OP(C) No. 191 of 2023 (Gangadharan v. Sree Devi Amma and Saradha)

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 14[TH] DAY OF MARCH 2023 / 23RD PHALGUNA, 1944 ``` ## `OP(C) NO. 191 OF 2023` ``` AGAINST THE ORDER DATED 21.12.2022 IN I.A.NO.669/2022 IN OS 225/2017 OF MUNSIFF MAGISTRATE COURT,PATTAMBI ``` ## `PETITIONER:` ``` GANGADHARAN AGED 74 YEARS S/O. EDAPPALATH MELETHIL KUTTIKRISHNAN NAIR, THANNEERKODE DESAM, CHALISSERY VILLAGE, PATTAMBI TALUK, PALAKKAD DISTRICT, PIN – 679536 ``` ``` BY ADVS.SANTHEEP ANKARATH P.ANIRUDHAN ``` ## `RESPONDENTS:` ``` 1SREEDEVI AMMA AGED 78 YEARS D/O. EDAPPALATH MELETHIL KUTTIKRISHNAN NAIR, THANNEERKODE DESAM, CHALISSERY VILLAGE, PATTAMBI TALUK, PALAKKAD DISTRICT, PIN – 679536 ``` ``` 2SARADHA D/O. EDAPPALATH MELETHIL KUTTIKRISHNAN NAIR, THANNEERKODE DESAM, CHALISSERY VILLAGE, PATTAMBI TALUK, PALAKKAD DISTRICT, PIN- 679 536 ``` ``` (IMPLEADED AS ADDITIONAL 2ND RESPONDENT VIDE ORDER DATED 10.03.2023 IN I.A. NO. 1/2023) ``` ``` BY ADVS.S.VINOD BHAT ANAGHA LAKSHMY RAMAN(K/000767/2015) GREESHMA CHANDRIKA.R(K/807/2020) ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 14.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` O.P.(C)No.191/2023 ``` ``` -:2:- ``` Dated this the 14[th] day of March, 2023 ## **J U D G M E N T** Feeling aggrieved by Ext P10 order passed in I.A.No.669/2022 in O.S.No.225/2017 by the Court of the Munsiff, Pattambi, the first defendant in the suit has filed the original petition. The first respondent is the plaintiff and the second respondent is the second defendant in the suit. 2. The background facts leading to Ext P10 order, in a nutshell, are: - (i) The first respondent has filed the suit against the petitioner and the second respondent for partition. - (ii) The first respondent’s case is that she is the daughter of Kuttikrishnan Nair and Madhavi Amma. The petitioner and the second respondent are the illegitimate children of Melethil Kuttikrishnan Nair, in his relationship with Lakshmi Appissi. On the death of Kuttikrishnan Nair, the first respondent is entitled to[2] /4th share in the properties of her father. ``` O.P.(C)No.191/2023 ``` ## `-:3:-` - (iii) The petitioner and the second respondent filed Ext P2 written statement, inter alia, contending that there is no marriage between first respondent’s mother and Kuttikrishnan Nair. The suit is only an experimental litigation. - (iv) At the time of trial, the respondent filed I.A.No.669/2022 (Ext P3), to subject the first respondent, the petitioner and the second respondent to a DNA profiling test. Yet, the learned counsel appearing for the first respondent submitted that the application need not be considered. - (v) After the conclusion of the trial, i.e., after PWs 1 to 5 were examined on the side of the first respondent, the first respondent pressed for the consideration of Ext P3 application. - (vi) Ext P3 application was resisted by the petitioner and second respondent through Ext P9 counter statement. It was their case that the application is unsustainable in law, because the first respondent has not proved the alleged marriage between Kuttikrishnan Nair and Lakshmi Appissi. ``` O.P.(C)No.191/2023 ``` ``` -:4:- ``` - (vii) The court below, by the impugned Ext P10 order, allowed Ext P3 application. - (viii)Ext P10 order is palpably wrong, improper and illegal. Hence, the original petition. 3. Heard; Sri. Santheep Ankarath, the learned counsel appearing for the petitioner and Sri. S. Vinod Bhat, the learned counsel appearing for the first respondent. 4. The point is, is there any error in Ext P10 order?. 5. The first respondent has sought for a decree of partition on the allegation that she is the daughter born in the wedlock between Kuttikrishnan Nair and Lakshmi Appissi. It is her further contention that the petitioner and the second respondent are the illegitimate children born in the relationship between Kuttikrishnan Nair and Madhavi Amma. In order to substantiate the fact that the first respondent, the petitioner and the second ``` O.P.