Dismissed

Kum Vandana v. Sri G R Ramesh

Karnataka HC14 Jul 2022WP/625/2015

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed a writ petition challenging the dismissal of an application for a DNA test. The court held that the trial court order did not require interference as the respondent father refused to be listed but the burden to rebut presumption lies on him.

What did the court decide?

Confirmed the impugned order dismissing the application for DNA test and dismissed the writ petition.

Kum Vandana Vs Sri G R Ramesh — Child Custody and Guardianship | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 14^TH DAY OF JULY 2022

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BEFORE

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THE HON’BLE MRS. JUSTICE K.S.HEMALEKHA

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WRIT PETITION No.625/2015 (GM-FC)

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BETWEEN:

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KUM. VANDANA D/O G.R. RAMESH, AGED ABOUT 12 YEARS, SINCE MINOR, REPRESENTED BY HER MOTHER & NATURAL GUARDIAN SMT. AMBIKA, W/O G.RAMESH, 28 YEARS.

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SMT. AMBIKA W/O G.R. RAMESH, AGED ABOUT 28 YEARS,

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BOTH ARE RESIDENT OF MARULASIDDESHWARA NILAYA, 1ST CROSS, OPP. GANDHINAGAR POLICE STATION, DAVANAGERE – 577 002.

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...PETITIONERS

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(BY SRI. HAREESH BHANDARY T., ADVOCATE)

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AND:

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SRI. G.R. RAMESH S/O RAJASHEKAR, AGED ABOUT 36 YEARS, SALES REPRESENTATIVE, R/O GANDHINAGAR, 5^TH CROSS, CHALLAKERE,

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CHITRADURGA DISTRICT – 578 201.

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... RESPONDENT

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER VIDE ANNEXURE-A DATED 04.12.2014 MADE ON I.A. NO.II IN CRL.MISC.NO.273/2013 BY THE COURT OF THE JUDGE, FAMILY COURT, DAVANAGERE AND ETC.,

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this writ petition coming on for orders this day, the court made the following:

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O R D E R

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Heard the learned counsel for the petitioners.

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The present petition is arising out of the order on I.A. No.II in Crl. Misc. No.273/2013 on the file Family Court, Davangere whereby, the application filed by the petitioners seeking direction to the parties to undergo DNA Test through Director

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Center for Cellular and Molecular Biology Institute of Science and Technology, Hyderabad to prove the paternity of the first petitioner was dismissed by the Family Court.

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3. The parties are referred as husband and

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wife for the sake of convenience.

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The wife has filed I.A. No.II contending

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that the husband has disputed the paternity of the first petitioner i.e., daughter by name Vandana and in order to ascertain the truth, she sought to direct the parties to undergo DNA test on the cost of respondent. It is submitted that second petitioner had filed Crl. Misc No.26/2008 before JMFC Court, Jagalur and Rs.1,000/- per month was awarded as maintenance. The husband in order to avoid paying of maintenance has developed intimacy with the wife during the said time, however, it is stated that though there were in good terms the husband without the knowledge of the wife filed divorce petition in MC No.1/2009 before the Senior Civil Judge, Challakere and the same was decreed on 25.06.2011. It is stated that even after decree of

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divorce, the husband has frequently visited the wife and had intimacy with the wife and the first petitioner was born on 16.08.2012. As the husband again neglected to maintain the wife and the child, the wife filed Crl. Misc. No.273/2013 seeking maintenance and it is in this petition, the husband disputed the paternity of the child on the ground that the divorce has been obtained on 25.06.2011 and daughter (Petitioner No.1) was born on 16.08.2012 when there was no subsistence of marriage.

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The learned Family Court, by order dated 04.12.2014 dismissed the application filed by the wife and held that the paternity of the child can be proved by way of evidence between the parties.

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In spite of the notice, there is no representation on behalf of respondent.

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It is undisputed that the second

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petitioner is the wife of the respondent and the marriage was solemnized on 24.12.2004 and as the husband neglected to maintain the wife, she filed Crl. Misc. No.26/2008 seeking maintenance and

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same was allowed and granted maintenance of Rs.1,000/- per month to the wife. It is also not in dispute that the award of maintenance awarded in Crl. Misc No.26/2008 was not paid by the husband.

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The husband in the meanwhile, filed MC No.1/2009 seeking divorce and obtained the decree of divorce on 25.06.2011. It is the specific contention of the wife that though the proceedings for maintenance

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and divorce were pending, the husband had relationship with the wife and made a sound hope conferring on the wife that the dispute would be solved and in view of this, it is contended that the wife was in relationship with the husband even after the decree of divorce granted on 25.06.2011 and in

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that period, first petitioner was born on 06.08.2012. The husband having neglected to maintain the wife and the child, she filed the present Crl. Misc. No.273/2013 and now the husband is disputing the paternity of the child on the ground that the daughter was born subsequently after the divorce dated 25.06.2011. This is when the wife filed an application seeking referring the parties to the DNA test. The husband filed objections stating that first petitioner-daughter was not born during the subsistence of the marriage and she is not born to him. It is relevant to note that when husband rather father who refuses to undergo DNA test is disentitled to dispute the paternity of the child as held by the Hon’ble Apex Court in Dwarika Prasad Satpathy Vs.

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Bidyut Parva Dixit and another reported in (1997) 7 SCC 675 .

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Thus, for the reasons stated supra, the

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husband having not disputed the marriage and there being no second marriage by the wife and no allegation of any relationship with some other person. It is to be noted that Section 112 of Indian Evidence Act, 1872, requires the parties disputing the parentage to prove the non access in order to dispel the presumption of fact. The Hon’ble Apex Court in the case of Banarsi Dass v. Teeku

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Dutta, reported in (2005) 4 SCC 449 held that burden to rebut the presumption lies on the persons questioning legitimacy.

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It is necessary to state that instead of

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troubling the child by giving blood samples and by putting the child into humiliation due to the ego clashes and differences between the husband and the wife, this Court is of the opinion that at this stage, the I.A. No.II seeking for DNA test is not

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justifiable and rejecting the I.A. No.II by the Trial Court does not call for any interference.

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Accordingly, this Court pass the

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following:

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ORDER

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The writ petition is dismissed.

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The order dated 04.12.2014 on I.A .No.II in Crl. Misc.273/2013 on the file of Family Court, Davanagere is hereby confirmed.

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Sd/JUDGE

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Kum Vandana v. Sri G R Ramesh

Case brief

What is this about?

What did the court decide?

Kum Vandana v. Sri G R Ramesh

Case brief

What is this about?

What did the court decide?

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