SRI SHIVANNA vs SMT H S MANJULA
- Court
- Karnataka High Court
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R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 9 DAY OF JULY, 2026
BEFORE
THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
WRIT PETITION NO.7444/2022 (GM-CPC)
BETWEEN: .
SRI. SHIVANNA
S/O CHIKKANAIKA
AGED ABOUT 65 YEARS
R/AT HADYA VILLAGE
HULLAHALLI HOBLI
NANJANAGUD TALUK-571301
MYSURU DISTRICT.
…PETITIONER
(BY SRI. ANIL KUMAR S, ADV.,)
AND:
1. SMT. H.S. MANJULA
D/O SHIVANNA AND MAHADEVAMMA
AGED ABOUT 30 YEARS.
2. SRI. H.S. SOMESH
S/O SHIVANNA AND MAHADEVAMMA
AGED ABOUT 29 YEARS.
BOTH ARE R/AT HADYA VILLAGE
HULLAHALLI HOBLI
NANJANGUD TALUK -571301
MYSURU DISTRICT.
…RESPONDENTS
Digitally signed
by RUPA V
Location: HIGH
COURT OF
KARNATAKA
(BY SRI. SYED AKBAR PASHA, ADV., FOR
SRI. MAHANTESH S. HOSMATH, ADV., FOR R1 & R2)
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THIS W.P. IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO CALL FOR RECORDS.
DIRECTION AS THE CASE MAY BE TO QUASH THE ORDER
PASSED BY THE LEARNED I ADDL CIVIL JUDGE AND JMFC,
NANJANGUD ON INTERIM APPLICATION UNDER ORDER 26
RULE 10 OF CPC R/W SEC 45 OF EVIDENCE ACT IN
O.S.NO.690/2013 DTD. 17.02.2022 ALLOWING THE SAID I.A.
FOR APPOINTMENT OF COURT COMMISSIONER UNDER ANNX-G
& ETC.
THIS PETITION HAVING BEEN HEARD AND RESERVED ON
06.07.2026, COMING ON FOR PRONOUNCEMENT OF ORDER,
THIS DAY, THE COURT MADE THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
CAV ORDER
This writ petition is filed challenging the order dated
17.02.2022 passed by the I Additional Civil Judge and
JMFC, Nanjangud (for short ‘the Trial Court’) in
O.S.No.690/2013.
2. The brief facts leading to the filing of this
petition are that the respondents/plaintiffs have filed a suit
in O.S.No.690/2013 seeking the relief of partition and
separate possession. In the said suit, the
respondents/plaintiffs have filed an application under
Order XXVI Rule 10 of the Code of Civil Procedure, 1908
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(for short, ‘the CPC’) read with Section 45 of the Indian
Evidence Act, 1872 (for short the ‘Evidence Act’) seeking
to appoint a Court Commissioner to conduct blood analysis
of the plaintiff No.1 and the defendant No.1. The
petitioner/defendant No.1 filed objections to the said
application. The Trial Court considered the said
application and proceeded to pass the impugned order
allowing the same. Hence, this petition is filed.
3. Sri.Anil Kumar S., learned counsel appearing for
the petitioner submits that the Trial Court has passed the
impugned order without considering the material on record
and the law in its proper perspective. It is submitted that
there is no prima facie proof of relationship between the
petitioner/defendant No.1 and the respondents/plaintiffs,
which has not been considered by the Trial Court. It is
further submitted that the Trial Court has failed to
consider that the application is filed at a belated stage
after the evidence of the parties was concluded and the
same is impermissible. It is also submitted that the
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material documents produced show the name of the
petitioner/defendant No.1 as Shivanna, whereas the
school documents produced by the
respondents/defendants show the name of the father as
H.C.Shivanna, which clearly indicates that the petitioner is
not the father of the respondents/defendants. It is
contended that if the application for DNA test is allowed,
the same would be in violation of the right of privacy of
the petitioner/defendant No.1. Hence, he seeks to allow
the petition.