(C)No.191/2023 ``` ``` -:5:- ``` respondent are born from the same father, the first respondent filed Ext P3 application. Even though the application was opposed by the petitioner and the second respondent, the court below, by the impugned Ext P10 order, allowed the application by holding thus: “10. I have gone through the entire records including the evidence adduced by both sides. There is no direct evidence to prove the factum of solemnization of the marriage of the mother of the petitioner with Kuttikrishnan Nair. The marriage is said to have been solemnized during the period 1940-41. The available evidence before the court to prove the relationship of the mother of the petitioner with the father of the respondents is in the form of oral testimony of PW1 to PW5. The respondents have disputed the paternity of the petitioner. The petitioner is attempting establish her paternity and thereby her legitimacy by volunteering herself for the DNA test. The main contention raised by the respondents is that the evidence adduced by PW1 to PW5 is proved to be false during cross examination. In such circumstances the sibling DNA test will not be helpful to the petitioner to prove her case, it is contended. At this stage, the court is not supposed to analyse the evidence on record and needs only to decide whether the test is necessary to decide the dispute in this case. The question whether the petitioner is the daughter of late Kuttikrishnan Nair or not is the main issue to be decided in this case. Even if the marriage is not proved, once the petitioner is able to establish the paternity, ``` O.P.(C)No.191/2023 ``` ``` -:6:- ``` she may be able to succeed in the case. As the paternity is disputed, and there is no direct evidence to prove the same and subsistence of the court of marriage of her parents, i am of the view that the sibling DNA test is highly necessary to resolve the dispute in this case. Whatever may be the result of the test, that will not have an effect of branding anyone else as an illegitimate child or any woman as unchaste. The test is highly necessary to bring out the truth and to decide the dispute in this case. In such circumstances I am of the view that the petition is to be allowed.” 6. The law with regard to subjecting a person to DNA profiling test has undergone a paradigm shift over the years through a host of judicial pronouncements by `.` the Hon’ble Supreme Court 7. Initially in **Goutam Kundu v. State of West Bengal and another** , [1993 (3) SCC 418] the Hon’ble Supreme Court held that a blood test cannot be ordered as a matter of course, nor the same can be done in order to have roving inquiry. There must be a strong prima facie case where the husband must establish non-access in order to dispel the presumption arising under S.112 of the Evidence Act. Further, the Court must carefully ``` O.P.(C)No.191/2023 ``` ## `-:7:-` 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. Nobody can be compelled to give sample of blood for analysis. 8. Later, the Hon’ble Supreme Court in **Sharda Vs. Dharmpal** [AIR 2003 SC 3450] explained that the ratio in **Goutam Kundu's** case (supra) was not an authority for the proposition that under no circumstances the Court can direct blood tests to be conducted. In matrimonial disputes, where divorce is sought on the ground of impotency etc., then without any medical examination, it would be difficult to conclude whether allegation made by a spouse is correct or not. In such situation, the party would always insist on medical examination. The avoidance thereof on the plea of right to privacy or of personal liberty under Art.21 of the Constitution of India would make the same impossible for any conclusion. ``` O.P.(C)No.191/2023 ``` ``` -:8:- ``` 9. Then, in **Bhabani Prasad Jena Vs. Convenor Secretary Orissa State Commission for Women and another** [2018 (8) SCC 33], the Hon’ble Supreme Court, after referring to **Goutam Kundu** and **Sharda** (supra), held that in case where paternity of a child is in question before the Court, the use of concept of DNA would be extremely delicate and sensitive aspect. One view is that when modern science gives means of ascertaining the paternity of a child, then there should not be any hesitation to use the same. The other view is that the Court must be reluctant to use such scientific mechanism which may result in invasion of right to privacy of an individual and even may have a devastating effect on the child and may bastardise an innocent child, even though his mother and her spouse were living together during the time of conception. The 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 must be coherently decided and the ``` O.P.