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Gangadharappa v. Basavaraj .
Factual and Procedural Background
The petitioner is the father of the respondent, who is the plaintiff in O.S No. 26/92. The respondent instituted a suit against his father seeking partition and separate possession of his share in the coparcenary properties. The defendant resisted the suit on the ground that the plaintiff was not entitled to claim partition in the joint family properties since he was not born to him. Consequently, the defendant filed I.A No. 8 under Order 26, Rule 10A read with Section 151 of the Code of Civil Procedure (C.P.C.) for appointment of a Commissioner to conduct a blood test and genetic fingerprinting test to determine whether the plaintiff is his son. The plaintiff opposed this application on the basis that compelling him to undergo such tests violated Article 20(3) of the Constitution of India. The learned Munsiff upheld the plaintiff’s objection and rejected I.A No. 8.
Legal Issues Presented
- Whether Article 20(3) of the Constitution of India protects a party in a civil proceeding from being compelled to undergo a blood test or genetic fingerprinting test.
- Whether the trial court erred in rejecting the application for appointing a Commissioner to conduct the tests to determine the plaintiff’s parentage in a civil suit for partition.
Arguments of the Parties
Defendant's Arguments
- The plaintiff is not entitled to claim partition in the joint family properties as he was not born to the defendant.
- The defendant sought appointment of a Commissioner to conduct blood and genetic tests to establish the plaintiff’s parentage.
Plaintiff's Arguments
- The plaintiff contended that he could not be compelled to undergo blood and genetic tests as it violated Article 20(3) of the Constitution of India, which protects against self-incrimination.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Mallela Suryanarayana v. Vijaya Commercial Bank Ltd., AIR 1958 Ahdh Pra 756 | Clarification that Article 20(3) protection is confined to criminal proceedings and does not extend to civil proceedings. | The court relied on this precedent to hold that Article 20(3) does not protect a party in civil proceedings from being compelled to undergo tests. |
| R.P Ulaganambi v. K.C Loganayaki, 1986 Cri LJ 1522 | Same principle as above: Article 20(3) immunity applies only in criminal proceedings. | Supported the court’s view that immunity from testimonial compulsion under Article 20(3) does not apply in civil matters. |
Court's Reasoning and Analysis
The court examined the scope of Article 20(3) of the Constitution of India, which provides immunity against self-incrimination. It clarified that this protection applies exclusively to persons accused of an offence in criminal proceedings or proceedings of a criminal nature. The court referred to authoritative precedents from the Andhra Pradesh and Madras High Courts, which held that Article 20(3) does not extend to civil proceedings. Applying this principle, the court found that the learned Munsiff erred in rejecting I.A No. 8 on the ground that compelling the plaintiff to undergo blood and genetic tests violated Article 20(3).
Further, the court noted that under Hindu law, illegitimate sons living with their putative father do not constitute coparcenary, and the father cannot admit them as coparceners. Thus, the trial court should have allowed the application to enable the defendant to prove that the plaintiff was not born to him and thereby not entitled to partition.
Holding and Implications
The Revision Petition is allowed. The impugned order rejecting I.A No. 8 is set aside and the application is allowed. The trial court is directed to appoint a Commissioner for conducting the blood and genetic tests at the cost of the defendant. There is no order as to costs.
This decision directly affects the parties by permitting the defendant to establish parentage through scientific tests in a civil suit for partition. It clarifies that Article 20(3) protection against self-incrimination does not extend to civil proceedings, but the opinion does not establish any new precedent beyond this clarification.
1. Though the matter is listed for admission to-day, with consent of both the counsel, it is taken up for final disposal.
2. The petitioner is the father of the respondent. The respondent herein is the plaintiff in O.S No. 26/92. He has instituted the said suit against his father for partition and separate possession of his share in the coparcenary properties.
3. The defendant has resisted the said suit on the ground that the plaintiff is not entitled to claim partition in the joint family properties since he was not born to him. Therefore, he filed I.A No. 8 under Order 26, Rule 10A r/w Section 151, C.P.C for appointment of a Commissioner for purpose of blood test and genetic finger printing test of the plaintiff to find out whether he is his son. The said application was resisted by the plaintiff on the ground that he could not be compelled to undergo the test as it was violative of Article 20(3) of the Constitution of India. The learned Munsiff having upheld the said objection rejected the said I.A
4. In my view the impugned order is erroneous and is liable to be set aside for the following reasons: clause (3) of Article 20 of the Constitution of India deals with Accused's immunity from being compelled to be a witness against himself. This clause gives protection to (i) to a person ‘accused of an offence’;
(ii) against compulsion ‘to be a witness’, (iii) against himself. Therefore, it is clear from clause (3) of Article 20 that the protection under this clause is confined to criminal proceedings or proceedings of criminal nature before a Court of law or other Tribunal before whom a person may be accused of an ‘offence’ as defined in Section 3(38) of the General Clauses Act. It would not, therefore, extend to parties and witnesses in civil proceedings or proceedings other than Criminal. In Mallela Suryanarayana v. Vijaya Commercial Bank Ltd., AIR 1958 Ahdh Pra 756 and R.P Ulaganambi… v. K.C Loganayaki…., 1986 Cri LJ 1522 the High Court Andhra Pradesh and the High Court of Madras respectively have taken the view that the immunity granted by Article 20(3) of the Constitution of India does not extent to civil proceedings and the intendment of this Article is to afford some protection to a person involved in a crime, having regard to the predicament in which he would be placed and to interpret it as applying to all proceedings civil or criminal which might at a subsequent period expose the person concerned to prosecution on the basis of answers given by him, is to enlarge the scope of this Article and to defeat justice. Therefore, in my view, the learned Munsiff was not at all right in dismissing I.A No. 8 on the ground that the prayer made therein amounted to testimonial compulsion violative of Article 20(3).
5. Under Hindu Law illegitimate sons living together with their putative father do not constitute coparcenary and father has no power to admit them as his coparceners. In my considered view, the trial Court in order to enable the defendant to prove that the plaintiff was not born to him and he is not entitled to claim partition in the suit properties ought not to have rejected I.A.S
6. For the foregoing reasons, this Revision Petition is allowed. The impugned order on I.A No. 8 is hereby set aside I.A No. 8 is allowed and the trial Court shall appoint a Commissioner for the purpose mentioned therein at the cost of the defendant. There shall be no order as to costs.
7. Petition allowed.
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