4. Per contra , Sri.Syed Akbar Pasha, learned
counsel for Sri.Mahantesh S.Hosmath, learned counsel
appearing for the respondents Nos.1 and 2 supports the
impugned order of the Trial Court and submits that the
Trial Court has considered the material on record in its
proper perspective and the same does not call for any
interference. It is submitted that the petitioner/defendant
No.1 has himself admitted in his cross-examination that he
is willing for the DNA test to ascertain the paternity,
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hence, there is no violation of privacy of the
petitioner/defendant No.1. In support of his contentions,
he placed reliance on the following decisions:
a) NARAYAN DUTT TIWARI Vs. ROHIT SHEKHAR
1
AND ANOTHER
b) MOHAMMED REFEEQ Vs. S.MOHAMMED
2
FAIROZ AHAMED AND OTHERS
c) SMT.JAYALAKSHMAMMA Vs. ANJINAPPA
3
(SINCE DEAD BY HIS LRS) AND ANOTHER
Hence, they seek to dismiss the petition.
5. I have heard the arguments of the learned
counsel for the petitioner/defendant No.1, the learned
counsel for the respondents/plaintiffs and perused the
material available on record. I have given my anxious
consideration to the submissions advanced on both the
sides.
1
(2012) 12 SCC 554
2
W.P.No.52855/2019 dtd 10.01.2024
3
R.F.A.No.2523/2007 dtd 13.06.2025
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6. The respondents/plaintiffs filed a suit for
partition and separate possession against the defendants
in O.S.No.690/2013. The respondents/plaintiffs filed the
said suit seeking partition in the property of the defendant
No.1 claiming to be the children of defendant No.1 and
their mother-Mahadevamma. The defendant No.1 and
other defendants filed written statement and additional
written statement denying the plaint averments by stating
that the respondents/plaintiffs are not the children of the
petitioner/defendant No.1 and that the
respondents/plaintiffs are born out of the wedlock between
Mahadevamma and one H.C.Shivanna. In the said suit,
the respondents/plaintiffs after the conclusion of evidence
and at the stage of arguments filed an application under
Order XXVI Rule 10 of the CPC read with Section 45 of the
Evidence Act, seeking to appoint a Court Commissioner in
order to conduct a scientific investigation i.e. blood
analysis for DNA identification between the plaintiff No.1
and the defendant No.1. The defendant No.1 filed
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objections to the said application. The Trial Court
considered the said application and proceeded to allow the
same on the ground that the DNA test would help
ascertain the biological relationship between the plaintiff
No.1 and the defendant No.1 and also that the defendant
No.1 himself has given his consent in the cross-
examination.
7. In order to appreciate the material on record
and the contentions raised by the learned counsels
appearing on both sides, it would be useful to refer to the
decision of the Hon’ble Supreme Court in the case of
CHATURBHUJ PRADHAN Vs. AMAR PRADHAN AND
4
ANOTHER , wherein it was held as under:
“4. Before us it is contended by CP that he
cannot be compelled to give DNA sample nor is
there an eminent need for the DNA test. Further,
there cannot be any adverse inference against him
under Section 114(h) of the Indian Evidence Act,
1872 at this stage. It is submitted that Amar’s civil
suit is barred by res-judicata. Per contra, it is
4
2026 INSC 600
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submitted on behalf of Amar that in view of the
continuous denial of paternity by CP, there is no
other recourse available to determine the question
of paternity and therefore it is in the interest of
justice. When the balance of interest between CP
and Amar is examined, the same is in favour of the
latter since there is no application of presumption
under Section 112 of IEA. The right of privacy in as
much as it is available to CP is not an absolute
right. Regarding the question of res judicata, the
same is submitted to be not applicable since the
previous proceedings under Section 125 CrPC were
instituted by the second respondent, though was
also for the benefit of Amar, and further that these
proceedings are summary in nature and do not
amount to a proper finding.
5. We now examine these competing claims. In
doing so, we must take notice of the controlling
judgments:
5
5.1 . ,
Goutam Kundu v. State of W.B
“26. 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 inquiry, 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
5
(1993) 3 SCC 418
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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.”
6
5.2 :
Dipanwita Roy v. Ronobroto Roy
“16. It is borne from the decisions rendered by
this Court in Bhabani Prasad Jena [Bhabani
Prasad Jena v. Orissa State Commission for
Women, (2010) 8 SCC 633 : (2010) 3 SCC (Civ)
501 : (2010) 3 SCC (Cri) 1053] and Nandlal
Wasudeo Badwaik [Nandlal Wasudeo Badwaik v.
