Chintada Venkata Lakshmi v. No doubt, the order seeking D.N.A. test to prove the legitimacy

THE HON'BLE SRI JUSTICE K.C.BHANU CIVIL REVISION PETITION NO.3455 OF 2009 Between : Chintada Venkata Lakshmi ... PETITIONER A N D Chintala Appalanaidu and another …RESPONDENTS THE HON'BLE SRI JUSTICE K.C. BHANU CIVIL REVISION PETITION NO. 3455 OF 2009 ORDER: This Civil Revision Petition, under Article 227 of Constitution of India, is directed against the order, dated 19.06.2009, in I.A.No.12 of 2009 in M.O.P.No.45 of 2008 on the file of Additional Senior Civil Judge, Srikakulam, whereunder and whereby, the application, filed under Section 112 of Indian Evidence Act,1872, read with Section 151 of the Code of Civil Procedure, 1908, to order for D.N.A. test to prove the legitimacy of the child by deciding his paternity at the cost of the petitioner, was allowed.

#2. Learned counsel for the petitioner contended that the paternity of the child is not disputed; that in the earlier proceedings, the respondent No.1 herein admitted that the son was born to him through the petitioner and therefore, the question of sending the blood samples to D.N.A. analysis does not arise.

#3. On the other hand, the learned counsel for the respondent No.1 contended that, the earlier proceeding is a different proceeding and no plea has been taken with regard to paternity of child in that petition; that in this petition it is specifically stated that the boy was not born through respondent No.1, therefore, the boy is an illegitimate child and to prove the legitimacy of the child, D.N.A., profile is required; that the trial Court rightly allowed the petition and there are no grounds to interfere with the same.

#4. No doubt, the order seeking D.N.A. test to prove the legitimacy of the child by deciding his paternity arises when the paternity is under serious dispute. In this case, the paternity of the child is not disputed. Therefore, the question of sending the blood samples of the child to D.N.A. profile does not arise.

#5. No doubt, M.C. proceedings are different proceedings, but at the same any admission is made, it is relevant under Section 21 of the Evidence Act, and such an admission has to be proved against the person who makes it. The first respondent herein got issued a notice through his advocate on 21.06.2005, wherein it is stated that “The marriage was consummated and gave birth to a male child namely Achuta Rao on 24.05.2004”. Similarly, the respondent No.1 herein filed counter in M.C.No.9 of 2005 on the file of Judicial Magistrate of First Class, Amadalavalasa, wherein it is stated that, “the allegations in the petition that the 1st petitioner is the wife of the respondent and the 2nd petitioner is the son of the respondent is true”. It is further stated that “The respondent submit that after the birth of the 2nd petitioner, the 1st petitioner is not joined with the respondent for no fault of him”. Therefore, these admissions would clearly go to show that the son was born during the lawful wedlock of the petitioner and respondent No.1. Such is a case, the present allegation of respondent No.1 that the boy was not born through him does not arise. Therefore, the trial Court exceeded its limits in directing the petitioner to appear for D.N.A. test to prove the legitimacy of child.

#6. Accordingly, the Civil Revision Petition is allowed setting aside the impugned order dated 19.06.2009 in I.A.No.12 of 2009 in M.O.P.No.45 of 2008 on the file of Additional Senior Civil Judge, Srikakulam. There shall be no order as to costs. _______________ K.C.BHANU. J NOVEMBER 09, 2010. YVL