IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 29.10.2024 CORAM :

THE HON'BLE MR.JUSTICE V.LAKSHMINARAYANAN C.R.P.No.3876 of 2024 and C.M.P.No.21372 of 2024 Lyloon .. Petitioner Versus

1.Sasireka

2.Sabarishkumar

3.V.S.Sudhan

4.Kathija

5.Rahmath Bi

6.Shahiroon

7.Hiralal

8.Gowherlal

9.Biji @ Fazasulula

10.Kevarchand

11.Sayeed Sauhad

12.Rajadurai

13.Kandhasamy

14.Susilkumar .. Respondents Prayer: Civil Revision Petition filed under Article 227 of the Constitution of India to set aside the fair and decreetal order dated 04.04.2024 made in I.A.No.1 of 2022 in O.S.No.12 of 2021 on the file of the III Additional District and Sessions Judges' Court, Virudhachalam For Petitioner : Mr.T.Sivagnanasambandan

ORDER

The case of the plaintiff is that she was born from the wedlock between one Abdul Majid @ Mothilal and one Fathima Bi @ Vijayalakshmi. On the basis of this claim, she presented a suit for partition and separate possession.

2. The defendants 7 to 9 entered appearance and filed a written statement stating that the plaintiff was born to Kathija and Rahmath Bi @ Kabaarsheriff. Since the plaintiff has asserted that she is an offspring of Mothilal and Fathima Bi, the defendants 7 to 9 took out an application under Order XXVI Rule 9 of the Code of Civil Procedure to send the samples for DNA examination.

3. The learned Trial Judge, after receipt of a counter from the civil revision petitioner, allowed the application seeking for a direction to the parties to undergo DNA test. Aggrieved by the same, the plaintiff is on revision

4. I have heard Mr.T.Sivagnanasambandan for the civil revision petitioner.

5. Mr.T.Sivagnansambandan submits that a perusal of the plaint documents, namely document Nos.4 to 7 shows that the plaintff is the daughter of Mothilal @ Abdul Majid. When these documents clinchingly proved the same, automatically Section 112 of the Indian Evidence Act applies. Therefore, the Court necessarily has come to a conclusion that the plaintiff is the daughter of Abdul Majid @ Mothilal and Vijayalakshmi @ Fathima Bi. He states that in the light of Section 112 of the Indian Evidence Act, the court below ought not to have allowed the application. He relies on the Judgment of the Supreme Court in Yamanamma v. Basappa, Civil Appeal No.9811 of 2024 dated 27.08.2024 to press his point.

6. I have carefully considered the submission of Mr.Sivagnanasambandan

7. It is a clear and categorical case of the defendants that the plaintff is the daughter of Rahmath Bi and Kabarsheriff. They do not accept that the petitioner was born to Mothilal @ Abdul Majid and Vijayalakshmi @

Fathima Bi.

8. The scope of Section 112 is that if a child is born during the continuance of a valid marriage between the mother and any other man, or within 280 days from the date of dissolution of the marriage and the mother has not remarried, the offspring shall be treated as a legitimate child of the person with whom, the mother was in relationship. This provision has exception where a party can prove that there was no access between the man and a wife for the purpose of proving the paternity of the child so born from the relationship. This section was incorporated in 1872. Scientific developments have taken place, which has to be taken note of by the courts.

9. A DNA test, the Supreme Court has held, proves the claim of paternity or maternity when is in dispute. The principle developed in Gautam Kundu v. State of West Bengal and another, 1993 AIR 2295 has been clarified by the Supreme Court in Dipanwita Roy v. Ronobroto Roy, (2015) 1 SCC 365. Therefore, it can no more be argued that DNA does not point out conclusively as regard the relationship between the parties.

10. With respect to the judgment relied in Yamanamma's case by Mr.T.Sivagnansambandan, I have to point out that it was argued before the Supreme Court that no body can be forced to undergo DNA test. The said submisson was rejected by the supreme court. Hon'ble Mr.Justice M.M.Sundresh, speaking for the bench, held that the DNA test