OP(C) NO. 1245 OF 2022

``` OP(C) NO. 1245 OF 2022 ``` ``` 1 ``` # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 19[TH] DAY OF JANUARY 2023 / 29TH POUSHA, 1944 ``` ## **`OP(C) NO. 1245 OF 2022`** ``` OS 387/2019 OF MUNSIFF COURT, PERUMBAVOOR ``` ## **`PETITIONER/PETITIONER/PLAINTIFF:`** ``` SHAJI AGED 52 YEARS S/O POTTY P R, POOVAMPALATHINKAL HOUSE, NOW RESIDING AT THANNIKKAL HOUSE, KEEZHILLAM P 0. RAYAMANGALAM VILLAGE,KUNNATHUNADU TALUK, PIN - 683541 BY ADVS. SRI.M.K.GOPIMOHANAN VARGHESE PREM ``` ## **`RESPONDENTS/RESPONDENTS/DEFENDANTS:`** ``` 1POTTY P R AGED 70 YEARS POOVAMPALATHINKAL HOUSE, VADASSERY, KOTTAPPADY P O. KOTHAMANGALAM, ERNAKULAM, PIN - 686695 2LEELA AGED 70 YEARS W/O GOPI, THANNIKKAL HOUSE, KEEZHILLAM P O. RAYAMANGALAM VILLAGE, KUNNATHUNADU TALUK ERNAKULAM, PIN - 683541 BY ADV JAYAPRASAD M R FOR R2 ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 19.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` OP(C) NO. 1245 OF 2022 ``` ``` 2 ``` ## **JUDGMENT** Aggrieved by Ext.P7 order passed in I.A. No.4/2021 in O.S.No.387/2019 by the Court of the Munsiff, Perumbavoor, the plaintiff in the suit has filed the original petition. The respondents are the defendants in the suit. 2. The factual matrix leading to Ext.P7 order, in a nutshell, is: the petitioner has filed the suit against the respondents for a declaration that he is the biological son of the 1[st] respondent. The 1[st] respondent – the putative father - has refuted the allegations in the plaint by filing Ext.P2 written statement. On the other hand, the mother of the petitioner has filed Ext.P3 written statement, admitting the averments in the plaint and, inter-alia, contending that the petitioner was born in the relationship between her and the first respondent. In view of the blunt denial made by the 1[st] respondent in Ext.P2 written statement, the petitioner was compelled to file I.A.No.4/2021 (Ext.P4), under Section 75(e) read with Order 26 of the Code of Civil Procedure, 1908 (in short ``` OP(C) NO. 1245 OF 20223 ``` ‘Code’), to direct the petitioner and the respondents to be subjected to Deoxyribonucleic Acid (DNA) Test for a fair and just decision of the suit. The application was opposed by the 1[st] respondent through Ext.P5 counter statement. The court below, by the impugned Ext.P7 order, has dismissed Ext.P4 application. Ext.P4 is ex-facie illegal, erroneous and unsustainable in law. Hence, the original petition. 3. Heard; Sri. M.K.Gopimohanan, the learned counsel appearing for the petitioner and Sri. Jayaprasad M.R., the learned counsel appearing for the 2[nd] respondent. Even though notice has been served on the 1[st] respondent, there is no appearance for him. 4. The short point is, is there any illegality in Ext.P7 order. 5. The specific case of the petitioner, in Ext. P1 plaint, is that he was born out of the relationship between the respondents. The 1[st] respondent had agreed to marry the 2[nd] respondent and financially support the petitioner, but he later, resiled from his promise. However, the 1[st] ``` OP(C) NO. 1245 OF 20224 ``` respondent treated the petitioner as his son. But, in 2019, he denied the relationship. 6. The 1[st] respondent has denied the said allegations in the plaint, but the 2[nd] respondent has admitted the same. 7. In the above background, the petitioner filed Ext.P4 application to subject all the parties to a DNA profiling test, to ascertain the paternity of the petitioner. 