Decided on November 04,2003



- (1.) The defendants 1, 3 and 4 in a suit for partition (O. S. No. 128/2000) instituted by the 1st respondent herein, who is the plaintiff before the sub Court, Ernakulam are the revision petitioners. The 2nd respondent herein is the 2nd defendant in the said suit. The question that arises for consideration is as to whether the 1st respondent can be compelled to undergo DNA test as applied for by the petitioners by filing I. A. No. 2250/2000. The Court below found by the impugned order that one cannot be compelled to undergo DNA test against her wish and the application was dismissed. The suit property belonged to one Mohammed Iqbal, the husband of the 1st defendant, the 1st petitioner herein. There is yet another suit filed by one of the sons pending before the said Court for partition. Later the 1st respondent herein also instituted a suit for partition claiming separate share in the property belonged to her father, Mohammed Iqbal, the 1st petitioner herein took up a contention that the 1st respondent is not her daughter but only an adopted child. Whereas the 1st respondent contended that she is entitled to the share of the property belonged to her father and she claimed to be the natural born child of Mohammad Iqbal and the petitioner. Though the trial of the suit is started, it was at that time that the present application was filed seeking for a direction to the 1st respondent herein to undergo DNA test.
(2.) In the impugned order the learned Sub Judge after referring to the contentions of the parties, came to the conclusion that it is unjust to compel the 1st respondent to undergo DNA test and hence the petition closed. However, there is an observation in the impugned order in the following lines : The learned counsel for the respondent would argue that 1st respondent is the daughter of the petitioner and late Mohammed Iqbal and that she cannot be compelled to undergo DNA test. Of course it has been laid down in a series of judicial pronouncements that nobody can be compelled to undergo DNA test."
(3.) The learned counsel for the petitioners strenuously contended before me that the Court below is not powerless to order DNA test in appropriate cases and the observation of the court below that one cannot be compelled against her wish to undergo DNA test is misconceived of the legal position. According to the counsel, various decisions of the Apex Court arise out of the presumption arrived at under S.112 of the Evidence Act which provides that the fact that any person was born during the continuance of a valid marriage between his mother and any man, or within 280 days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten. According to him, the conclusive proof arising under S.112 of the Act is only regarding the paternity of the child and will not apply to the maternity of the child. In other words, when there is a dispute as to who is the mother of the child in the absence of any such presumption under S.112 of the Act, it is still open to the parties to adduce evidence on the question regarding the same.;

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