@JUDGMENTTAG-ORDER
Nooty Ramamohana Rao, J.@mdashBoth these revisions are heard together as they are interconnected with each other and the parties are also one and the same. The 1st defendant in the suit is the petitioner in both these revisions. The suit O.S. No. 133 of 2012 has been instituted by the 1st respondent herein seeking a declaration that the 1st defendant in the suit is the father of the plaintiff born, to the 2nd defendant due to the long cohabitation as man and wife by defendant Nos. 1 and 2 in the suit.
2. In suit O.S. No. 133 of 2012, I.A. No. 318 of 2012 has been taken out by the 1st respondent/plaintiff u/s 45 of the Indian Evidence Act read with Section 151 CPC (for short "C.P.C.") to subject both the plaintiff and the 1st defendant in the suit to undergo DNA Finger Printing test at Center for Cellular and Molecular Biology (C.C.M.B.), Tarnaka, Hyderabad or at any other reputed Government testing laboratory - cum - hospital to ascertain the factum of his paternity. The said I.A. was allowed by the Court by its order dated 07.06.2013. Challenging the correctness of this order, C.R.P. No. 2961 of 2013 has been instituted.
3. C.R.P. No. 2980 of 2013 has been instituted to strike off O.S. No. 133 of 2012 on the file of the learned I Additional Junior Civil Judge, Eluru as the said Court suffers inherent lack of jurisdiction for trying the same in view of the provisions contained in Section 7(1) clauses (b) and (e) of the Family Courts Act, 1984 (for short "the Act"), Proviso to Sections 34 and 35 of the Specific Relief Act read with Order II Rule 2 CPC and Sections 40 to 42 and 112 of the Evidence Act. That is the reason why both these Civil Revision Petitions are heard together.
4. The plaintiff has claimed that the 1st defendant in the suit married the 2nd defendant as per Hindu Vedic rites and customs in the presence of elders and relatives at Dwaraka Thirumala on 04.03.1982. As a consequence of this marriage between the defendants, they lived together as man and wife for sufficiently long period enough and as a result of which relationship; the plaintiff was born to the 2nd defendant on 30.10.1984. It is the claim of the plaintiff in the suit that the 1st defendant has treated the plaintiff and the 2nd defendant with necessary love and affection and looked after them well. It is also the claim of the plaintiff that his paternal grandfather Sri Siva Gopal Lunani, the father of the 1st defendant, has also treated him with much love and affection and has supported him. According to the plaintiff sometime around June, 2011 when he approached the 1st defendant to consult him with regard to his further education, the 1st defendant has refused his relationship with the plaintiff. In view of this denial of relationship by the 1st defendant, the plaintiff got issued a legal notice on 05.08.2011 and the 1st defendant got issued a reply notice on 20.08.2011 denying his marriage with the 2nd defendant and consequently his relationship with the plaintiff. The 1st defendant claimed no acquaintance with the plaintiff or with his mother, the 2nd defendant in the suit and asserted that both of them are strangers to him. Further, the 1st defendant has set out that he is already a married person by 04.03.1982, the date on which it was alleged that he had married the 2nd defendant in the suit. The 1st defendant, therefore, asserted that the question of marrying the 2nd defendant second time while his wife Smt. Saroj Lunani was very much alive simply would not arise. The 1st defendant has further asserted that as he is a rich person, the plaintiff had adopted blackmailing tactics for extracting money by seeking to defame him in the society. The 1st defendant has also asserted that since his is a rich and enjoying decent reputation in the society, the plaintiff might have been set up by someone else to malign the 1st defendant irretrievably.
5. The 1st defendant has reiterated the pleas taken by him in his reply notice, while filing the detailed written statement in the suit. The 1st defendant has asserted in paragraph No. 3 of the written statement as under:
.............. he is not aware of the plaintiff or the 2nd defendant and they are utter strangers to this defendant and hence this defendant has no knowledge, whether the plaintiff is a B. Tech graduate and his mother is 2nd defendant.
6. In paragraph No. 4, the 1st defendant has further asserted as under:
............... this defendant''s marriage was performed with one Smt. Saroj Lunani on 9.12.1974 at Calcutta and since then Smt. Saroj Lunani is the legally wedded wife of this defendant. So, the question of this defendant marrying the 2nd defendant on 4.3.1982 at Dwaraka Tirumala does not arise and the said allegation is absolutely false.
7. In paragraph No. 5, it was further asserted by the 1st defendant as under:
This defendant humbly submits that he begot one son by name Naresh Kumar Lunani on 8.10.1975 through his wife Smt. Saroj Lunani and leading a very happy life with them. Now this defendant is aged about 63 years and at this juncture, the false and frivolous allegations of the plaintiff, caused much physical and mental agony to this defendant. If the version of the plaintiff is true, the 2nd defendant might have legally proceeded against this defendant long back. But such thing has not happened till date. This clearly shows the falsity of the plaintiff''s case.
8. In paragraph No. 6 of the written statement, the 1st defendant has further asserted as under:
............... the question of this defendant lived together with 2nd defendant under one roof at Gandhi Nagar, Powerpet, Eluru near Vimala Devi Shool in D. No. 20C-5-15 does not arise. This defendant never at any point of time even visited the said house bearing D. No. 20C-5-15.
9. In paragraph No. 11, the 1st defendant has asserted as under:
............... This defendant has already mentioned in his reply notice dated 20.08.2011 that he is an employee in the jute mill. It is suspected by this defendant that some body who is inimical towards this defendant in the business affairs/jute mill affairs might have utilized the plaintiff and 2nd defendant as a weapon to defame this defendant and to extract money from him. When there are no assets in the name of 1st defendant, he looking after the plaintiff and his mother and feeding them with the income derived from such assets does not arise.