Lata Nandlal Badwaik, (2014) 2 SCC 576 :
(2014) 2 SCC (Civ) 145 : (2014) 4 SCC (Cri) 65]
that depending on the facts and circumstances of
the case, it would be permissible for a court to
direct the holding of a DNA examination to
determine the veracity of the allegation(s) which
constitute one of the grounds, on which the party
concerned would either succeed or lose. There
can be no dispute, that if the direction to hold
such a test can be avoided, it should be so
avoided. The reason, as already recorded in
various judgments by this Court, is that the
legitimacy of a child should not be put to peril.”
(emphasis supplied)
5.3 Having considered extensively the previous
judgments, the following principles were
enunciated in Aparna Ajinkya Firodia v. Ajinkya
7
Arun Firodia :
6
(2015) 1 SCC 365
7
(2024) 7 SCC 773
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“43. Having regard to the aforesaid discussion,
the following principles could be culled out as to
the circumstances under which a DNA test of a
minor child may be directed to be conducted:
43.1. That a DNA test of a minor child is not to
be ordered routinely, in matrimonial disputes.
Proof by way of DNA profiling is to be directed in
matrimonial disputes involving allegations of
infidelity, only in matters where there is no other
mode of proving such assertions.
43.2. DNA tests of children born during the
subsistence of a valid marriage may be directed,
only when there is sufficient prima facie material
to dislodge the presumption under Section 112 of
the Evidence Act. Further, if no plea has been
raised as to non-access, in order to rebut the
presumption under Section 112 of the Evidence
Act, a DNA test may not be directed.
43.3. A court would not be justified in
mechanically directing a DNA test of a child, in a
case where the paternity of a child is not directly
in issue, but is merely collateral to the
proceeding.
43.4. Merely because either of the parties
have disputed a factum of paternity, it 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 based on such evidence, 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.
43.5. While directing DNA tests as a means to
prove adultery, the court is to be mindful of the
consequences thereof on the children born out of
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adultery, including inheritance-related
consequences, social stigma, etc.”
8
5.4 Ivan Rathinam v. Milan Joseph ,
“35. In the peculiar circumstances of this case,
this Court must undertake an exercise to ‘balance
the interests’ of the parties involved and decide
whether there is an ‘eminent need’ for a DNA
test. This pertains not simply to the interests of
the child, i.e. the Respondent, but also to the
interests of the Appellant.
36. On one hand, courts must protect the
parties' rights to privacy and dignity by
evaluating whether the social stigma from one of
them being declared ‘illegitimate’ would cause
them disproportionate harm. On the other hand,
courts must assess the child's legitimate interest
in knowing his biological father and whether
there is an eminent need for a DNA test.
…
46. When dealing with the eminent need for a
DNA test to prove paternity, this Court balances
the interests of those involved and must consider
whether it is possible to reach the truth without
the use of such a test.
47. First and foremost, the courts must,
therefore, consider the existing evidence to
assess the presumption of legitimacy. If that
evidence is insufficient to come to a finding, only
then should the court consider ordering a DNA
test. Once the insufficiency of evidence is
established, the court must consider whether
ordering a DNA test is in the best interests of the
parties involved and must ensure that it does not
cause undue harm to the parties. There are thus,
two blockades to ordering a DNA test : (i)
insufficiency of evidence; and (ii) a positive
finding regarding the balance of interests.”
(emphasis supplied)
8
2025 SCC Online SC 175
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5.5 All of the judgments referred to above were
recently followed by this bench in Nikhat Parveen
9
v. Rafique .It is clear from the above judgments
that when the Court is confronted with the
question whether or not to order a DNA test, the
only test to be satisfied is whether the result of the
DNA test is directly in issue and whether any other
evidence-on-record can substitute for the answer
that may be arrived at through this scientific
process. Also, whether it is in the best interest of
the parties and/or justice.”
8. It would further be useful to refer to the
decision of this Court in the case of MOHAMMED REFEEQ
referred supra at paragraphs 10 to 15 held as under:
“10. Now it is stated that the matter is set
down for defendants’ evidence. At this stage, the
plaintiff filed I.A.No.10 under Order 26 Rule 10A of
CPC seeking a direction for collection of blood
samples, to have DNA profiling and to have a
report which will throw much light about his
relationship the defendants. The said application
was allowed by the trial Court. The order is
challenged by defendant No.6.
9
2026 SCC Online SC 652
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11. It is pertinent to note that none of the
other defendants have challenged the said order.
