Heard learned counsel for petitioner and learned counsel for respondent.
2. Petitioner is aggrieved by the order passed by the learned III Addl. District & Sessions Judge, Mandya (sitting at Srirangapatna) in Crl.A.No.5002/2018 dated 29.08.2019, whereby the criminal appeal filed by the petitioner is dismissed and the order passed by the Civil Judge & JMFC, Pandavapura, in C.Misc.No.367/2016 dated 16.11.2017 is confirmed and consequently the application filed by the petitioner under Section 45 of the Indian Evidence Act, has been rejected.
3. By the said application, petitioner sought to subject the male child of respondent for DNA examination to prove non-access.
4. Petitioner does not dispute the fact that the marriage between him and respondent is subsisting. Eventhough the petitioner has disputed the paternity of male child of respondent, yet in view of the presumption under Section 112 of the Indian Evidence Act, petitioner is not entitled to call for scientific evidence at this stage.
5. In this context, it may be useful to refer to a decision of the Hon'ble Supreme Court in the case of Goutam Kundu vs. State of West Bengal reported in 1993 AIR 2295 wherein it is held that while dealing with the question about the paternity of a child, the presumption arising under section 112 of the Indian Evidence Act has to be displaced by a strong preponderance of evidence and not by balance of probabilities. In paragraph 26 of the said judgment, it is held as under:
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.
6. Though in a later case in Sharda vs. Dharmpal (2003) 4 SCC 493, it is held that Goutam Kundu is not an authority for the proposition that under no circumstance, the Court can direct the blood tests be conducted. Yet, in view of the presumption under section 112 of the Indian Evidence Act, without there being prima facie material to show that the parties to the marriage had no access to each other at any time when the child could have been begotten, which burden is primarily on the petitioner, cannot be discharged by making a roving enquiry by subjecting the child and her mother for DNA examination. Therefore, the trial Court in the facts and circumstances of the case was justified in rejecting the application. I do not find any good reason to interfere with the impugned order. Accordingly, petition is dismissed. Trial Court shall consider the evidence adduced by the parties being uninfluenced by the orders passed by this Court. Sd/- JUDGE