IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD WEDNESDAY, THE EIGHTH (8TH) DAY OF JUNE, TWO THOUSAND AND ELEVEN Present: HON’BLE SRI JUSTICE G.V.SEETHAPATHY Civil Revision Petition No.1142 of 2009 Between: Midde Ramakrishna … Petitioner And: Midde Rama Pullaiah … Respondent HON’BLE SRI JUSTICE G.V.SEETHAPATHY Civil Revision Petition No.1142 of 2009 ORDER: This revision petition is directed against the order dated 02.02.2009 in IA No.321 of 2008 in OS No.164 of 2007 on the file of the I Additional Senior Civil Judge, Nandyal, wherein, the said application filed by the petitioner herein under Section 151 CPC seeking a direction to the plaintiff and defendant to undergo DNA test for the purpose of confirming paternity, was dismissed. 2. Heard both sides. Perused the record. 3. The petitioner herein filed suit OS No.164 of 2007 for declaration that the plaintiff is entitled for half share in the plaint schedule property and for partition of the same into two equal shares and separate possession of one such share and for mesne profits. According to the plaintiff, he is the only son of the defendant and the plaint schedule properties are the ancestral joint properties of plaintiff and defendant and being a coparcener, is entitled for half share. The defendant filed written statement contending that one Midde Ramana had two wives viz., Santemma and Pitchamma. He had four daughters through first wife and one son through second wife. Midde Ramakka, one of the daughter and son alone are alive. The defendant further contends that he married one Midde Maddamma and she left him within one month of marriage attributing impotency to the defendant and defendant filed OP No.11 of 1981 on the file of the Subordinate Judge, Nandyal for divorce and the same was ordered on 22.04.1981. He further contends that he had no issues through the said Maddamma. He further alleges that Maddamma gave birth to the plaintiff through her paramour at Hyderabad and so, the plaintiff is not his son. Thus paternity of the plaintiff is disputed. During the course of trial, plaintiff filed IA No.321 of 2008 under Section 151 CPC seeking a direction that the plaintiff and the defendant shall undergo DNA test to determine paternity. The respondent filed counter opposing the same, inter-alia contending that the defendant cannot be directed to undergo DNA test under compulsion, as the same amounts to violation of Article 23 and 21 of the Constitution. 4. Learned Additional Senior Civil Judge, Nandyal by impugned order dismissed the application following the decision in ‘S.Thangavelu v. Kannammal’ (AIR 2005 Madras 106) wherein it was held that the petition filed for seeking DNA test with a delay of 14 years cannot be entertained. 5. The plaintiff claimed to be the son of the defendant. The defendant disputed the same and contended that his marriage with Maddamma was dissolved by decree of divorce granted on 22.04.1981 in OP No.11 of 1981 and subsequently, the plaintiff was born to Maddamma through her paramour at Hyderabad. He further contended that the plaintiff’s mother Maddamma deserted the defendant within one month after the marriage and shifted to Hyderabad. Subsequently, neither Maddamma nor the plaintiff never turned up. The paternity of the plaintiff is thus in issue and his claim for partition and separate possession of half share in the plaint schedule would depend on the findings to be recorded on the said issue. The trial of the suit is in progress and the evidence is being recorded. 6. Section 112 of the Evidence Act contains presumption regarding legitimacy of a child born during wedlock, which reads as follows: “112. 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 eight days after its 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.” The expression ‘conclusive proof’ is defined in Section 4 of the Evidence Act in the following terms: “4. ‘Conclusive proof’ – when one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it”. 7. A combined reading of the above two provisions would make it clear that a child born through valid marriage should be deemed to be a legitimate child except where it is shown that the parties to the marriage had no access to each other at any time when the child could have been begotten or within 280 days after dissolution of the marriage and the mother remained unmarried, which is of course a rebuttal presumption and it can always be displaced by adducing evidence by the person questioning legitimacy. The question as to whether or not there was divorce between defendant and Maddamma in 1981 as alleged by the defendant and whether or not the defendant and Maddamma had no access to each other at the time the plaintiff could have been begotten or within 280 days after the dissolution of the marriage and whether or not there was no possibility for the plaintiff to born to the defendant through Maddamma, are all matters to be considered by the trail Court on evidence. 8. In ‘Goutam Kundu v. State of West Bengal[1]’, the apex Court while dealing with the paternity of the child in the context of Section 112 of the Evidence Act, held as follows: “…..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 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.” 