The contention of learned counsel for the petitioner
is that defendant No.6 cannot be compelled to give
blood samples for the purpose of DNA profiling and
therefore, he placed reliance on the decision of the
Hon’ble Apex Court in Banarsi (supra).
12. In the case that was considered by the
Hon'ble Apex Court in Banarsi (supra), a direction
for DNA test was given for issuance of Succession
Certificate under Indian Succession Act. The said
order was set aside by the High Court and
ultimately, it was challenged before the Hon'ble
Apex Court. The Hon'ble Apex Court placed
reliance on its earlier decisions including Goutam
Kundu Vs. State of West Bengal, where it is held
that 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. Under such circumstances, it is held that
direction issued for DNA test by the trial Court is
unsustainable and the High Court has rightly set
aside the order of the trial Court.
13. In the present case, status of the plaintiff
as a member of the family is denied by the
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defendants. The plaintiff is not only claiming his
status as one of the member of the family, but he
is also claiming his right over the suit property. He
has lead evidence by stepping into the witness box
and subjected himself for cross-examination. He
also examined S. Mohammed Ummar who fostered
him and according to defendant No.6 who is the
biological father of the plaintiff. The said witness
categorically stated that he is not the biological
father of the plaintiff, but it was late L.P.Ghouse
Baig and late Umerabi were the parents of the
plaintiff.
14. It is stated that the plaintiff is not in a
position to produce the Birth Certificate pertaining
to him. Simply because the plaintiff could not
produce the Birth Certificate or any such
documents to prove his relationship with late
L.P.Ghouse Baig and Umerabi, his right to claim
the status as one of the family member of the
defendants, to claim his right as the son of late
L.P.Ghouse Baig and Umerabi and to claim share in
the suit property cannot be denied. The plaintiff
himself has taken the risk of seeking DNA profiling
to prove his contention that he is the son of late
L.P.Ghouse Baig through late Umerabi. Under such
circumstances, it cannot be said that the right of
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either the plaintiff or the defendants is violated in
any manner.
15. The Hon'ble Apex Court in a subsequent
decision in Narayan Dutt Tiwari (supra) considered
a similar situation where the petitioner before the
Apex Court denied the paternity of the respondent.
Under such circumstances, the Hon'ble Apex Court
called upon to furnish DNA lab report in a sealed
cover to maintain confidentiality. The Hon’ble Apex
Court considered the order passed by the High
Court and upheld the same. The High Court
considering the application for DNA test filed by
the applicant where the paternity was disputed by
his father who was the respondent, a distinction
was drawn between legitimacy and paternity of
child. It also observed that Section 112 of the
Evidence Act is intended to safeguard the interest
of the child by securing his or her legitimacy and
not the paternity. Right of the child to know the
truth of his or her origin was highlighted by stating
that the child is having a right to know his
biological roots through reliable scientific tests. It
is noticed that there is no bar for conducting such
DNA test and it will not in violation of the right to
life or privacy of a person. It will not amount to an
invasion of right to life. The High Court has also
noticed that the applicant was aged 29 years and
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he was capable of taking his decisions. Under such
circumstances, question of his welfare being
adversely affected did not arise. The Court also
noticed that even though it is the contention of the
respondent that there are other materials on
record to arrive at a decision regarding paternity or
otherwise, it is felt that there is strong prima-facie
case suggesting eminent need to issue direction for
DNA test. The Division Bench of High Court also
upheld the finding of the learned Civil Judge by
observing that the accuracy of DNA test was not
even imagined at the time when the law was
formulated. When a child seeks declaration
regarding his true paternity, Section 112 of the
evidence Act will not come in the way of passing
necessary orders. It also observed that, if the
prayer for DNA test is not accepted, the applicant
will suffer irreparable injury.”
9. It would also be useful to refer to the decision
of this Court in the case of SMT.JAYALAKSHMAMMA
referred supra at paragraphs 57 to 64 held as under:
“57. The counsel appearing for the appellant
in support of her contention seeking for DNA test
relied upon judgment passed by this Court in
W.P.No.112825/2019 dated 27.09.2024 and in this
judgment discussed judgment of
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M.V.Narayanaswamy and others V/s Sri.Suresh in
W.P.P.No.13491/2018 delivered on 14.02.2014 as
well as decision of co-ordinate bench and so also
the judgment of Apex Court in case of Narayana
Datta Tiwari V/s Rohit Shekhar and another
reported in 2012 SCC 554 a distinction was drawn
between legitimacy and paternity of the child since
counsel for the respondent argued more on the
distinction between legitimacy and paternity of the
child and so also taken note of Section 112 of
Indian Succession Act is intended to safeguard the
interest of the child by securing his or her
legitimacy and not the paternity.
