suit to declare the 1st respondent as the legally wedded wife and the 2nd respondent as the legitimate son of the revision petitioner and for grant of maintenance to them. In the said suit, they filed an interlocutory application to send the blood samples of the 2nd plaintiff and the defendant to the Forensic Science Laboratory, Hyderabad for the purpose of conducting DNA test to decide the paternity of the 2nd plaintiff. The said I.A., was allowed by the learned trial Court. Feeling aggrieved, the defendant filed the present revision.= The petitioner contended that he has no sort of any relationship with the respondents, he has a legally wedded wife and has a female child through her. In view of the total denial of relationship by the petitioner and making wild allegations against the 1st respondent touching her moral character, the right of the respondents to establish their relationship has to be adequately protected by the trial Court. If the trial Court refuses the prayer made by the respondents to direct the petitioner to undergo DNA test, it would be in the considered view of this Court is nothing but refusal to protect the rights of the respondents. The learned trial Court upon considering the relevant materials before it, arrived at the conclusion that directing the petitioner to undergo NDA test is proper. Having regard to the facts and circumstances of the case, this Court is of the opinion that the learned trial Court exercised discretion properly and allowed the petition filed by the respondents. As this Court is of the view that the DNA test proposed to be conducted is essential to establish the rights of the respondents, the order passed by the trial Court does not require any interference in the revision.
HONBLE SRI JUSTICE R.KANTHA RAO
Civil Revision Petition No.2502 of 2014
01-6-2015
Chinta Madhu Sudhana Rao Petitioner/Respondent/Defendant
Chinta Naga Lakshmi and another Respondents/Petitioners/Plaintiffs
Counsel for the Petitioner: Sri Kambhampati Ramesh
Babu
Counsel for Respondents: Sri Yeka Balasubrahmanyam
<Gist:
>Head Note:
? Cases referred:
1.AIR 2010 SC 2851
2.AIR 2003 SC 3450(1)
HONBLE SRI JUSTICE R.KANTHA RAO
Civil Revision Petition No.2502 of 2014
Date: 01-6-2015
Order:
This civil revision petition is directed against the order
dated 03-7-2014 passed by the Principal Junior Civil Judge,
Eluru, West Godavari district in I.A.No.715 of 2014 in
O.S.No.452 of 2011.
2. The respondents filed the suit to declare the
1st respondent as the legally wedded wife and the
2nd respondent as the legitimate son of the revision
petitioner and for grant of maintenance to them. In the said
suit, they filed an interlocutory application to send the
blood samples of the 2nd plaintiff and the defendant to the
Forensic Science Laboratory, Hyderabad for the purpose of
conducting DNA test to decide the paternity of the
2nd plaintiff. The said I.A., was allowed by the learned trial
Court. Feeling aggrieved, the defendant filed the present
revision.
3. I have heard Sri Kambhampati Ramesh Babu,
learned counsel appearing for the petitioner and Sri Yeka
Balasubrahmanyam, learned counsel appearing for the
respondents.
4. It is contended on behalf of the petitioner that
without there being any prima facie evidence about the
marriage between the petitioner and the 1st respondent, the
trial Court allowed the petition directing the petitioner to
undergo DNA test in a routine manner and the said
direction not being in accordance with law is liable to be set
aside in the present revision petition. According to the
learned counsel, a party can be directed to undergo DNA
test only in deserving cases where it is not possible to reach
the truth of paternity without use of such test and where
there is strong prima facie material about the marriage
between the parties and on proof of the fact that the
husband gaining access to wife during relevant period.
5. On the other hand, it is contended on behalf of the
respondents that since the petitioner without any basis
disowned his relationship with the respondents, it became
necessary for them to make an application before the trial
Court for a direction to the petitioner to undergo DNA test
and the direction issued by the trial Court being justified
having regard to the facts and circumstances of the case,
the order does not require any interference in the revision.