9. Subsequently in ‘Sharda v. Dharmpal[2]’, the apex Court while considering the above decision in Goutham Kundu’s case (supra), held that the ratio laid down therein is not an authority for the proposition that under no circumstances the court can direct blood tests to be conducted. Summing up, it was held that as follows: “1. A matrimonial court has the power to order a person to undergo medical test. 2. Passing of such an order by the court would not be in violation of the right to personal liberty under Article 21 of the Indian Constitution 3. However, the court should exercise such a power if the applicant has a strong prima facie case and there is sufficient material before the court. If despite the order of the court, the respondent refuses to submit himself to medical examination, the court will be entitled to draw an adverse inference against him.” 10. In ‘Banarsi Dass v. Teeku Dutta[3]’, the apex Court while dealing with the issue as to whether a person disputing paternity of the child can seek DNA test, in paras 9 and 10 it was held as follows: “In matters of this kind the court must have regard to Section 112 of the Evidence Act. This section is based on the well- known maxim pater est quem nuptiae demonstrant (he is the father whom the marriage indicates). The presumption of legitimacy is this, that a child born of a married women is deemed to be legitimate, it throws on the person who is interested in making out the illegitimacy, the whole burden of proving it. The law presumes both that a marriage ceremony is valid, and that every person is legitimate. Marriage of filiation (parentage) may be presumed, the law in general presuming against vice and immorality. It is rebuttable presumption of law that a child born during the lawful wedlock is legitimate, and that access occurred between the parents. This presumption can only be displaced by a strong preponderance of evidence, and not by a mere balance of probabilities.” It was further held as follows: “DNA test is not to be directed as a matter of routine and only in deserving cases such a direction can be given, as was noted in Goutam Kundu's case (supra). Accordingly, the direction for DNA test as was given by the trial court was held clearly unsustainable and the High Court has rightly set it aside.” 11. In ‘Kamti Devi v. Poshi Ram[4]’, the apex Court while considering the scope of Section 112 of the Evidence Act held as follows: "Section 112 which raises a conclusive presumption about the paternity of the child born during the subsistence of a valid marriage, itself provides an outlet to the party who wants to escape from the rigour of that conclusiveness. The said outlet is, if it can be shown that the parties had no access to each other at the time when the child could have been begotten the presumption could be rebutted. In other words, the party who wants to dislodge the conclusiveness has the burden to show a negative, not merely that he did not have the opportunity to approach his wife but that she too did not have the opportunity of approaching him during the relevant time. The result of a genuine DNA test is said to be scientifically accurate. But even that is not enough to escape from the conclusiveness of Section 112 of the Act, e.g., if a husband and wife were living together during the time of conception, but the DNA test revealed that the child was not born to the husband, the conclusiveness in law would remain unrebuttable. This may look hard from the point of view of the husband who would be compelled to bear the fatherhood of a child of which he may be innocent. But even in such a case the law leans in favour of the innocent child from being bastardized if his mother and her spouse were living together during the time of conception." 12. This Court in ‘Buridi Vanajakshmi v. Buridi Venkata Satya Varaha Prasad Gangadhar Rao[5]’ while dealing with the question whether a party to divorce proceedings can be compelled to undergo medical tests to determine the paternity of the child and after noticing the above decision of the Apex Court up-held the order permitting the application filed by the husband seeking direction to the wife to undergo DNA test on the ground that in Sharda’s case (supra), the Apex Court held that the right to privacy in terms of Article 21 of the Constitution is not an absolute right. It was further observed that ‘if there were a conflict between the fundamental rights of two parties, that right which advances public morality would prevail. 13. It is to be noted that in the above case, the issue arose in the matrimonial proceedings between husband and wife and in the course of cross-examination, the wife stated no objection for subjecting herself to the DNA test. She therefore gave consent to undergo DNA test. In Gautam Kundu’s case (supra), the apex Court observed that no one can be compelled to give sample of blood for analysis. The apex Court also held that there must be a strong prima-facie case in that the husband must establish non- access in order to dispel the presumption arising under Section 112 of the Evidence Act. The presumption contained in Section 112 of the Evidence Act operates in favour of the plaintiff in the sense that it presumes legitimacy of child. The burden squarely lies on the defendant to rebut the said presumption by showing non-access during relevant period. The plaintiff cannot therefore compel the defendant to undergo DNA test, that too in a bid to gather evidence in support of his claim. Though the court has power to order a person to undergo a medical test and such an order would not be in violation of right to personal liberty under Article 21 of the Constitution, the Court should, however, exercise such a power, if the applicant has strong prima-facie case and there is sufficient material before the court, as held by the apex Court in Sharda’s case (supra). 14. In the present case, there is no such prima-facie case nor sufficient material warranting exercise of power to order medical examination in the form of DNA test to the parties and the application filed by the plaintiff is only in the nature of roving enquiry seeking to gather evidence in support of his claim. The impugned order dismissing the application does not therefore call for any interference. 15. In the result, the civil revision petition is dismissed. No order as to costs. ___________________ G.V.SEETHAPATHY, J Date: 08.06.2011 bss [1] AIR 1993 SC 2295 [2] (2003)4 SCC 493 [3] 2005(4) ALT 7 (SC) [4] AIR 2001 SC 2226 [5] 2010(4) ALT 441