58. It is also important to note that there is
no bar for conducting such DNA test and it is not in
violation of the right to life or privacy of a person
and also an observation is made that it will not
come out an invasion of right to life. This Court
also taken note of judgment of Aparna Ajinkya
Firodia’s case and also while discussing the same,
taken note of the principles laid down in the
judgment of Kamti Devi (Smt) and another V/s
Poshi Ram, reported in (2001) 5 SCC 311 wherein
also held that the result of genuine DNA test is
said to be scientifically accurate. Even that is not
enough to escape from the conclusiveness of
Section 112 of Act that is if a husband and wife
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living together during the time of conception but
the DNA test reveal that the child was not born to
the husband, the conclusiveness in law would
remain irrebuttable. This Court made detailed
discussion in a case of Aparna Ajinkya Firoidia and
even extracted paragraph No.24 of the judgment
wherein also an observation is made that it was
incumbent upon the plaintiff Nos.1 to first prove
that she was the wife of defendant No.1 by
adducing both oral and documentary evidence and
even after such evidence is led, the question
whether the plaintiff No.1 was the wife of
defendant No.1 or not, cannot be scientifically
established or if there is a doubt as to whether the
defendant No.1 had access to the plaintiff No.1 or
not and if the DNA test was the only route to
establish the truth, then Court may consider the
application filed by the parties. Having taken note
of the same also, it is very clear that if no
sufficient material available before the Court then
the Court can invoke the DNA test, but in case on
hand, the plaintiff examined P.W.1 to P.W.4 relying
upon the oral evidence as well as the documentary
evidence of sale deed executed by
Smt.Ammayamma in favour of one Keerthi and in
turn the very same Keerthi executed the sale deed
in favour of Ammayamma and these two sale
deeds were taken place in the year 1979 and
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1981. The Trial Court has not discussed more
anything about these two sale deeds whether this
sale deed between Ammayamma to whom the
plaintiff relies upon the evidence and also not
given definite finding whether Ammayamma which
the plaintiff relies is the mother of the defendant
since the defendant claims Ammayamma is the
wife of Ramaiah but plaintiff claims that plaintiff
and defendant are the children of Ammayamma
wife of Subbarayappa. When the issue is with
regard to whether they are the children of
Ammayamma wife of Subbarayappa, if DNA test is
conducted and the same would be scientifically a
conclusion can be made and sufficiently establish
the relationship between the parties since there is
a serious dispute between the parties in respect of
relationship between the plaintiff and defendant.
59. This Court also in the judgment taken
note of paragraph No.57 of the Aparna Ajinkya’s
case wherein Apex Court considered the
presumption under Section 112 and 114 of
Evidence Act. This Court also comes to the
conclusion that DNA test is not only a substantive
piece of evidence and the said DNA test will comes
to the aid of the petitioner in order to prove the
claim and also submission of the appellant’s
counsel is very clear that if DNA test evidence goes
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against the appellant they are out of Court and
when such submission is made, taken note of the
said fact into consideration.
60. This Court also in the judgment in
W.P.No.36322/2017 dated 05.04.2019 in a similar
set of facts when the relief is sought for DNA test
discussed in detail in paragraph No.13 and so also
in paragraph No.14 and considering the judgment
of Goutam Kundu V/s State of West Bengal
reported in 1993 (3) SCC 418 wherein it is held
that normally the Courts in India cannot order
blood test as a matter of course and also cannot
be entertained and unless there must be a strong
prima facie case in that the husband must
establish nonaccess in order to dispel the
presumption arising under Section 112 of the
Evidence Act. In the judgment also setting aside
the order of the Trial Court allowed to make
scientific investigation of the DNA profiling of blood
samples.