8. The law with regard to subjecting a person to DNA test is no longer _res integra,_ in view of the myriad judicial pronouncements of the Hon’ble Supreme Court and this Court. 9. The subtle distinction in the case on hand is that, here the petitioner desires to get his paternity declared and not his legitimacy. The latter terminology has no application because there is no marriage between the respondents. Therefore, the rigor of conclusive proof under Section 112 of the Evidence Act cannot be strictly drawn in the instant case. Most of precedents relied on by the court below in this regard are irrelevant. ``` OP(C) NO. 1245 OF 2022 ``` ``` 5 ``` 10. In **Nandlal Wasudeo Badwaik** v. **Lata Nandlal Badwaik** [AIR 2014 SC 932], the Hon’ble Supreme Court has emphatically held that the result of a DNA test is scientifically accurate and when there is a conflict with conclusive proof contemplated under Section 112 of the Evidence Act, the DNA test result would prevail over the presumption of law. 11. In **Sharda** v. **Dharmpal** [AIR 2003 SC 3450], the Hon’ble Supreme Court has held that the courts have the power to direct a person to undergo a medical test _de hors_ his right to life under Article 21 of the Constitution of India. If a person refuses to undergo a test, then adverse inference can be drawn against him. 12. In a case of identical circumstances, i.e., in **Rohit Shekhar** v. **Narayan Dutt Tiwari and another** [AIR 2012 Delhi 151] the Delhi High Court speaking through Justice S. Ravindra Bhat (as he then was), has succinctly held that persons can be directed to undergo DNA test, when the dispute revolves on the paternity of a person. 13. On a conspectus of the rival pleadings, especially ``` OP(C) NO. 1245 OF 20226 ``` the stand of the 2[nd] respondent, and the law referred to above, I am convinced that the petitioner has made out a strong prima facie case, to subject the parties to a DNA profiling test, would be the best possible course to decide the dispute on hand, considering the accuracy of the test. Ultimately the triumph of truth is the hallmark of justice. 14. In the above factual and legal background, I hold that Ext.P7 order passed by the court below is erroneous, wrong and passed without a proper understanding of law, which warrants interference by this Court under Article 227 of the Constitution of India. In the result, I allow the original petition as follows: (i) Ext.P7 order is set aside. (ii) Ext.P4 application is allowed. (iii) The petitioner and the respondents are referred to the Rajiv Gandhi Centre for Biotechnology, Thiruvananthapuram, for the purpose of conducting the DNA profiling test. (iv) The court below, in consultation with the above Centre, shall fix the date for conducting the above test. ``` OP(C) NO. 1245 OF 20227 ``` (v) The entire expenses for the test shall initially be borne by the petitioner, and the same shall be subject to the result of the suit. Sd/- ## **C.S.DIAS, JUDGE** okb/19.1.2023 //True copy// P.S. to Judge ``` OP(C) NO. 1245 OF 20228 ``` ## **`APPENDIX OF OP(C) 1245/2022`** |`PETITIONER EXHIBITS`|| |---|---| |`Exhibit P1`|`TRUE COPY OF PLAINT IN OS 387/19, MUNSIFF`| ||`COURT PERUMBAVOOR`| |`Exhibit P2`|`TRUE COPY OF WRITTEN STATEMENT OF 1"`| ||`DEFENDANT`| |`Exhibit P3`|`TRUE COPY OF WRITTEN STATEMENT OF 2ND`| ||`DEFENDANT`| |`Exhibit P4`|`TRUE COPY OF IA NO 4/21 IN OS 387/19, MUNSIFF`| ||`COURT PERUMBAVOOR.`| |`Exhibit P5`|`TRUE COPY OF OBJECTION OF 1ST DEFENDANT IA NO`| ||`4/21`| |`Exhibit P6`|`TRUE COPY OF ORDER IN IA NO 7/22 IN OS 387/19`| |`Exhibit P7`|`TRUE COPY OF ORDER IN IA NO 4/21 IN OS`| ||`387/19.`|