The Judgment of the court was delivered by

A.N Venugopala Gowda, J.:— The petitioner married the 2nd respondent according to Hindu rites. They have not led a peaceful married life. Petitioner filed M.C No. 14/1980 on the file of Civil Judge, Chikamagalur, against the 2nd respondent under Section 13(1)(i)(b) of the Hindu Marriage Act (for short ‘the Act’) 1955, seeking decree of divorce. The petition was dismissed on 24.9.1985 as not pressed. The 2nd respondent filed M.C No. 2/1988 under Section 9 of the Act. After trial, the petition was allowed and a decree for restitution of conjugal rights was passed on 31.7.1989

2. The 1st respondent, a minor, has filed O.S No. 189/2004 through her mother and natural guardian, for passing a decree to pay maintenance amount at the rate of Rs. 2,000/- per month. The petitioner/defendant has filed written statement inter alia contending that, plaintiff is not his son, is an orphan and has been brought up by the 2nd respondent and he is not liable to pay the maintenance.

3. Issues having been framed, trial has taken place. The 2nd respondent has deposed as P.W 1. Three other witnesses have also been examined. The petitioner has deposed as D.W 1 and he has also examined four other witnesses. Both parties have produced documents, which have been marked. Ex. PI is a certificate issued by the Head Master, Jnanavahini Higher Primary School, Ramagiri 577, 539 with regard to the admission to the school of the 1st respondent/plaintiff and Ex. P. 2 is a certificate issued by the school with regard to discontinuance of education by the plaintiff from the school. Both records show the petitioner to be the father of the plaintiff. The petitioner filed LA. No. 12 in the suit under Order 26, Rule 1 OA, CPC for conducting medical examination by a gynaecologist to ascertain as to whether Smt. Sulochanamma, his wife, is capable of giving birth to any child. The said application was dismissed on 4.3.2009 and was challenged in W.P No. 12343/2009, which was dismissed on 18.06.2009

4. The petitioner filed LA. No. 19 under Order 26, Rule 1 OA, CPC to direct the parties to undergo DNA test by giving the blood sample before the competent authority to find out the true relationship between the parties. The said application was rejected by the trial Court on 8.1.2010 Feeling aggrieved, the defendant has filed this writ petition.

5. Sri B.K Manjunath, learned counsel appearing for the petitioner contended that, in view of the specific case of the petitioner that the 1st respondent was not born to him since there was no cohabitation between him and the 2nd respondent for more than 20 years and the 1st respondent being not the son of the petitioner, despite the readiness and willingness of the petitioner to pay maintenance to the 1st respondent/plaintiff, if it is proved by DNA test that, the child is born to the petitioner, the non-allowing of LA. No. 19 is irrational and illegal. Learned counsel contends that, to prove the legitimacy of the child, the only way is to refer the parties to undergo DNA test. Learned counsel submits that, the proof of legitimacy is a pivotal issue and the claim of legitimacy of the 1st respondent has a far reaching effect and in the circumstances, by quashing the impugned order, LA. No. 19 may be allowed.

6. Smt. D.C Keerthi Prasad, learned counsel appearing for the respondents, in reply, contended that, there being no dispute with regard to solemnization of marriage of the petitioner with 2nd respondent and in view of the fact that the trial of the suit has taken place and both sides have lead voluminous evidence and also the rejection of LA. No. 12 and its upholding in W.P No. 12343/2009 with the finding that, it is for the petitioner to establish that there was no marital relationship, LA. No. 19 filed subsequently being untenable, has rightly been rejected.

7. The question that arise for consideration is:

Whether the trial Court was justified in not directing the parties to undergo DNA test?

8. To answer the question, it is necessary to notice the decisions of the Apex Court dealing with the power of the Court in directing the parties to undergo DNA test.

(i) In Goutam Kunda v. State of West Bengal, (1993) 3 SCC 418, the Apex Court while considering a matter arising out of maintenance for child claimed by the wife, wherein the husband disputed the paternity of the child and had prayed for blood group test of the child to prove that he was not the father of the child, it has been held as follows:

(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.

(Emphasis supplied)

(ii) In Sharda v. Dharmpal, (2003) 4 SCC 493, the case arose out of an application for divorce filed by the husband against the wife under Section 13(1)(iii) of the Act, on the ground that, the wife has been incurably of unsound mind or has been suffering from mental disorder. The point decided was, whether a party to the divorce proceedings can be compelled to a medical examination. It has been held as follows:

“39. Goutam Kundu's case is, therefore, not an authority for the proposition that under no circumstances the Court can direct that blood tests be conducted. It having regard to the future of the child, has, of course, sounded a note of caution as regard mechanical passing of such order. In some other jurisdictions, it has been held that such directions should ordinarily be made if it is in the interest of the child.”