61. The High Court of Madras in
CRP.PD.No.646 of 2023 and CMP.No.5083 of 2023
taken note of judgment of Ashok Kumar case
reported in (2022) 1 SCC 20 wherein also even
discussed the case of Ajinkya Firodia’s case and in
paragraph No.10 discussed the DNA test is only to
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ascertain whether the plaintiffs are born to
Arimuthu and thereby whether they are entitled to
a share in the properties, by way of partition. It is
observed that with the advancement of the
technology, it is now possible for getting such a
finding by sibling DNA test. In the said judgment
discussion was made with regard to the Narayan
Dutt Tiwari case reported in (2012) 12 SCC 554
wherein is also observation is made that the DNA
test ordered is only of siblings who are not minors
and also observation is made that Courts power to
order DNA test has not been totally shut out and
also an observation is made that unless the
petitioners are able to establish through the sibling
DNA test that they are also children of late
Arimuthu, they would not be in a position to
successfully claim their legitimate share in the suit
for partition.
62. The counsel for the respondent mainly
relies upon the case of Ashok Kumar V/s Raj Gupta
and others wherein discussion was made with
regard to Section 101 to Section 103 and Section
112 and presumption as to legitimacy of child
wherein also discussion was made with regard to
the timing of the application is equally relevant.
The plaintiff has already led evidence from his side
to prove relationship between the parties and at
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this stage whether the High Court should have
directed the plaintiff to undergo the DNA test and
in paragraph No.11 discussion was made that
where other evidence is available to prove or
disprove the relationship, the Court should
ordinarily refrain from ordering blood tests. This is
because such tests impinge upon the right of
privacy of an individual and could also have major
societal repercussions and also discussion was
made with regard to Section 112 and also
discussed in paragraph No.14 that possibility of
stigmatizing a person as a bastard, the ignominy
that attaches to an adult who, in the mature years
of his life is shown to be not the biological son of
his parents may not only be a heavy cross to bear
but would also intrude upon his right of privacy. No
doubt the Apex Court in detail discussed in this
judgment with regard to asking for subjecting the
plaintiff to a DNA test and in the case on hand the
issue is involved between the parties with regard
to proving of sibling test and not the question of
right of privacy and test is sought for the purpose
of determining the legitimate claim of the plaintiff.
No doubt the counsel appearing for the respondent
relies upon the judgment of Aparna Ajinkya
Firodia’s case which I have also taken note of while
discussing the consideration of DNA test in the Writ
Petition which has been disposed of by this Court
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wherein also principles summarized for conducting
of DNA test.
63. The counsel also relied upon the recent
judgment of Apex Court in case of Ivan Rathinam
V/s Milan Joseph wherein also discussion was
made with respect of article 21 and Section 112 of
evidence Act particularly issue No.1 displacing of
legitimacy and permitting a DNA test was
discussed in paragraph No.7 wherein cases of
Aparna Ajinka Firodia case, Ashok Kumar’s case
and Goutam Kundu’s case were also discussed and
also discussed regarding paternity and not
legitimacy and this Court already made discussion
with regard to factual aspects of the case on hand
and here is a case for testing of sibling test for the
purpose of arriving for a conclusion regarding
relationship between the parties and not the
question of right of privacy and also in paragraph
No.47 discussed in the judgment also that Courts
must therefore consider the existing evidence
assess the presumption of legitimacy and if that
evidence is insufficient to come to a finding, only
then should be consider ordering for a DNA test.
Once the insufficiency of evidence is established,
the Court must consider whether ordering a DNA
test is in the best interest of the parties involved
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and must ensure that it does not cause undue
harm to the parties.
64. Having considered the principle, it is very
clear that in the case on hand only for the purpose
of deciding the issue of plaintiffs whether they are
entitled for claim in the suit schedule property has
a share the issue is involved and also plaintiff is
ready to take the result of DNA test and also
submission of the counsel is very clear that if
report goes against the plaintiffs, plaintiffs will be
out of the Court and when such submission is
made and issue involved between the parties is not
in respect of right of privacy and only with respect
to test of siblings as well as consideration of
legitimate claim of the plaintiff for a share in the
property. Hence, I do not find any force in the
contention of the counsel appearing for the
respondent that there cannot be any order of DNA
test and the reasons assigned in the application
filed by the appellant is very clear only for the
purpose of determining the relationship as well as
legitimate claim going to take DNA test. Under
these circumstances, the appellant made out the
case to allow the application. Hence, I answer the
Point No.2 as Affirmative.”
