A DNA test of a minor child is not to be ordered routinely in matrimonial disputes and should only be directed when there is sufficient prima-facie material to dislodge the presumption of legitimacy under Section 112 of the Evidence Act.

ORDER :

1. Heard Sri Manoj Kumar Akula, learned counsel appearing for the petitioner in C.R.P. No. 2434 of 2023, Sri Srinivasa Rao Velivela, learned counsel appearing for the petitioner in C.R.P. No. 2421 of 2023, Sri T. Ramachander Rao, learned counsel representing Sri V. Chandrakanth, learned counsel appearing for respondent Nos. 1 to 3 and 5 to 9 in C.R.P. No. 2421 of 2023. Perused the record.

2. C.R.P. No. 2421 of 2023 is filed under Article 227 of Constitution of India challenging the order dated 24-03-2023 in I.A. No. 03 of 2021 in O.S. No. 87 of 2014 passed by the learned Special Sessions Judge for Fast Tracking the Cases Relating to Atrocities Against Women-cum-V Additional District Judge at Khammam.

3. C.R.P. No. 2434 of 2023 is filed under Article 227 of Constitution of India challenging the order dated 13-07-2017 in I.A. No. 142 of 2016 in O.S. No. 87 of 2014 passed by the learned I Additional District Judge at Khammam.

4. Parties hereinafter are referred to as they are arrayed in O.S. No. 87 of 2014.

5. Plaintiff viz. Mr.Vadiga Amose is petitioner in C.R.P. No. 2421 of 2023. He filed O.S. No. 87 of 2014 seeking partition and separate possession of suit schedule properties, cancellation of registered sale deed, dated 29-06-2011, to declare the award (decree), dated 20-08-2005 made in LAC No. 1049 of 2005 before the Lok Adalat, Khammam as null and void and to declare the registered mortgage deed dated 20-11-2007 executed by defendant No. 3 as null and void, etc. against the defendants therein.

6. In the said suit, plaintiff had pleaded that he is the 2nd son of Late Vadiga Veera Swamy through his first wife Smt. Emelyamma, who is defendant No. 5. Defendant No. 1 is the elder brother of the plaintiff being the eldest son of Late Vadiga Veera Swamy and Smt. Emelyamma. Defendant No. 4 is the 2nd wife of Late Vadiga Veera Swamy and defendant Nos. 2 and 3 are sons of defendant No. 4 and Late Vadiga Veera Swamy. Mr. Vadiga Veera Swamy died on 20-01-1999.

7. Late Vadiga Veera Swamy during subsistence of his first marriage with defendant No. 5 and having two male children i.e. plaintiff and defendant No. 1, again married defendant No. 4 and begotten defendant Nos. 2 and 3, who are treated as illegitimate children of Late Vadiga Veera Swamy.

8. Defendant Nos. 1 to 4 have filed written statement in the said suit denying the said relationship that plaintiff is not the son of Late Vadiga Veera Swamy and Smt. Emelyamma. It is also alleged in the written statement that plaintiff is not the son of Late Vadiga Veera Swamy and Smt. Emelyamma. He has not filed any proof including educational records or other identity proof. In order to prove the same, it is necessary to conduct DNA test. Therefore, plaintiff had filed I.A. No. 3 of 2021 in O.S. No. 87 of 2014 under Sections 45 and 50 of Indian Evidence Act r/w. Section 151 of C.P.C. to direct respondent Nos. 1 and 5 along with plaintiff to undergo DNA test by appearing before the Center for Cellular and Molecular Biology, Government of India, Hyderabad, by giving blood samples to conduct DNA test and direct the authorities to conduct test as to biological paternity of defendant Nos. 1 and 5 as the same or not and whether defendant No. 1 is the biological brother of plaintiff or not and biological son of Late Vadiga Veera Swamy and Smt. Emelyamma (defendant No. 5).

9. The said application was opposed by defendant Nos. 1 to 4 and defendant Nos. 6 and 8 contending that to undergo any DNA test, the male person of whom the allegations are made i.e. Late Vadiga Veera Swamy has to be alive or atleast his parents, brothers or sisters have to be alive. In the absence of the said persons, DNA test is meaningless and not valid, in accordance with law. It is not possible to conduct paternity test if the alleged father is dead, such as, using samples obtained in autopsy or through skeletal remains of the alleged father. In the present case, neither the alleged father is alive nor his biological relatives a