RadhaKrishnan v. Leela & Asha

**OP (FC).No.764 OF 2019** **1** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 18TH DAY OF FEBRUARY 2021 / 29TH MAGHA,1942** **OP (FC).No.764 OF 2019** **AGAINST THE ORDER IN I.A NO.1074/2019 IN OP 444/2014 OF FAMILY COURT, ATTINGAL** ## **PETITIONER:** **RADHAKRISHNAN AGED 67 YEARS** **S/O. BHARGAVAN, NAGARAJA BUILDING, KUMBARA STREET, DEVAHALLIL TOWN, BANGALORE RURAL DISTRICT,KARNATAKA** **BY ADV. SRI.B.S.SURESH (CHIRAKKARA)** ## **RESPONDENTS:** **1 LEELA, AGED 82 YEARS W/O. LATE BHARGAVAN, BHAMA NIVAS, CHEKKALAVILAKOM, KADAKKAVOOR,PIN-695 309** **2 ASHA, AGED 52 YEARS D/O. LEELA,BHAMA NIVAS, CHEKKALAVILAKOM, KADAKKAVOOR,PIN-695 309** **R1-2 BY ADV. SRI.J.S.AJITHKUMAR** **THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 18-02-2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP (FC).No.764 OF 2019** **2** ## **JUDGMENT** **Dated this the 18th day of February 2021** ## **C.S.Dias, J.** The original petition is filed challenging the order passed in I.A No.1074/2019 (Ext.P3) in O.P 444/2014 of the Family Court, Attingal, dismissing an application filed for conducting a DNA test. 2. The petitioner in this original petition had filed O.P. No.444/2014 seeking a declaration that he is the sole lineal decedent of late Bhargavan – his father and was born in the wedlock between Bhargavan and the 1[st] respondent - his mother. According to the petitioner, Bhargavan died intestate on 4.11.1998. Therefore, only he and his mother are the legal heirs of Bhargavan and he is entitled to half share in the petition schedule properties. It is his case that the 2[nd] respondent was born out of an illicit relationship between his mother - the 1st respondent **OP (FC).No.764 OF 2019** **3** and a third person. Therefore, the 2[nd] respondent is not entitled for a share in the properties of Bhargavan. In order to ascertain the paternity of the 2[nd] respondent, the petitioner wants her to be subjected to a DNA test, which would resolve the controversy in the case. Hence the application. 3. The application was vehementally opposed by the respondents, who filed a written objection refuting the allegations in the affidavit accompanying the application. According to the respondents, it was the 1[st] respondent – the mother of the petitioner and the 2[nd] respondent, who is the most competent person to speak about the paternity of the 2[nd] respondent. The 1[st] respondent has vouched the paternity of the 2[nd] respondent. The 2[nd] respondent was born in the wedlock between the 1[st] respondent and Bhargavan, while they were cohabiting as husband and wife. Bhargavan had acknowledged the paternity of the 2[nd] respondent, who is now aged **OP (FC).No.764 OF 2019** **4** 53 years. The sole intention of the petitioner is to demoralise and humiliate the respondents. 4. The Family Court, after relying on Section 112 of the Indian Evidence Act, 1872 and the law laid down by the Hon'ble Supreme Court in **Dipan Wita Roy V. Ronobroto Roy** [AIR 2015 SC 418], came to the conclusion that the DNA test sought for by the petitioner was totally unwarranted. Accordingly, the application has been dismissed. 5. Confronted with Ext.P3 order, the petitioner is before this Court. 6. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent. 7. Section 112 of the Indian Evidence Act reads as follows: **OP (FC).No.764 OF 2019** **5** “ **Birth during marriage, conclusive proof of legitimacy:-** The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after the dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.” 8. The Hon'ble Supreme Court and this Court have in a plethora of decisions held that a DNA test shall not be ordered in a routine and casual manner on the mere asking of the parties. 9. A Division Bench of this Court in **Sindhu v. Nagendra** [2019 (4) KHC 678], has succinctly laid down the law that the Courts are bound to consider whether a DNA test is eminently needed in a case or not. 10. The allegation put-forth by the petitioner in O.P.No.444/2014 is that he is the sole lineal decadent of Bhargavan and the 1[st] respondent. Neither did **OP (FC).No.764 OF 2019** **6** Bhargavan nor the the petitioner have a case that the 2[nd] respondent was not born during the subsistence of the marriage between Bhargavan and the 1[st] respondent. Going by the rigour of Section 112 of the Indian Evidence Act, it is conclusive proof that the 2[nd] respondent is the daughter of Bhargavan and the 1[st] respondent, unless the petitioner proves with cogent evidence that Bhargavan did not have access to the 1[st] respondent during their period of cohabitation. Is the petitioner competent to prove non-access between his parents, 53 years after the birth of the 2[nd] respondent, is doubtful. Moreover, the petitioner has named the alleged paramour of the 1[st] respondent to whom the 2[nd] respondent was allegedly born. Wisdom dawned on the petitioner to question the chastity of his mother and bastardise the 2[nd] respondent, only after the death of his father and after the succession opened. This casts a serious doubt in the bonafides of the claim. With such vague **OP (FC).No.764 OF 2019** **7** and nebulous accusations in the affidavit in support of the application, we hold that the petitioner cannot water down the rigour of Section 112 of the Indian Evidence Act. The entire onus of proof to prove that the 1[st] respondent did not have access to Bhargavan as provided under Section 112 of the Act is caste upon the petitioner. On the basis of wild and reckless accusations, the petitioner cannot seek to subject the 2[nd] respondent to DNA test. 11.We do not find any illegality or error in the impugned Ext.P3 order warranting interference by this Court in exercise of its supervisory jurisdiction as enshrined under Article 227 of the Constitution of India. In fact, this original petition deserves to be dismissed with exemplary costs, but we refrain from imposing taking note of the peculiar facts of the case. Nevertheless, we direct the Family Court to decide O.P. No.444/2014 on its merits, untrammelled observation made in this as by any judgment, **OP (FC).No.764 OF 2019** **8** expeditiously as possible, in accordance with law. The original petition is groundless and is consequently dismissed. **Sd/-** **A.MUHAMED MUSTAQUE JUDGE** **Sd/-** ma/19.2.2021 /True copy/ **C.S.DIAS JUDGE** **OP (FC).No.764 OF 2019** **9** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 THE COPY OF THE IA NO.1074/2019 IN OS 444/2014 DATED MARCH 2019** **EXHIBIT P2 THE COPY OF THE OBJECTION FILED BY THE RESPONDENTS DATED 27.4.2019 OF EXHIBIT P1 APPLICATION** **EXHIBIT P3 THE COPY OF THE ORDER IN IA NO.1074/2019 IN OS NO.444/2014 DATED 16.8.19**