(iii) In Banarsi Dass v. Teeku Dutta, (2005) 4 SCC 449, the allegation was that, Teeku Dutta was not the daughter of the deceased and an application was made to subject Teeku Dutta to DNA test. The High Court had held that, the trial Court being a testamentary Court, the parties should be left to prove their respeotive cases on the basis of the evidence produced during trial, rather than creating evidence by directing DNA test. While emphasizing that DNA test is not to be directed as a matter of routine and only in deserving cases such a direction can be given, it has been held as follows:

“13. We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancements with deoxyribonucleic acid (DNA) as well as ribonucleic acid (RNA) tests were not even in contemplation of the legislature. 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 Evidence 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 irrebuttable. 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 bastardised if his mother and her spouse were living together during the time of conception. Hence the question regarding the degree of proof of non-access for rebutting the conclusiveness must be answered in the light of what is meant by access or non-access as delineated above.”

(Emphasis supplied)

(iv) In Ramkanya Bai v. Bharatram, (2010) 1 SCC 85, wherein the High Court had directed DNA test of the child at the instance of the husband, while setting aside the order, it has been held that, High Court was not justified in allowing the application for grant of DNA test of the child.

(v) In Bhabani Prasad Jena v. Convenor Secretary, Orissa State Commission for Women, (2010) 8 SCC 633, the question-considered was as to whether the High Court was justified in issuing direction for DNA test of the child and the appellant who, according to the mother ‘the child’ was its father suo motu. It has been held as follows:

“21. In a matter where paternity of a child is in issue before the Court, the use of DNA test is an extremely delicate and sensitive aspect. One view is that when modern science gives the means of ascertaining the paternity of a child, there should not be any hesitation to use those means whenever the occasion requires. The other view is that the Court must be reluctant in the use of such scientific advances and tools which result in invasion of right to privacy of an individual and may not only be prejudicial to the rights of the parties but may have devastating effect on the child. Sometimes the result of such scientific test may bastardise an innocent child even though his mother and her spouse were living together during the time of conception.

22. In our view, when there is 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, the Court must exercise its discretion only after balancing the interests of the parties and on due consideration whether for a just decision in the matter, DNA test is eminently needed. DNA test in a matter relating to paternity of a child should not be directed by the Court as a matter of course or in a routine manner, whenever such a request is made. The Court has to consider diverse aspects including presumption under Section 112 of the Evidence Act: pros and cons of such order and the test of “eminent need” whether it is not possible for the Court to reach the truth without use of such test.”

(Emphasis supplied)

9. The petitioner is a teacher. On account of the matrimonial discard, the petitioner filed M.C No. 14/1980 on 13.11.1980 seeking decree of divorce on the ground of cruelty, which petition was dismissed on 24.9.1985 M.C No. 2/1988 filed by the 2nd respondent against the petitioner was allowed and a decree for restitution of conjugal rights was passed on 31.7.1989 The 2nd respondent, as the mother and natural guardian of 1st respondent, has filed O.S No. 189/2004 to pass a decree for payment of monthly maintenance to the minor child. The trial having taken place, both sides have produced oral and documentary evidence.

10. There is a strong presumption about the legitimacy of children born out of continuation of valid marriage. The law presumes against vice and immorality. In a civilized society, it is imperative to presume legitimacy of a child born during continuation of valid marriage. Section 112 of Evidence Act is based on presumption of public morality and public policy. It is for the petitioner to establish non-access in order to dispel the presumption arising under Section 112 of the Evidence Act.

11. LA. No. 12 filed by the petitioner under Order 26, Rule 1 OA, CPC to subject the mother and guardian of the plaintiff for conducting medical examination by a gynaecologist to find out whether she has given birth to the plaintiff was dismissed and the order, when challenged was upheld by this Court.

12. In the circumstances, LA. No. 19 filed in the trial Court being untenable, has rightly been rejected.

13. In the result, the writ petition is devoid of merit and shall stand dismissed with costs of Rs. 5,000/-. However, it is made clear that, it is for the trial Court to appreciate the evidence placed on its record by both the parties with regard to issue relating to paternity of the plaintiff.

14. The suit be decided expeditiously and at any event within four months, since the claim is for maintenance by a minor.