Allowed

Meda Srilatha, v. Meda Malla Reddy

Telangana HC8 Mar 2013CRP/435/2013

Case brief

AI extract

What is this about?

The Single Judge allowed the Civil Revision Petition filed by the wife, setting aside the lower court order that directed the children to undergo a DNA test. The Court held that children cannot be subjected to DNA tests for ascertaining paternity unless they are first made parties to the proceedings, citing the adverse impact on their status and rights.

What did the court decide?

Civil Revision Petition allowed, impugned order set aside, and I.A.No.445 of 2009 dismissed.

Meda Srilatha, Vs Meda Malla Reddy — Child Custody and Guardianship | Telangana HC (2013)

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THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR

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Civil Revision Petition No.435 of 2013

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Dated: 8 th March, 2013

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Between

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Meda Srilatha … Petitioner AND Meda Malla Reddy … Respondent

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This Court made the following:

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THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR

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Civil Revision Petition No.435 of 2013

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ORDER:

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Petitioner herein is the wife of respondent herein. Their marriage was solemnized on 04.03.1999 and, during their wedlock, they were blessed with two children viz., Uma and Uday. Subsequently, the respondent filed O.P.No.76 of 2007 on the file of the learned Senior Civil Judge, Suryapet against the petitioner and another, under Section 13 (1) (i) (ia) (ib) of the Hindu Marriage Act, 1955, seeking divorce from the petitioner mainly alleging that she is leading adulterous life with the 2^nd respondent in the divorce petition. During the pendency of the divorce petition, the respondent filed an application in I.A.No.445 of 2009, under Section 45 of the Indian Evidence Act, 1872, to refer him, the petitioner and her two children to the Director of Forensic Science Laboratory, Red Hills, Nampally, Hyderabad to conduct necessary D.N.A. test over them for ascertaining the paternity of the children. Opposing the said application, the petitioner filed a counter. The said application was allowed by an order, dated 08.11.2012. The same is questioned in this civil revision petition.

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It is not in dispute that the respondent has been described as mentally retorted person and the divorce petition has been filed by him being represented by his next friend and natural mother Smt. Meda Sugunamma. It appears that the petitioner filed C.C.No.703 of 2005

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on the file of Judicial Magistrate of First Class, Suryapet.

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Learned counsel for the petitioner has argued that the very divorce petition filed by the respondent seeking divorce from the petitioner, is not maintainable, as it is not filed by the respondent, but it is filed by his mother only to grab the valuable property of Acs. 23-00 cents of land, to which, the children of the petitioner are entitled; that an order of declaration is not obtained by the respondent from the trial Court under Section 63 of Indian Lunacy Act, 1912, declaring him as an insane person and not capable of looking after his interest; that the mandatory provisions of Order XXXII Rue 15 of C.P.C. are not complied with and, therefore, the divorce petition filed by the respondent is not maintainable; that under the provisions of Order XVIII Rule 3-A of CPC, it is mandatory that the respondent has to get himself examined as a witness or in the event of his being represented by his mother, his mother has to give evidence on his behalf and it is only thereafter the evidence of other witnesses has to be examined; that no list of witnesses is filed before the trial Court or the documents intended to be relied on by the respondent, as required under Order VII Rule 14 of CPC is filed; and that when the first child was born in 2001 and second child was born in 2007, the respondent cannot say that the children are not born through him after the lapse of six years.

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Learned counsel for the respondent has referred to the contents of the counter filed by the petitioner before the lower Court. It is his main submission that all the pleas now raised by the petitioner are not at all raised by her before the lower Court in her counter and, therefore, new pleas cannot be raised in this revision. He relied on a judgment of this Court in the case of Buridi Vanajakshmi V. Buridi Venkata Satya Varaha Prasad Gangadhar Rao and anothe r^[1] , wherein a learned single Judge of this Court in similar circumstances observed that it is the primary duty of a Court to see that truth is arrived at and the

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petitioner-wife in her cross-examination expressed no objection for subjecting herself to DNA test, and held that there is no illegality or irregularity in the impugned order. In that case also, the legitimacy of the child born to the parties was in question.

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In the case on hand, admittedly, the status and rights of the children are involved. The first child was born in 2001 and the second child was born in 2007. It appears that their paternity was not disputed in the earlier proceedings between the parties. For the first time, divorce petition was filed in the year 2007 seeking divorce on the ground of adultery. Whether the petitioner is living in adultery with the 2^nd respondent in the divorce petition or not, is a main question to be decided in the divorce petition filed by the respondent. Of course, whether the compliance of Section 65 of the Indian Lunacy Act, 1912 and whether an independent application as required under Order XXXII Rule 15 of CPC is to be filed or not, are the questions that have to be dealt with while dealing with an issue, whether the divorce petition filed by the respondent is maintainable or not. Since the maintainability of the divorce petition itself is not in question before this Court, we need not go into that issue. However, the fact remains that the parties are not entered into the witness box.

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Now, it is apt to refer to Order XVIII Rule 3-A which reads as under:

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“Where a party himself wishes to appear as a witness, he shall so appear before any other witness on his behalf has been examined, unless the Court, for reasons to be recorded, permits him to appear as his own witness at a later stage.”

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Even without entering into that dispute, whether the petition filed by the respondent under section 45 of the Indian Evidence Act, 1872 is maintainable or not before the respondent enters into the witness box. Prima facie, it appears that since the status of the children would be

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declared and their rights would be adversely affected, if they were forced to undergo DNA test, we are of the view that unless the children are made as parties to the proceedings before the lower Court, they cannot be forced to undergo DNA test. Though the learned counsel for the respondent has relied on the judgment referred to supra, the point whether the rights of the children would be affected or not, was not decided in that case. Moreover, the petitioner in that case herself expressed no objection for subjecting herself to DNA test. Therefore, the facts of that case appear to be not applicable to the facts of this case.

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In the light of the above discussion, the Civil Revision Petition is allowed by setting aside the impugned order and, consequently, I.A.No.445 of 2009 is dismissed. No order as to costs.

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In view of allowing of the civil revision petition, miscellaneous petitions, if any, pending in the revision shall stand disposed of.

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_____________________________ JUSTICE B.CHANDRA KUMAR 8^th March, 2013. Note: Furnish CC by one week. (b/o) ssv/cbs

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[1] AIR 2010 Andhra Pradesh 172

Meda Srilatha, v. Meda Malla Reddy

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Meda Srilatha, v. Meda Malla Reddy

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