusion that the Petitioner could have lived with the respondent only till December 2005. The child was born on 13.12.2006. There is no material to show that there was contact between the Petitioner and the respondent after December 2005 and therefore, the DNA test will have to be taken in order to ascertain the paternity of the child.
4. The learned counsel for the Petitioner submitted that the Trial Court had disbelieved the contention raised by the respondent that the child was not born to him, based on the evidence and that there cannot be a reference by the appellate Court by compelling the Petitioner to undergo DNA test along with the child. The learned counsel further submitted that the subsistence of a marriage is a conclusive proof under Section 112 of the Indian Evidence Act that the child was born to the Petitioner and respondent and this conclusive proof cannot be re-opened by allowing for a DNA test.
5. The learned counsel for the respondent submitted that it is the specific case of the respondent that the Petitioner had an illegal intimacy with another person and the child was not born for the Petitioner and respondent. Therefore, it is necessary for all the parties to undergo DNA Test in order to ascertain the paternity of the child. The learned counsel in order to substantiate his arguments relied upon the decision of the Honourable Supreme Court in Nandlal Wasudeo Badwaik .vs.lata Nandlal Badwaik and another reported in AIR 2014 Supreme Court 932.
6. This Court has carefully considered the submissions made on either side and perused the materials available on record.
7. Section 112 of the Indian Evidence Act provides for a conclusive proof of legitimacy of the child. It requires to be established by the parties that they had no access to each other at any time whereby the wife could have begotten a child. Hence the Court must be thoroughly satisfied that the parties to the marriage did not have any access to each other during the crucial period of 280 days, as provided under Section 112 of the Indian Evidence Act. Unless this important fact is satisfied before the Court, the parties cannot be subjected to DNA test.
8. It will be relevant to take note of the judgement cited by the learned counsel for the respondent in this regard. The Honourable Supreme Court in Nandlal Wasudeo Badwaik .vs.lata Nandlal Badwaik and another reported in AIR 2014 Supreme Court 932, has held as follows:
''17.We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancement and DNA test were not even in contemplation of the Legislature. The result of DNA test is said to be scientifically accurate. Although Section 112
