O R D E R
Heard Sri.K Vara Prasad, learned Counsel appearing for petitioners.
2. Application filed by the plaintiffs in OS No.2572/2005 under Section 75(e) read with Order 26 Rule 10A of CPC and Section 45 of the Evidence Act, seeking for a direction to the first defendant Sri.Krishnappa, S/o Rayappa to make himself available for DNA test for the purpose of determining the relationship and paternity of one Sri Rayappa with the plaintiffs and first defendant, having been dismissed is called in question. Petitioners are claiming share in the suit schedule property by filing the suit OS No.2572/2005 and on account of relationship having been denied by the first defendant, plaintiffs sought for a direction from the Court that first defendant should make himself available for DNA test.
3. Section 112 of the Evidence Act, 1872 clearly indicates that any person born during the continuance of a valid marriage between a woman and a man or within two hundred and eighty days after its dissolution, if the woman is unmarried during this period would be a conclusive proof
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that a person claiming to be born out of the said wedlock to be the legitimate son, unless it could be shown by rebuttal evidence that parties to the marriage had no access to each other at any time when the son/daughter could have been born.
4. Hon'ble Apex Court in the case of Goutam Kundu Vs State of West Bengal and another reported in AIR 1993 SC 2295, has held that if a person born during the continuance of valid marriage between his mother and any man, would be conclusive proof that he is the legitimate son born out of such marriage. In other words, presumption would arise as to the legitimacy of the child. It has also been held by the Apex Court in said judgment that 'Courts in India' cannot order blood test as a matter of course, wherever applications are made for such prayer, until and unless there is a strong prima facie case. It has been held by the Hon'ble Apex Court 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 enquiry,
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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.
5. Keeping the dicta laid down in the judgment referred herein above, when facts and circumstances of the case is examined, it would indicate that defendants and plaintiffs have not placed any material, prima facie to indicate relationship as such. Hence, trial Court has refused to grant the prayer sought for by the petitioners-plaintiffs. There is no error committed by the Trial Court, which calls for interference. No good grounds to entertain this writ petition.
Consequently, Writ Petition is hereby dismissed. SD/-
JUDGE
*bgn/-
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