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10. The aforesaid enunciation of law by the Hon’ble
Supreme Court and this Court can be outlined as follows:
a) It is to be satisfied by the Court that the result of the
DNA test is directly in issue to adjudicate the dispute.
b) The test for DNA analysis to ascertain paternity is a
sensitive exercise to be carried out exceptionally
keeping in mind the welfare of the parties.
c) The stigma or sensitivity around the DNA test is with
regard to the chastity of the mother and the
legitimacy of birth of the child.
d) There is a distinction between paternity and
legitimacy and though Section 112 of the Evidence
Act, aims to protect the legitimacy of the child, there
can be no bar to ascertain the paternity of the child
using scientific methods, specially when the child
himself/herself is seeking to know his biological roots
in order to make a claim in a partition suit and the
same will not amount to invasion of the privacy of
the person.
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e) The DNA test can be ordered to prove the legitimacy
of a claim of the parties in a dispute only if there is a
finding to the effect that the evidence produced is
insufficient to prove the same, scientific opinion
would aid the Court in deciding the controversy in
the case and that the test would not cause undue
harm to the parties.
f) The order for conducting a DNA test shall be made
considering the facts and circumstances on a case to
case basis, keeping in mind the aforesaid broader
guidelines and the same must not be ordered in a
mechanical manner.
11. In the instant case, the /plaintiffs have clearly
averred in the plaint that they are the children of the
defendant No.1 and the defendant No.1, in the written
statement has categorically denied the said assertion. It is
to be noticed that the evidence adduced by the witnesses
put a cloud over the paternity of the
respondents/plaintiffs. The depositions of PW-2 and PW-3
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states that the defendant No.1 and the mother of the
respondents/plaintiffs have got married and the
respondents/plaintiffs are the children born to them,
whereas the deposition of the PW-3 in his cross-
examination states that the father of the
respondents/plaintiffs is Shivanna from Hommaragalli
Village, whereas the defendant No.1 is from Hadiya
Village. Furthermore, the respondents/plaintiffs have filed
the statement of objections in this petition and produced
the marks card of the respondent No.1, Aadhar Card and
Voter ID of the respondent No.2, marks card of the
respondent No.2, caste certificate of the respondents and
the deposition of the petitioner/defendant No.1 in the
evidence. A perusal of the documents produced indicates
that the father of the respondents/plaintiffs is
H.C.Shivanna, whereas the petitioner/defendant No.1 is
claiming to be Shivanna. Hence, it is clear that the
evidence adduced is insufficient to ascertain the biological
relationship between the petitioner/defendant No.1 and
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the respondents/plaintiffs. It is further to be noticed that
the DNA test is sought by the respondents/plaintiffs
themselves, hence, the question of invasion of privacy or
causing stigma towards their legitimacy does not arise.
Furthermore, the defendant No.1, in his cross-examination
has clearly deposed that he is willing to take the DNA test,
hence, after giving such consent in the evidence, he
cannot now contend that the same amounts to invasion of
his privacy.
12. It is also required to be noticed that the suit is
filed by the respondents/plaintiffs seeking partition of the
property belonging to the petitioner/defendant No.1
claiming to be his children, hence, the issue with regard to
the paternity of the respondents/plaintiffs is foundational
to decide the suit of partition. Hence, the Trial Court has
rightly allowed the application seeking to appoint the Court
Commissioner to conduct a DNA test and ascertain the
biological relationship between the plaintiff No.1 and the
defendant No.1, which does not call for any interference.
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13. However, I am of the considered view that in
view of the law laid down by the Hon’ble Supreme Court in
the case of NARAYAN DUTT TIWARI referred supra , the
DNA test is required to be conducted by the appointed
Court Commissioner and the result is required to be placed
before the Trial Court in a sealed cover in order to
maintain confidentiality.
14. For the aforementioned reasons, I proceed to
pass the following:
ORDER
(i) The writ petition is disposed of.
The impugned order dated 17.02.2022 passed
(ii)
in O.S.No.690/2013 by the I Additional Civil
Judge and JMFC, Nanjangud, is upheld and
modified to an extent of producing the DNA test
report in a sealed cover.
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(iii) The Trial Court is directed to ensure that the
result of the DNA test conducted by the Court
Commissioner is placed before it in a sealed
cover.
Sd/-
(VIJAYKUMAR A. PATIL)
JUDGE
RV
List No.: 2 Sl No.: 1