6. In Bhabani Prasad Jena v. Convenor Secretary,
Orissa State Commission for Women , the Supreme Court
held as follows:
In a matter where paternity of a child is in issue before
the Court, the use of DNA is an extremely delicate and
sensitive aspect. There is apparent conflict between the
right to privacy of a person not to submit himself
forcibly to medical examination and duty of the Court
to reach the truth, the Court must exercise its
discretion only after balancing the interests of the
parties and on due consideration whether for a just
decision in matter, DNA is eminently needed. DNA in
a matter relating to paternity of a child should not be
directed by the Court as a matter of course or in
a routine manner, whenever such a request is made.
The Court has to consider diverse aspects including
presumption under Section 112 of the Evidence Act;
pros and cons of such order and the test of eminent
need whether it is not possible for the Court to reach
the truth without use of such test.
7. The afore-referred judgment was relied on by the
learned counsel appearing for the petitioner and the learned
counsel argued that the trial Court in a mechanical way
directed the petitioner to undergo DNA test without
recording any sufficient reasons and also without
considering the other aspects including the presumption
under Section 112 of the Evidence Act. According to the
learned counsel, since the respondents could not be able to
place on record any material prima facie showing the
relationship between the parties, the trial Court ought not
to have directed the petitioner to undergo DNA test.
8. To appreciate the contentions urged, the plea put
forth by the defendant in the written statement before the
trial Court requires to be examined. In response to the
assertion made by the respondents that the 1st respondent
is the legally wedded wife and the 2nd respondent is the
legitimate son of the petitioner and that the marriage of the
1st respondent with the petitioner was performed on
08-8-2001 at 11.00 p.m., according to Hindu rites and
customs in Sri Venu Gopala Swamy Temple situate in
Nuzvid Road, Appannaveedu, the defendant contended that
at no point of time he had any occasion to visit the temple,
he never married the 1st respondent, he did not pay any
medical bills at the time of the birth of the 2nd respondent
as submitted by the respondents. According to him, he was
married to another woman legally and has a female child
through her. He further contended that the 1st respondent
made similar allegations before the elders and the elders
admonished her not to make any such allegations claiming
relationship with the petitioner.
9. It is nextly contended by the petitioner in the
written statement before the trial Court that the
1st respondents family has never maintained any moral or
social values in the society, it is known to one and all in the
vicinity, the mother of the 1st respondent deserted her
husband long back and leading immoral life and therefore,
the submission made by the 1st respondent that she has
been depending on her father for food and clothing is
absolutely false.
10. Thus, the petitioner not only denied any sort of
relationship with the 1st respondent and branded her entire
family as immoral and devoid of any social values. He went
to the extent of making allegations against the mother of the
1st respondent.
11. Under these circumstances, the question arises as
to whether the respondents are entitled to insist upon the
trial Court to issue a direction to the petitioner to undergo
DNA test.
12. In this context, it is relevant to refer to the
judgment of the Supreme Court in Sharda v. Dharmpal ,
wherein it was held as follows:
80. Therefore, when there is no right to
privacy specifically conferred by Article 21 of the
Constitution of India and with the extensive
interpretation of the phrase personal liberty this right
has been read into Article 21, it cannot be treated as
absolute right. What is emphasized is that some
limitations on this right have to be imposed and
particularly where two competing interests clash.
In matters of aforesaid nature where the legislature has
conferred a right upon his spouse to seek divorce on
such grounds, it would be the right of that spouse
which comes in conflict with the so-called right to
privacy of the respondent. Thus the Court has to
reconcile these competing interests by balancing the
interests involved.
81. If for arriving at the satisfaction of the Court
and to protect the right of a party to the lis who may
otherwise be found to be incapable of protecting his
own interest, the Court passes an appropriate order,
the question of such action being violative of Article 21
of the Constitution of India would not arise. The Court
having regard to Article 21 of the Constitution of India
must also see to it that the right of a person to defend
himself must be adequately protected.
82. It is, however, axiomatic that a Court shall
not order a roving inquiry. It must have sufficient
materials before it to enable it to exercise its discretion.