(C)No.191/2023 ``` ``` -:9:- ``` Court must exercise its discretion only after balancing the interests of the parties. The Court would consider whether for a just decision, DNA profile is eminently needed. DNA profile in a matter relating to paternity of a child should not be directed as a matter of course or in a routine manner. The Court has to consider diverse aspects including presumption under S.112 of the Evidence Act and other pros and cons of the situation. 10. In **Nandlal Wasudeo Badwalk Vs. Lata Nandlal Badwalk and another** [2014 (2) SCC 576] the Hon'ble Supreme Court has embarked upon the modern technology provided for possibility of proof of fact which was not available at the time when S.112 of the Evidence Act was enacted. The presumption may not be attracted where truth or fact is known. The interest of justice will be best served by ascertaining the truth. The Court should be furnished with best available science and may not be left to bank upon presumptions, unless science has no answer to the facts in issue. The presumption in ``` O.P.(C)No.191/2023 ``` ``` -:10:- ``` such a situation was held to be rebuttable and must yield to proof. When there is a conflict between a conclusive proof envisaged under law and a proof based on scientific advancement accepted by the world community to be correct, then the latter must prevail over the former. 11. In **Dipantwita Roy Vs. Ronobroto Roy** [2015 (1) SCC 365] the Hon'ble Supreme Court held that prayer of the husband for conducting a DNA test to establish the alleged adulterous behavior of wife and incidental legitimacy of son would not be strictly covered by S.112 of the Evidence Act. The alleged infidelity of wife would not be established without a DNA test, which is the most legitimate and scientifically proved mechanism to establish the assertion of infidelity. The test could also be used by the wife to rebut assertion of husband to establish that she had not been unfaithful, adulterous or disloyal to the husband. In case of acceptance by the wife to submit for DNA test, the same ``` O.P.(C)No.191/2023 ``` ``` -:11:- ``` would conclusively determine the veracity of accusation leveled against her and in case of her denial to comply with the direction, the allegation would be determined by the Court by drawing an adverse inference against her in terms of S.114(h) of the Evidence Act. DNA evidence has assumed great significance and is a legally recognized phenomenon. Scientific investigations are the need of the hour. DNA test is scientific and its accuracy is 99.99 % and therefore, it can be used as evidence not only in sexual assault and criminal cases, but also in civil cases involving question of paternity and succession.” 12. On a whole survey of the precedential authority on subjecting a person to DNA profiling, the law is nigh settled. 13. Nonetheless, there is a subtle difference in the case on hand and the case law discussed. I say this because, for the first respondent to succeed in her endeavour of staking a claim over the properties of Kuttikrishnan Nair, the law mandates that there should ``` O.P.(C)No.191/2023 ``` ``` -:12:- ``` be proof of marriage between the first respondent’s mother and Kuttikrishnan Nair. 14. In a case of identical circumstances, this Court in **Prabhavini Devi &Anr. v. Sudha & Ors.** [2017 (2) KHC 452] held thus: “12. In the light of the decisions referred above, the principle that can be culled out from the aforesaid decisions is that an illegitimate child is entitled to inherit to the estate of the father only if the marriage of the parents was null and void, as provided under S.11 of the Act. Needless to say, a marriage either void or voidable is required to claim right of succession under S.8 of the Hindu Succession Act. In other words, if there is no marriage, even if it is proved that the child is born out of the relationship between a male and a female Hindu, the child is not entitled to legal heirship with respect to the property of the father. When applying the aforesaid proposition, the question to be considered is, whether the plaintiffs have succeeded in proving that the second plaintiff is the wife of the deceased Karunakaran Nair? Put it differently, the question is, whether the plaintiffs succeeded in proving that Karunakaran Nair married the second plaintiff, in accordance with the Hindu Customary Law, as claimed by the plaintiffs.” [emphasis supplied] 15. A reading of Ext P10 order reveals that the court below has taken a diametrically opposite view then ``` O.P.