ORDER
Heard Sri.P.T.Muralidhar, learned counsel appearing for petitioner. Perused the case papers.
2. Petitioner is the 1stdefendant in O.S.92/2011. Respondent/plaintiff has filed the suit against writ petitioner and four others for the relief of partition and separate possession in respect of suit schedule property. Writ petitioner who has appeared in the suit filed his written statement and has denied the relationship with plaintiff and has contended that she is not the daughter born to 1st defendant. On account of such plea having been raised by 1stdefendant, he wants a DNA test to be conducted on
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plaintiff and as such application under Order XXVI Rule 9 read with Section 151 of CPC came to be filed which has been dismissed by trial court which is impugned in the present writ petition.
3. Defendant having taken a contention that plaintiff is daughter of Sri.Thimma Shetty (brother of 1stdefendant) and he is not the biological father of plaintiff burden is on the 1stdefendant to discharge the said burden. There being no material placed by 1stdefendant in this regard he cannot resort to collection of evidence indirectly and that too by DNA test. Apex Court in the case of Goutam Kundu Vs State of West Bengal and anr reported in AIR 1993 SC 2295 at paragraph 26 has held to the following effect:
"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.
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(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."
4. It is the specific case of the plaintiff that she is the daughter born out of wedlock between 1stdefendant and Smt.Kamalamma which has been refuted by 1stdefendant and as such burden is on the 1stdefendant to prove the same. Trial court has rightly held that in the instant case plaintiff has produced enough material to indicate that she is daughter of defendant No.1 but on the contrary defendant has not rebutted the said evidence by any contra material but has filed application in question by relying upon
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unreported Judgment of this court rendered in the case of Sri.Hanumappa Vs Yallakka and others rendered in W.P.8815/2014(GM-CPC). Apex Court in the case of Dharam Deo Yadav Vs State of Uttar Pradesh reported in (2014) 5 SCC 509 it has been held that parties to suit cannot be subjected to DNA analysis as a matter of course. As such trial court was fully justified in rejecting the application. No error having committed by trial court, I find no merit in this writ petition. Writ petition stands dismissed. SD/-
JUDGE
SBN
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