Exercise of such discretion would be subjected to the
supervisory jurisdiction of the Court in terms of S.115
of the Code of Civil Procedure and/or Article 227 of the
Constitution of India. Abuse of the discretionary power
at the hands of a Court is not expected. The Court
must arrive at a finding that the applicant has
established a strong prima facie case before passing
such an order.
13. From the two judgments of the Supreme Court
referred supra, it is clear that the Court has a wide
discretion to direct a party to undergo any medical test
including the DNA test. But, the discretion has to be
exercised by the Court properly on being satisfied about the
party requiring the Court to direct such a test to establish
a strong prima facie case. The party against whom an order
directing to undergo medical test is passed, is not permitted
to contend that it offends his personal liberty. When the
right of a party to the proceeding comes into conflict with
the so-called right to privacy and personal liberty of the
opposite party, the Court has to look into the competing
interests of the parties.
14. In the instant case, the petitioner baldly denied
any sort of relationship with the respondents. This apart,
he made wild allegations against the 1st respondent and her
family members. The respondents came forward with
a specific theory that on 08-8-2001 the marriage of the
1st respondent was performed with the petitioner in
a temple and thereafter, the spouses led conjugal life.
The 2nd respondent was said to have born to the
1st respondent through the petitioner during the wedlock
and also that the petitioner paid the medical bills of the
hospital at the time when the 1st respondent delivered the
2nd respondent. Even the petitioner admitted in the written
statement that the 1st respondent raised several disputes
before the elders in this regard claiming to be the legally
wedded wife of the petitioner and that the 2nd respondent
was born to her through the petitioner. The petitioner
contended that he has no sort of any relationship with the
respondents, he has a legally wedded wife and has a female
child through her. In view of the total denial of relationship
by the petitioner and making wild allegations against the
1st respondent touching her moral character, the right of
the respondents to establish their relationship has to be
adequately protected by the trial Court. If the trial Court
refuses the prayer made by the respondents to direct the
petitioner to undergo DNA test, it would be in the
considered view of this Court is nothing but refusal to
protect the rights of the respondents. The learned trial
Court upon considering the relevant materials before it,
arrived at the conclusion that directing the petitioner to
undergo NDA test is proper. Having regard to the facts and
circumstances of the case, this Court is of the opinion that
the learned trial Court exercised discretion properly and
allowed the petition filed by the respondents. As this Court
is of the view that the DNA test proposed to be conducted is
essential to establish the rights of the respondents, the
order passed by the trial Court does not require any
interference in the revision.
15. For the foregoing, the civil revision petition fails
and accordingly the same is dismissed. The miscellaneous
petitions, if any, pending in this revision shall stand closed.
No costs.
___________________
R.KANTHA RAO, J.
01st June, 2015.
Civil Revision Petition No.2502 of 2014
01-6-2015
Chinta Madhu Sudhana Rao Petitioner/Respondent/Defendant
Chinta Naga Lakshmi and another Respondents/Petitioners/Plaintiffs
Counsel for the Petitioner: Sri Kambhampati Ramesh
Babu
Counsel for Respondents: Sri Yeka Balasubrahmanyam
<Gist:
>Head Note:
? Cases referred:
1.AIR 2010 SC 2851
2.AIR 2003 SC 3450(1)
HONBLE SRI JUSTICE R.KANTHA RAO
Civil Revision Petition No.2502 of 2014
Date: 01-6-2015
Order:
This civil revision petition is directed against the order
dated 03-7-2014 passed by the Principal Junior Civil Judge,
Eluru, West Godavari district in I.A.No.715 of 2014 in
O.S.No.452 of 2011.
2. The respondents filed the suit to declare the
1st respondent as the legally wedded wife and the
2nd respondent as the legitimate son of the revision
petitioner and for grant of maintenance to them. In the said
suit, they filed an interlocutory application to send the
blood samples of the 2nd plaintiff and the defendant to the
Forensic Science Laboratory, Hyderabad for the purpose of
conducting DNA test to decide the paternity of the
2nd plaintiff. The said I.A., was allowed by the learned trial
Court. Feeling aggrieved, the defendant filed the present
revision.
