Case Note & Summary
The writ petition under Article 227 of the Constitution of India was filed by the third defendant in a partition suit, O.S. No. 89 of 2016, challenging the order of the Senior Civil Judge, Channarayapatna, dated 05.04.2025, which allowed an application under Order XXVI Rule 10A of the Code of Civil Procedure, 1908 for DNA test of defendants 1 and 3 to determine paternity. The suit was instituted by respondents 1 and 2 (plaintiffs) seeking partition. The petitioner (defendant No.3) was born from the wedlock of defendants 1 and 2, and he claimed a share in the joint family property. Several matrimonial proceedings had taken place between defendants 1 and 2, and they had a son (defendant No.3). After issues were framed in 2018 and evidence led, the plaintiffs filed the application for DNA test, alleging that defendant No.1 had undergone a successful vasectomy in 1979, long before the birth of defendant No.3, making his paternity impossible. The application was allowed despite objections. The petitioner contended that the order violated his right to privacy under Articles 19 and 21 of the Constitution and that Section 112 of the Indian Evidence Act, 1872 requires the plaintiffs to plead and prove non-access, which they had not done. The respondents argued that DNA test was imperative to prove fraud and collusion, that the test had already been conducted and report was awaited, and that the vasectomy evidence established the impossibility of defendant No.3 being the son of defendants 1 and 2. The High Court considered the submissions and perused the record, noting the facts and the trial court's reasons for allowing the application, which included reference to the vasectomy, criminal proceedings, birth record discrepancies, and previous judicial findings. The judgment text provided ends before the High Court's final decision.
Headnote
A) Civil Procedure – DNA Test – Order XXVI Rule 10A, Code of Civil Procedure, 1908 – Permissibility of DNA test in a suit for partition to determine paternity – The trial court allowed the application for DNA test on the ground that defendant No.1 had undergone vasectomy in 1979 and there were discrepancies in defendant No.3's birth records, creating doubt about his paternity. The petitioner/defendant No.3 challenged the order arguing that marriage and birth were proved in prior matrimonial proceedings, that Section 112 of the Indian Evidence Act, 1872 requires proof of non-access, and that the test violates his right to privacy. (Paras 1-7). Held, [incomplete in supplied text].
Issue of Consideration
Whether the order allowing DNA test under Order XXVI Rule 10A CPC in a partition suit violates Section 112 of the Indian Evidence Act, 1872 and the right to privacy under Article 21 of the Constitution of India?
Law Points
- Article 21 right to privacy
- Section 112 Indian Evidence Act
- 1872 presumption of legitimacy
- Order XXVI Rule 10A Code of Civil Procedure
- 1908 scientific examination
- DNA test for paternity
- Vasectomy and paternity
- Non-access pleading requirement
Case Details
2020 LawText (KAR) (09) 2
Writ Petition No. 20342 of 2025 (GM-CPC)
Vijay Krishna Bhat M., M. Murali Babu
A.S. Umesh, A.S. Lokesh, A.C. Sannegowda, Lakshmamma, Ningamma (for late C.V. Marire Gowda), Dore @ Doreswamy, Nagesha, A.S. Krishne Gowda, Sanna Lingegowda, Revanna, Nanjegowda
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Nature of Litigation
Writ petition under Article 227 of the Constitution of India challenging an order of the Senior Civil Judge allowing an application for DNA test under Order XXVI Rule 10A CPC in a partition suit.
Remedy Sought
Petitioner/3rd defendant seeks quashing of the order dated 05.04.2025 passed by the Senior Civil Judge allowing the plaintiffs' application for DNA test, and consequently rejection of the said application.
Filing Reason
The petitioner contends that the DNA test order violates his right to privacy and is contrary to Section 112 of the Evidence Act as there is no plea of non-access, and that paternity is already established through prior matrimonial proceedings.
Previous Decisions
The trial court in O.S. No. 89 of 2016 allowed IA under Order XXVI Rule 10A CPC on 05.04.2025, directing DNA test of defendants 1 and 3. Prior matrimonial proceedings between defendants 1 and 2 include Crl. Mis. 143/1987, Crl. Mis. 118/1991 (dismissed), O.S. No. 66/1993 (partition decree rejected in RA.11 and 14/2002).
Issues
Whether the impugned order allowing DNA test under Order XXVI Rule 10A CPC is sustainable in law?
Whether the DNA test violates petitioner's right to privacy under Article 21 of the Constitution?
Whether Section 112 of the Indian Evidence Act, 1872, requires proof of non-access before questioning paternity, and whether such plea was raised?
Whether the trial court could order DNA test on the basis of vasectomy allegations and discrepancies in birth records?
Submissions/Arguments
Petitioner: The order violates Articles 19 and 21 of the Constitution. There is ample evidence of marriage and birth from prior proceedings. Section 112 Evidence Act requires plaintiffs to plead and prove non-access, which they have not done. The order is violative of right to privacy.
Respondents: DNA test has already been conducted and report is awaited, so petition should not be entertained. Defendant No.1 underwent vasectomy in 1979 and child was born in 1986, making birth impossible. DNA test was imperative to prove fraud and collusion.
Judgment Excerpts
The petitioner is the 3rd defendant. Respondent Nos.1 and 2 who are plaintiffs 1 and 2 institute a suit for partition in O.S.No.89 of 2016.
The application under Order XXVI Rule 10A of the CPC seeking DNA test of defendants 1 and 3 to determine blood relation and paternity by way of scientific examination through an expert.
the impugned order of permitting DNA test of the petitioner is violative of Articles 19 and 21 of the Constitution of India.
Procedural History
Suit O.S. No. 89 of 2016 filed for partition by plaintiffs (respondents 1 and 2). Defendants filed written statement. Issues framed on 11.01.2018. Plaintiffs led evidence. Petitioner (defendant 3) examined as DW-1 on 07.09.2023, matter posted for cross-examination. Plaintiffs filed application under Order XXVI Rule 10A CPC for DNA test. Trial court allowed application by order dated 05.04.2025. Petitioner filed writ petition under Article 227 challenging said order. High Court reserved orders on 18.08.2025 and pronounced on 01.09.2025.
Acts & Sections
- Code of Civil Procedure, 1908: Order XXVI Rule 10A
- Indian Evidence Act, 1872: Section 112
- Constitution of India: Articles 19, 21, 227
