Smt H R Aruna v. Sri H M Narayana Murthy

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dated 10.02.2015 has allowed the application. It is in that view, the petitioner-wife is before this Court in this petition.

3. At an earlier instance when such application had been allowed, the petitioner herein was before this Court in W.P.No.4073/2013 which was disposed of by this Court by the order dated 25.02.2013. At that stage, since the evidence of the parties had not been completed, the order was quashed. However, liberty was reserved to press for the said application after the evidence of both the parties are completed. Since presently the evidence has been tendered by the parties, the application was pressed and the Court below has allowed the same.

4. Having heard the learned counsel for the parties, I have perused the petition papers.

5. A perusal of the order passed by the Court below would disclose that the Court below on taking note

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of the contention put forth by the respondent herein in his main petition with regard to his physical disability has thereafter referred to the cross-examination of the petitioner wherein she has stated that she would have no objection if the DNA test is conducted to find out as to whether the child is born to her and the respondent herein out of the wedlock. Merely based on such admission, the Court below has directed the parties to undergo DNA test. Insofar as the statement of the petitioner herein in the cross-examination that she has no objection to undergo examination cannot be taken out of context as consent since when the application was filed and the objection had been filed to the said application opposing the prayer as made therein, the Court below was required to take note of the contention and thereafter come to the conclusion.

6. Insofar as that aspect of the matter, the position as has been considered by the Hon'ble Supreme Court in

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the case of Goutam Kundu -vs- State of West Bengal and Another [(1993) 3 SCC 418] would indicate that the mode of deciding paternity would be based on the evidence that would be tendered by the parties wherein 'access' during the subsistence of the marriage is an aspect which is required to be considered and the presumption being that the child would be born out of the marriage is a rebuttable presumption and the same is to be considered in that regard. Insofar as the DNA test to be ordered pursuant to the application under Order 26 Rule 10-A of CPC, the issue had arisen for consideration before this Court in the case of V. Anandappa -vs- V. Shivaraju and Another [2011(4) Kar.L.J. 73] wherein this Court has held that any direction issued in that regard would amount to 'invasion of privacy'.

7. In that light, a perusal of the fact situation in the instant case as noticed is that the respondent is seeking to

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contend that the child born is not out of the wedlock since he contends that he is suffering from weakness of nerves and he is physically handicapped and therefore the marriage in any event could not have been consummated and there was no co-habitation between them. If such positive statement has been put forth by the respondent herein before the trial Court, it is a matter of evidence which would have to be brought before the Court below and the same would have to be proved through medical evidence as well. In that light, the respondent would have to prove that there was no 'access' nor was he medically capable and therefore the child could not have been born. When the evidence has already been completed and if such evidence is available, in any event, the Court below would be in a position to assess the evidence and thereafter come to the conclusion. Therefore merely because the petitioner herein has stated in one sentence that she has no objection if the DNA test is conducted,

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that by itself cannot be considered as a consent given by the petitioner since any order to the contrary would certainly amount to 'invasion of privacy' without any express consent given by the person.

8. Therefore, the order dated 10.02.2015 passed on I.A.No.4 in M.C.No.11/2012 is not sustainable, the same is accordingly set aside. The trial Court shall now proceed to consider the matter based on the evidence that is available on record.

9. Needless to mention that if the parties seek to tender any further evidence in the matter, the Court below may consider the same in accordance with law. The petition is accordingly disposed of. Sd/-

JUDGE

akc/bms