3. I have heard Sri Kambhampati Ramesh Babu,
learned counsel appearing for the petitioner and Sri Yeka
Balasubrahmanyam, learned counsel appearing for the
respondents.
4. It is contended on behalf of the petitioner that
without there being any prima facie evidence about the
marriage between the petitioner and the 1st respondent, the
trial Court allowed the petition directing the petitioner to
undergo DNA test in a routine manner and the said
direction not being in accordance with law is liable to be set
aside in the present revision petition. According to the
learned counsel, a party can be directed to undergo DNA
test only in deserving cases where it is not possible to reach
the truth of paternity without use of such test and where
there is strong prima facie material about the marriage
between the parties and on proof of the fact that the
husband gaining access to wife during relevant period.
5. On the other hand, it is contended on behalf of the
respondents that since the petitioner without any basis
disowned his relationship with the respondents, it became
necessary for them to make an application before the trial
Court for a direction to the petitioner to undergo DNA test
and the direction issued by the trial Court being justified
having regard to the facts and circumstances of the case,
the order does not require any interference in the revision.
6. In Bhabani Prasad Jena v. Convenor Secretary,
Orissa State Commission for Women , the Supreme Court
held as follows:
In a matter where paternity of a child is in issue before
the Court, the use of DNA is an extremely delicate and
sensitive aspect. There is apparent conflict between the
right to privacy of a person not to submit himself
forcibly to medical examination and duty of the Court
to reach the truth, the Court must exercise its
discretion only after balancing the interests of the
parties and on due consideration whether for a just
decision in matter, DNA is eminently needed. DNA in
a matter relating to paternity of a child should not be
directed by the Court as a matter of course or in
a routine manner, whenever such a request is made.
The Court has to consider diverse aspects including
presumption under Section 112 of the Evidence Act;
pros and cons of such order and the test of eminent
need whether it is not possible for the Court to reach
the truth without use of such test.
7. The afore-referred judgment was relied on by the
learned counsel appearing for the petitioner and the learned
counsel argued that the trial Court in a mechanical way
directed the petitioner to undergo DNA test without
recording any sufficient reasons and also without
considering the other aspects including the presumption
under Section 112 of the Evidence Act. According to the
learned counsel, since the respondents could not be able to
place on record any material prima facie showing the
relationship between the parties, the trial Court ought not
to have directed the petitioner to undergo DNA test.
8. To appreciate the contentions urged, the plea put
forth by the defendant in the written statement before the
trial Court requires to be examined. In response to the
assertion made by the respondents that the 1st respondent
is the legally wedded wife and the 2nd respondent is the
legitimate son of the petitioner and that the marriage of the
1st respondent with the petitioner was performed on
08-8-2001 at 11.00 p.m., according to Hindu rites and
customs in Sri Venu Gopala Swamy Temple situate in
Nuzvid Road, Appannaveedu, the defendant contended that
at no point of time he had any occasion to visit the temple,
he never married the 1st respondent, he did not pay any
medical bills at the time of the birth of the 2nd respondent
as submitted by the respondents. According to him, he was
married to another woman legally and has a female child
through her. He further contended that the 1st respondent
made similar allegations before the elders and the elders
admonished her not to make any such allegations claiming
relationship with the petitioner.
9. It is nextly contended by the petitioner in the
written statement before the trial Court that the
1st respondents family has never maintained any moral or
social values in the society, it is known to one and all in the
vicinity, the mother of the 1st respondent deserted her
husband long back and leading immoral life and therefore,
the submission made by the 1st respondent that she has
been depending on her father for food and clothing is
absolutely false.
10. Thus, the petitioner not only denied any sort of
relationship with the 1st respondent and branded her entire
family as immoral and devoid of any social values. He went
to the extent of making allegations against the mother of the
1st respondent.
11. Under these circumstances, the question arises as
to whether the respondents are entitled to insist upon the
trial Court to issue a direction to the petitioner to undergo
DNA test.