(C)No.191/2023 ``` ``` -:13:- ``` what is laid down in **Prabhavini Devi** (supra), by holding that even if the marriage is not proved, once the petitioner is able to establish the paternity, she is likely to succeed in the suit for partition. 16. The above finding, is palpably erroneous and unsustainable in law. The court below has failed to consider the scope of DNA profiling in the context of the present case, and has exceeded its bounds of authority and power by passing the impugned order, which if not corrected now will cause irreparable injury and prejudice to the petitioner. 17. Viewing the facts and materials, in the above perspective and the backdrop of the law on the point, leads me to the irresistible conclusion that the impugned order warrants interference by this Court in exercise of its power of superintendence under Article 227 of the Constitution of India, by directing the matter to be reconsidered by the court below, especially when both sides had not raised the above questions of law before ``` O.P.(C)No.191/2023 ``` ``` -:14:- ``` the court below, now raised before this Court. Thus, without expressing anything on the merits of the findings rendered in Ext P10 order, I relegate the parties back to the court below, for the purpose of deciding whether the first respondent has made out a case for the court below to hold that there was a marriage between Kuttikrishnan Nair and the mother of the first respondent, so as to enable the first respondent to be conferred with the right to have a DNA profiling test. Resultantly, I allow the original petition as follows: - (i) Ext P10 order is set aside. - (ii) The Court of the Munsiff, Pattambi, is directed to reconsider I.A.No.669/2022, after adverting to the objections filed by the petitioner and the second respondent and law on the point, and then decide the above application, in accordance with law and as expeditiously as possible. - (iii) As the first respondent is an octogenarian, the court below shall make an endeavour to ``` O.P.(C)No.191/2023 ``` ``` -:15:- ``` dispose of O.S.No.225/2017 also, as expeditiously as possible and in accordance with law. Sd/- ## **C.S.DIAS,JUDGE** DST/14.03.23 //True copy/ P.A.To Judge ``` O.P.(C)No.191/2023 ``` ## `-:16:-` ## `APPENDIX` - `PETITIONER EXHIBITS EXHIBIT P 1 TRUE COPY OF THE PLAINT DATED 30.10.2017 IN O.S. NO. 225/2017 ON THE FILE OF THE MUNSIFF - MAGISTRATE'S COURT, PATTAMBI.` - `EXHIBIT P 2 TRUE COPY OF WRITTEN STATEMENT DATED 29.9.2018 FILED BY THE DEFENDANTS IN O.S. NO. 225/2017 ON THE FILE OF THE MUNSIFF MAGISTRATE'S COURT, PATTAMBI.` - `EXHIBIT P 3 TRUE COPY OF I.A. NO. 669/2022 DATED 11.7.2022 FILED BY THE RESPONDENT HEREIN IN O.S. NO. 225/2017 ON THE FILE OF THE MUNSIFF MAGISTRATE'S COURT, PATTAMBI.` - `EXHIBIT P 4 TRUE COPY OF DEPOSITION OF PW1 ALONG WITH AFFIDAVIT IN O.S. NO. 225/2017 ON THE FILE OF THE MUNSIFF MAGISTRATE'S COURT, PATTAMBI` - `EXHIBIT P 5 TRUE COPY OF DEPOSITION OF PW2 ALONG WITH AFFIDAVIT IN O.S. NO. 225/2017 ON THE FILE OF THE MUNSIFF MAGISTRATE'S COURT, PATTAMBI.` - `EXHIBIT P 6 TRUE COPY OF DEPOSITION OF PW3 ALONG WITH AFFIDAVIT IN O.S. NO. 225/2017 ON THE FILE OF THE MUNSIFF MAGISTRATE'S COURT, PATTAMBI.` - `EXHIBIT P 7 TRUE COPY OF DEPOSITION OF PW4 ALONG WITH AFFIDAVIT IN O.S. NO. 225/2017 ON THE FILE OF THE MUNSIFF MAGISTRATE'S COURT, PATTAMBI.` - `EXHIBIT P 8 TRUE COPY OF DEPOSITION OF PW5 ALONG WITH AFFIDAVIT IN O.S. NO. 225/2017 ON THE FILE OF THE MUNSIFF MAGISTRATE'S COURT, PATTAMBI.` - `EXHIBIT P 9 TRUE COPY OF THE COUNTER STATEMENT DATED 10.10.2022 FILED IN I.A. NO. 669/2022 IN O.S. NO. 225/2017 ON THE FILE OF THE MUNSIFF - MAGISTRATE'S COURT, PATTAMBI.` - `EXHIBIT P 10 TRUE COPY OF ORDER DATED 21.12.2022 IN I.A. NO. 669/2022 IN O.S. NO. 225/2017 PASSED BY MUNSIFF - MAGISTRATE'S COURT, PATTAMBI.` - `EXHIBIT P 11 CERTIFIED COPY OF THE DOCUMENT MARKED AS EXHIBIT B1 IN THE SUIT BEING A NOTICE OF MARRIAGE UNDER SEC. 3 OF SEC. 4 OF MADRAS MARUMAKKATHAYAM ACT.` ``` RESPONDENTS’ EXHIBITS: NIL ```