1. Plaintiffs in OS.No.387 of 2008 on the file of the learned District Munsif-cum-Judicial Magistrate, Pappireddipatti are the petitioners in the above civil revision petition.
2. The plaintiffs have filed the said suit seeking a declaration that the first plaintiff is the wife and the second plaintiff is the daughter of the first defendant/first respondent herein and for a consequential injunction restraining the third respondent from paying the retirement benefits to the first respondent herein.
3. Pending suit, the petitioners herein filed IA.No.715 of 2009 to subject the petitioners and the first respondent to DNA test. The said application was opposed by the first respondent herein. The Court below, on consideration of rival contentions, dismissed the said application and being aggrieved by that, the above civil revision petition has been filed.
4. Heard learned counsel for the petitioners.
5. Learned counsel for the petitioners submits that the reason assigned by the Court below in rejecting the said application is unsustainable. The observation of the Court below that it is only for the first respondent to disprove the presumption under Section 112 of the Indian Evidence Act against the petitioners is no good reason for dismissing the petitioners application. Learned counsel for the petitioners further submits that without DNA test, it would be very difficult for the petitioners to prove the paternity of the child.
6. In support of the said contentions, learned counsel for the petitioners has relied upon the decision of the Apex Court in the case of Goutam Kundu v. State of West Bengal (reported in AIR 1993 SC 2295), in which, in paragraph 26, it has been held thus : From the above discussion it emerges:-
(1) That Courts in India cannot order blood test as a matter of course.
(2) Wherever applications are made for such prayers in order to have roving enquiry, the prayer for blood test cannot be entertained.
(3) There must be a strong prima facie case in that the husband must establish non access in order to dispel the presumption arising under Section 112 of the Evidence Act;
(4) The Court must carefully examine as to what would be the consequence of ordering the blood test; whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman.
(5) No one can be compelled to give sample of blood for analysis.
7. Learned counsel for the petitioners has also relied upon the decision in the case of Sunil Eknath Trambake v. Leelavati Sunil Trambake (reported in AIR 2006 Bombay 140), in which, in paragraph 6, the Bombay High Court held thus : Merely because either of the parties have disputed a factum of paternity does not mean that the Court should direct DNA test or such other test to resolve the controversy. The parties should be directed to lead evidence to prove or disprove the factum of paternity and only if the Court finds it impossible to draw an inference or adverse inference on the basis of such evidence on record or the controversy in issue cannot be resolved without DNA test, it may direct DNA test and not otherwise. In other words, only in exceptional and deserving cases, where such a test becomes indispensable to resolve the controversy the Court can direct such test. DNA test, in any case, cannot be directed as a matter of routine. The Courts should record reasons as to how and why such test in the case is necessary to resolve the controversy and is indispensable. That is necessary since a result of such test, in matrimonial and succession cases, being negative will have an effect of branding a child as a bastard and the mother as an unchaste woman as noted in Goutam Kundu v. State of West Bengal (reported in AIR 1993 SC 2295). That may also adversely affect the child physiologically. The Courts, however, should not hesitate to direct DNA test if it is in the best interest of a child.
8. I have considered the said submissions and perused the materials on record.
9. The Court below, while dismissing the application, held that the marriage between the first plaintiff/first petitioner herein and the first defendant/first respondent herein can be proved by adducing acceptable oral and documentary evidence. To prove the paternity of the minor the second petitioner herein, it is not necessary to subject the second petitioner and the first respondent herein to DNA test. The Court below further observed that once the marriage between the first petitioner and the first respondent is established, then, a presumption under Section 112 of the Indian Evidence Act can be raised. Such a presumption can be rebutted by adducing evidence. The aforesaid reasons assigned by the Court below cannot be said to be erroneous. However, as laid down by the Supreme Court in the decision report in AIR 1993 SC 2295 (cited supra), there must be a strong prima facie case in that the husband must establish non-access in order to dispel the presumption arising under Section 112 of the Evidence Act.
10. As has been held by the Bombay High Court in the decision reported in AIR 2006 Bombay 140 (cited supra), merely because either of the parties disputed the factum of paternity, it does not mean that the Court should direct DNA test or such other test to resolve the controversy. It was further held that the parties should be directed to lead evidence to prove or disprove the factum of paternity and only if the Court finds it impossible to draw an inference or adverse inference on the basis of such evidence on record or the controversy in issue cannot be resolved without DNA test, it may direct DNA test and not otherwise.
11. In this case, the evidence has been over. This Court is of the considered view that if, on the basis of the evidence adduced in this case, the Court below is unable to resolve the dispute regarding paternity, it is open to the Court below to subject the minor second plaintiff and the first defendant to DNA test.
12. With the above direction, the civil revision petition is disposed of. Consequently, the above MP is closed.