12. In this context, it is relevant to refer to the
judgment of the Supreme Court in Sharda v. Dharmpal ,
wherein it was held as follows:
80. Therefore, when there is no right to
privacy specifically conferred by Article 21 of the
Constitution of India and with the extensive
interpretation of the phrase personal liberty this right
has been read into Article 21, it cannot be treated as
absolute right. What is emphasized is that some
limitations on this right have to be imposed and
particularly where two competing interests clash.
In matters of aforesaid nature where the legislature has
conferred a right upon his spouse to seek divorce on
such grounds, it would be the right of that spouse
which comes in conflict with the so-called right to
privacy of the respondent. Thus the Court has to
reconcile these competing interests by balancing the
interests involved.
81. If for arriving at the satisfaction of the Court
and to protect the right of a party to the lis who may
otherwise be found to be incapable of protecting his
own interest, the Court passes an appropriate order,
the question of such action being violative of Article 21
of the Constitution of India would not arise. The Court
having regard to Article 21 of the Constitution of India
must also see to it that the right of a person to defend
himself must be adequately protected.
82. It is, however, axiomatic that a Court shall
not order a roving inquiry. It must have sufficient
materials before it to enable it to exercise its discretion.
Exercise of such discretion would be subjected to the
supervisory jurisdiction of the Court in terms of S.115
of the Code of Civil Procedure and/or Article 227 of the
Constitution of India. Abuse of the discretionary power
at the hands of a Court is not expected. The Court
must arrive at a finding that the applicant has
established a strong prima facie case before passing
such an order.
13. From the two judgments of the Supreme Court
referred supra, it is clear that the Court has a wide
discretion to direct a party to undergo any medical test
including the DNA test. But, the discretion has to be
exercised by the Court properly on being satisfied about the
party requiring the Court to direct such a test to establish
a strong prima facie case. The party against whom an order
directing to undergo medical test is passed, is not permitted
to contend that it offends his personal liberty. When the
right of a party to the proceeding comes into conflict with
the so-called right to privacy and personal liberty of the
opposite party, the Court has to look into the competing
interests of the parties.
14. In the instant case, the petitioner baldly denied
any sort of relationship with the respondents. This apart,
he made wild allegations against the 1st respondent and her
family members. The respondents came forward with
a specific theory that on 08-8-2001 the marriage of the
1st respondent was performed with the petitioner in
a temple and thereafter, the spouses led conjugal life.
The 2nd respondent was said to have born to the
1st respondent through the petitioner during the wedlock
and also that the petitioner paid the medical bills of the
hospital at the time when the 1st respondent delivered the
2nd respondent. Even the petitioner admitted in the written
statement that the 1st respondent raised several disputes
before the elders in this regard claiming to be the legally
wedded wife of the petitioner and that the 2nd respondent
was born to her through the petitioner. The petitioner
contended that he has no sort of any relationship with the
respondents, he has a legally wedded wife and has a female
child through her. In view of the total denial of relationship
by the petitioner and making wild allegations against the
1st respondent touching her moral character, the right of
the respondents to establish their relationship has to be
adequately protected by the trial Court. If the trial Court
refuses the prayer made by the respondents to direct the
petitioner to undergo DNA test, it would be in the
considered view of this Court is nothing but refusal to
protect the rights of the respondents. The learned trial
Court upon considering the relevant materials before it,
arrived at the conclusion that directing the petitioner to
undergo NDA test is proper. Having regard to the facts and
circumstances of the case, this Court is of the opinion that
the learned trial Court exercised discretion properly and
allowed the petition filed by the respondents. As this Court
is of the view that the DNA test proposed to be conducted is
essential to establish the rights of the respondents, the
order passed by the trial Court does not require any
interference in the revision.
15. For the foregoing, the civil revision petition fails
and accordingly the same is dismissed. The miscellaneous
petitions, if any, pending in this revision shall stand closed.
No costs.
___________________
R.KANTHA RAO, J.
01st June, 2015.
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