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2022 Supreme(Telangana) 139
IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD
A. VENKATESHWARA REDDY, J.
Gajjela Veeraswamy – Petitioner
Versus
Gajjela Nagaraju – Respondent
CRP No. 2479 of 2019
Decided On : 02-03-2022
Advocate Appeared:
For the Petitioner: Tangeda Dayananda Rao.
For the Respondent: Danam Renuka.
Forcing a party to undergo a DNA test against their consent impinges on personal liberty and right to privacy.
Headnote:
DNA Test - Paternity Dispute - Indian Evidence Act, 1872, Section 45(6); Civil Procedure Code, 1908, Section 151 - Section 112 of Evidence Act discussed - Court held that the plaintiff cannot compel the first defendant to undergo DNA test against his consent, as it impinges on personal liberty and right to privacy. The impugned order was set aside based on the principles laid by the Hon’ble Supreme Court in Ashok Kumar vs. Raj Gupta and Others, 2021 Law Suit (SC) 596 and the High Court of Andhra Pradesh in Medida Veeraiah @ Veera Reddy and Others vs. Medida Vijaya Narasimha Rao and Others, 2019 (2) ALD 160.
Fact of the Case:
The plaintiff filed a suit for partition and separate possession, claiming 1/8th share of the retirement benefits of the first defendant. The plaintiff sought a DNA test to ascertain paternity, which was allowed by the trial court. The first defendant challenged this order through a civil revision petition.
Finding of the Court:
The court found that compelling the first defendant to undergo a DNA test against his consent impinges on personal liberty and right to privacy. The impugned order was set aside based on legal principles established by the Hon’ble Supreme Court and the High Court of Andhra Pradesh.
Issues: The main issue was whether the plaintiff could compel the first defendant to undergo a DNA test against his consent in a paternity dispute.
Ratio Decidendi: The court held that forcing the first defendant to undergo a DNA test against his consent would impinge on his personal liberty and right to privacy. The timing of the application and the sensitivities involved in ordering a DNA test were also considered.
Final Decision: The Civil Revision Petition was allowed, and the impugned order was set aside. No costs were awarded.
ORDER :
1. This Civil Revision Petition is filed under Article 227 of the Constitution of India, assailing the order dated 20.06.2019 in I.A. No. 254 of 2019 in O.S. No. 86 of 2013 on the file of the learned Senior Civil Judge, Huzurabad.
2. This application in I.A. No. 254 of 2019 was filed by the petitioner/plaintiff under Section 45 (6) of Indian Evidence Act, 1872 (for short ‘Evidence Act’) read with Section 151 of the Civil Procedure Code, 1908 (for short ‘IPC’) with a request to refer the first respondent/first defendant along with him for DNA test, directing the first defendant to give his blood samples before the Duty Medical Officer at Government Hospital, Huzurabad for examination of DNA test of the plaintiff along with first defendant to ascertain the paternity of the plaintiff. The first defendant has assailed the said order, through this civil revision petition.
3. The original suit in O.S. No. 86 of 2013 was filed by the plaintiff for partition and separate possession of suit schedule properties claiming 1/8th share out of the retirement service benefits of first defendant, which is referred as suit property. The first defendant has denied the paternity of the plaintiff in the written statement filed in the month of April, 2014 stating that when the plaintiff is not his son, and not entitled to seek any partition, much less 1/8th share in the suit schedule properties, thereby the plaintiff has filed an application in I.A. No. 254 of 2019 under Section 45 of Evidence Act r/w Section 151 of CPC to refer the plaintiff along with the first defendant for DNA test and it was allowed.
4. Assailing the said orders, this civil revision petition is filed by the first defendant on the following grounds:
(a) that the Court below failed to appreciate the rival contentions and the principles laid by the Hon’ble Supreme Court of India in Dwarika Prasad Satpathy vs. Sidyut Prava Dixit and Another, 2000 Cri. L.J. 1 SC and other decisions.
(b) that though the suit is filed in the year 2013 for partition, the plaintiff has deliberately failed to adduce evidence and that the plaintiff is aware that he is not the son of the first defendant and filed this application only to harass the first defendant.
(c) that the Court below has erred in holding that the mother of the plaintiff by name Gajjela Laxmi received maintenance in M.C. No. 37 of 2005 being the wife of the first defendant. In fact, the orders in M.C. No. 37 of 2005 u/s. 125 of CPC were set aside by the I Additional District Judge, Karimnagar in Criminal Revision Case No. 13 of 2002.
(d) that the Court below has arrived at a conclusion for referring the first defendant for DNA test relying on the judgment rendered in Rohith Shekhar vs. Narayan Dutt Tiwari passed in FAO (OS) No. 457 of 2011, which is altogether a different case.
5. Heard learned counsel for the petitioner and the respondent. Perused the material available on record. For the sake of convenience, the parties are hereinafter referred to as plaintiff and defendants as arrayed in the original suit.
6. The plaintiff has filed original suit for partition and separate possession claiming retirement benefits of first defendant. It is averred in the counter filed by the first defendant before the trial Court that the plaintiff has failed to adduce evidence. It is true though the original suit is filed in the year 2013, since August 2018 the further chief examination of PW-1 is not yet completed and while evidence of PW-1 is in progress, the present application is filed on 10.04.2019.
7. It is observed in the order impugned that the mother of plaintiff by name Gajjela Laxmi has received maintenance, vide MC No. 37 of 2005 from the first defendant, being his wife, if the plaintiff fails to prove his paternity, his reputation in the society will degrade causing great loss to his personal life and that by sending the DNA sample of the first defendant along with that of the plaintiff, it will be known whether the plaintiff is son of fi
