Balasubramanian vs Santhosh and Selvakumari

R. Subbiah, J.—Defendant in O.S. No. 173 of 2009 on the file of District Munsif Court, Jayankondam, is the revision Petitioner and

aggrieved over the dismissal order passed in I.A. No. 1325 of 2010, the application filed by the Defendant seeking direction to undergo DNA test

by himself and the 1st Respondent herein in order to prove his case that the 1st Respondent was not born to him, the present revision petition has

been filed.

O.S. No. 173 of 2009 has been filed by the Respondents herein as against the revision Petitioner for partition and separate possession of their =

share in the suit property. According to the revision Petitioner/Defendant, he married the 2nd Respondent on 13.12.1991 and they were living

together only for a month. Thereafter, the 2nd Respondent deserted him and has been leading a wayward life. The 1st Respondent was born after

one year of separation and as such, he was not born to the Defendant. Hence, he filed I.A. No. 1325 of 2010 seeking a direction for DNA test to

be conducted to the Petitioner as well as the 1st Respondent for establishing paternity.

The said application was vehemently opposed by the 2nd Respondent, denying the allegation made by the Petitioner and stated that if the

application is allowed, it would cause great hardship and mental agony to the 1st Respondent. Thus, she prayed for the dismissal of the application.

The court below, by considering the entire facts and by relying upon Section 112 of the Evidence Act, has dismissed the application. Section

112 of the said Act reads as follows:

Birth during marriage, conclusive proof of legitimacy:

The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty

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.

By placing reliance upon Section 112, the trial court has given a specific finding that the presumption can only be displaced by a strong

preponderance of evidence and not by a mere balance of probabilities. Moreover, as found by the court below, the Petitioner/Defendant has not

proved that he had no access between himself and the 2nd Respondent when the second Respondent conceived. The Petitioner also has not

divorced the 2nd Respondent.

Taking into consideration the facts and circumstances of the case, I am of the view that the impugned order passed by the trial court is proper

and correct and I do not find any infirmity in the order passed by the court below and as such, the revision petition is liable to be dismissed.

Accordingly, the civil revision petition is dismissed. No costs. Connected M.P. is closed.