IMPORTANT POINT
DNA Test – It is not always necessary to conduct DNA test to ascertain whether a particular child was born to a particular person – It is burden of person who alleges or disputes paternity that he has not fathered child born to his wife.

ORDER (CAV)

The petitioner/3rd defendant is before this Court calling in question an order dated 05-04-2025 passed by the Senior Civil Judge & JMFC, Channarayapatna allowing the application filed by the plaintiffs under Order XXVI Rule 10A of the Civil Procedure Code in O.S.No.89 of 2016.

2. Heard Sri M. Vijay Krishna Bhat, learned counsel appearing for the petitioner and Sri M.Murali Babu, learned counsel appearing for respondent Nos.1 and 2.

Factual Canvas:

3. The petitioner is the 3rd defendant. Respondent Nos.1 and 2 who are plaintiffs 1 and 2 institute a suit for partition in O.S.No.89 of 2016. Defendants 1, 2, and 3 file their written statement. Issues are framed by the concerned Court on 11-01-2018. Evidence is led by the plaintiffs in the suit. Examination and cross-examination happen. On 07-09-2023, after completion of plaintiffs’ evidence, the present petitioner was examined as DW-1 and the matter was posted for his cross-examination. At that stage, the plaintiffs file the application under Order XXVI Rule 10A of the CPC seeking DNA test of defendants 1 and 3 to determine blood relation and paternity by way of scientific examination through an expert. The said application comes to be allowed by the concerned Court in terms of its order dated 05-04-2025, despite vehement objections of defendants 2 and 3. It is allowing the application that has driven the petitioner/3rd defendant to this Court in the subject petition.

Contentions:

Petitioner:

4. The learned counsel appearing for the petitioner contends that defendants 1 and 2 are husband and wife. They have several matrimonial proceedings between them. Defendant No.3 is born from the wedlock. Therefore, the plaintiffs cannot file an application questioning paternity of defendant No.3 when there is ample evidence to show that marriage had happened between defendants 1 and 2. The learned counsel further contends that the impugned order of permitting DNA test of the petitioner is violative of Articles 19 and 21 of the Constitution of India. It is his contention that as per Section 112 of the Indian Evidence Act, the plaintiffs have to plead and prove non-access of defendant No.1 to defendant No.2 at the relevant point in time. No such plea has ever been raised. Therefore, the order permitting DNA test ought not to have been granted by the concerned Court and above all, it is in violation of right to privacy of the petitioner.

Respondents:

5. On the converse, the learned counsel appearing for the respondent 1 and 2/plaintiffs would contend that pursuant to the order of the concerned Court, the DNA test has been conducted and a report is yet to be placed before the Court. It is at that stage the present petition is moved challenging the said order and therefore, it should not be entertained. It is his contention that defendant No.1 is said to have undergone vasectomy in the year 1979 and the child was allegedly born in the year 1986. He would, therefore, contend that the 3rd defendant is not the son of defendants 1 and 2. Hence DNA test, in the case at hand, was imperative. It is his submission that the children of defendant No.1 through his second wife/defendant No.2 is wanting to seek partition, though petitioner is a stranger to the family of the plaintiffs. In all, he would submit that there is no warrant of interference with the order passed by the concerned Court.

6. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.

Consideration:

7. The afore-narrated facts and the relationship between the parties are all a matter of record including the disputed ones. A suit for partition is instituted by the plaintiffs in O.S.No.89 of 2016. The issue in the lis is not with regard to the merit of the claim. The 3rd defendant who is also a claimant to the joint family property is said to have born from the wedlock of defendants 1 and 2. Long after the suit having progressed for over 8 years, an appl