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IN THE HIGH COURT OF JUDICATURE AT MADRAS
V. Bhavani Subbaroyan, J.
Minor Deivadharshini & Others – Petitioners
Versus
Vadivel – Respondent
C.R.P. No. 146 of 2021
Decided On : 11-08-2021
Constitution of India,1950 - Articles 227, 51-A(h) and (j) - Indian Evidence Act - Section 112 and 35 - Conclusive proof of legitimacy - Sought to proclaim their relationship - person was born during continuance of a valid marriage between his mother and any man, or within two hundred ad eighty days after its dissolution mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that parties to the marriage had no access to each other at any time when he could have been begotten - petitioners 1 to 3 were represented by their mother and natural guardian said Latha was living with the respondent herein as husband and wife, however, petitioners’ mother Latha, was married to one Murugesan, who was none other than the maternal uncle of Latha and the marriage was held mother, Latha, further claims that there has been no cohabitation between her and her husband, Murugesan. However, she continued to live with her husband and she had a relationship with respondent / 1st defendant, through said relationship, the petitioners were born - Murugesan, husband of Latha, had died after the death of the said Murugesan, Latha seems to have approached the respondent herein claiming that petitioners’, who are minors were born to him and sought to proclaim their relationship – Held, Courts in India cannot order blood test as a matter of course and such prayers cannot be granted to have roving inquiry; there must be strong prima facie case and the court must carefully examine as to what would be consequence of ordering the blood test. In Sharda while concluding that a matrimonial court has power to order a person to undergo a medical test, it was reiterated that the court should exercise such a power if the applicant has a strong prima facie case and there is sufficient material before Court. Obviously any order for DNA test can be given by the court only if a strong prima facie case is made out for such a course - legitimacy of child should be proved by establishing that there has been a valid marriage between the spouses and the children born out of the said wedlock are entitled to claim share in the suit properties and in this case, it is found that the petitioners, as such, are not entitled to claim any share in the suit properties, when there is no valid marriage at all much less between the parties - Court is of the opinion that the order made in I.A.No.359 of 2017 in O.S.No.12 of 2017 on the file of the learned – petition is dismissed
JUDGMENT :
(Prayer: Civil Revision Petition is filed under Article 227 of the Constitution of India, to set aside the Order and Decreetal Order in I.A.No.359 of 2017 in O.S.No.12 of 2017 dated 10.06.2020 on the file of Sub-Court, Palacode, Dharmapuri District is illegal.)
1. The present Revision Petition is filed under Article 227 of Constitution of India as against the order passed in I.A.No.359 of 2017 in O.S.No.12 of 2017 dated 10.06.2020.
2. The brief facts of the case is that the petitioners 1 to 3 were represented by their mother and natural guardian, namely, Latha. The said Latha was living with the respondent herein as husband and wife, however, the petitioners’ mother Latha, was married to one Murugesan, who was none other than the maternal uncle of Latha and the marriage was held on 10.02.1993. The said mother, Latha, further claims that there has been no cohabitation between her and her husband, Murugesan. However, she continued to live with her husband and she had a relationship with the respondent / 1st defendant, through the said relationship, the petitioners herein were born. The said Murugesan, husband of Latha, had died on 07.03.2014 after the death of the said Murugesan, Latha seems to have approached the respondent herein claiming that the petitioners’, who are minors were born to him and sought to proclaim their relationship.
3. In contrary, the respondent herein had denied the said allegations. When the suit schedule property belonging to the respondent herein was settled by him in favour of his wife, the 2nd defendant therein, the said Latha and the petitioners herein approached the court below by way of Original Suit as against the respondent herein and others claiming partition of the suit schedule property and declaration of settlement executed by the present respondent in favour of his wife, the 2nd defendant therein as null and void. Pending the suit, I.A.No.359 of 2017 was filed by the said Latha on behalf of the minors to subject the respondent herein for DNA test to prove the paternity of the biological father of the petitioners. However, the respondent denied the said allegation by filing necessary counter. The learned Sub Judge, Pallacode by order dated 10.06.2020 dismissed the application, as against which, the present Revision Petition is filed.
4. The learned counsel appearing for the petitioners would submit that the paternity of the children can only be established by way of subjecting the respondent for DNA Test and in the absence of such expert opinion, the paternity of the children, viz., the petitioners herein, cannot be established. Further, no prejudice would be caused to the respondent if he is subjected to DNA test and in contrary, the paternity of the petitioners herein will never be known and as such, since the mother herself has claimed that the children, namely, the petitioners herein were born through the relationship between her and the respondent herein, the question of denying of DNA test will not arise.
5. The learned counsel for the petitioners to substantiate the case of the petitioners has relied on the following Judgments:
(a) 1994 SCC (1) 460 [S.P.S.Balsubramanyam Vs. Suruttayan]
(b) Crl.A.Nos.2028-2029 of 2010 [D.Velusamy Vs. D.Patchaiammal]
(c) Fao(OS) No.547 of 2011 [Rohit Shekhar Vs. Narayan Dutt Tiwari & Another]
(d) (2012) 12 SCC 554 [Narayan Dutt Tiwari Vs. Rohit Shekhar and Another
6. Resisting the contentions of the petitioners, the learned counsel appearing for the respondent would submit that the onus of relationship, as alleged by the mother of the petitioners should only be established by the mother, as she has stated that being a marriage between her and the respondent herein, she should establish the same by way of material evidence. He would further submit that when that being a valid marriage between late Murugesan and the said Latha on 10.2.1993 and the minor petitioners being born thereafter, it should be presumed that the children were born only through their
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