10. Heard Sri D.V. Madhusudhan Rao, learned counsel for the petitioner, and Sri K. Chidambaram on behalf of the 1st respondent.
11. I consider it more appropriate to deal with C.R.P. No. 2980 of 2013 first. As was already noticed supra this revision is preferred to strike off suit O.S. No. 133 of 2012 on the file of I Additional Junior Civil Judge, Eluru as the said Court inherently lacks jurisdiction. The case of the petitioner rests very heavily on the provision contained in Section 7 of the Family Courts Act, 1984. With a view to promote conciliation in, and secure speedy settlement of, disputes relating to marriage and family affairs and for matters connected therewith by providing for establishment of Family Courts, the Parliament enacted the Family Courts Act, 1984. The Act inter alia intended to exclusively provide jurisdiction to the Family Courts for matters relating to matrimonial relief, including nullity of marriage, judicial separation, divorce, restitution of conjugal rights, or declaration as to the validity of a marriage or as to the matrimonial status of any person, the property of the spouses or of either of them, declaration as to the legitimacy of any person, guardianship of a person or the custody of any minor, maintenance, including proceedings under Chapter IX of the Code of Criminal Procedure.
12. Section 7 of the Family Courts Act, 1984 reads as under:
7. Jurisdiction:-(1) Subject to the other provisions of this Act, a Family Court shall-
(a) have and exercise all the jurisdiction exercisable by any District Court or any Subordinate Civil Court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the explanation; and
(b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a district court or, as the case may be, such subordinate civil court for the area to which the jurisdiction of the Family Court extends.
Explanation:-The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely:-
(a) a suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage;
(b) a suit or proceeding for a declaration as to the validity of marriage or as to the matrimonial status of any person;
(c) a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them;
(d) a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship;
(e) a suit or proceeding for a declaration as to the legitimacy of any person;
(f) a suit or proceeding for maintenance;
(g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor.
(2) Subject to the other provisions of this Act, a Family Court shall also have and exercise-
(a) the jurisdiction exercisable by a Magistrate of the First Class under Chapter IX (relating to order for maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973 (2 of 1974); and
(b) such other jurisdiction as may be conferred on it by any other enactment.
13. Section 8 declared that where a Family Court has been established for any area, no district court or any subordinate civil court referred to in sub-section (1) of Section 7 shall, in relation to such area, have or exercise any jurisdiction in respect of any suit, proceeding of the nature referred to in the explanation to that sub-section. Therefore, if the subject matter of the civil suit O.S. No. 133 of 2012 is covered by any of the various aspects or of the nature of the subject matters falling within clauses (a) to (g) of the explanation incorporated in sub-section (1) of Section 7, then the I Additional Junior Civil Judge at Eluru cannot have any jurisdiction to try the same. Hence, it is important to analyze the contents of sub-section (1) of Section 7 of the Act fully.
14. Sub-section 1 of Section 7 read with the explanation there under, of the Act has set out that where a Family Court is established, it is that Court which shall have and exercise all the jurisdiction in relation to a suit or proceeding between the parties to a marriage for a decree of nullity of marriage or restitution of conjugal rights or judicial separation, and dissolution of marriage. Therefore, a suit or proceeding between the parties to a marriage alone is dealt with under clause (a). In clause (b) the nature of claim set out relates to a suit or proceeding for a declaration as to the validity of marriage or as to the matrimonial status of any person. It is again important to notice the crucial expressions mentioned therein namely validity of marriage or as to the matrimonial status of any person. Therefore, if the subject matter is to be covered by clause (b), then the suit or a proceeding must be one, which is brought out by either of the parties to a marriage. When we examine clause (c), it was set out very clearly therein that a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them. Clause (c) does not offer any difficulty, in as much as it is made explicitly clear that the suit or proceeding should be brought out by the parties to a marriage with respect to the properties of either of them. When we look at clause (d), it is once again clear that a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship is covered by it''s sweep. Therefore, for a subject matter to fall under the sweep of clause (d) the parties to a suit or proceeding must necessarily have a marital relationship. The most crucial clause, for our inquiry is clause (e), which sets out that a suit or proceeding for a declaration as to the legitimacy of any person. This clause obviously deals with a third party to a matrimonial relationship and that third party should be obviously the offspring of persons having a matrimonial relationship. In spite of the obvious, if a person is desirous of securing a declaration of one''s legitimacy (his or her), then he can seek a declaration of his legitimacy.
15. This raises the fundamental question as to who can be declared as a legitimate child.
16. Webster''s English Dictionary dealt with the expression legitimacy in the following words:
1. Having the sanction of law or custom; authorized; lawful; also genuine.
Born in wedlock. Based strictly on hereditary rights or sovereignty. Following in regular or natural sequence; logically deduced.
17. Black''s Law Dictionary dealt with the expression legitimacy in the following words:
Lawfulness. The status of a person who is born within a lawful marriage or who acquires that status by later action of the parents; legal kinship between a child and its parent or parents.
18. Therefore, it is very clear that there should be a marriage between two persons belonging to opposite sexes, for their offspring to have a declaration about their legitimacy. (See Section 16 of the Hindu Marriage Act). The 1st defendant in the suit has not merely disputed the marriage between him and the 2nd defendant in the suit but he has proceeded further and described the plaintiff as well as the 2nd defendant in the suit, the mother of the plaintiff as total strangers to him. Far more significantly the 1st defendant has asserted that he was married to Smt. Saroj Lunani on 09.12.1974 at Calcutta, which is much prior to the date 04.03.1982, which is the date claimed by the plaintiff as the date of marriage between the defendant Nos. 1 and 2 in the suit. By the very nature of the firm denial set up by the 1st defendant in the suit, even if the plaintiff were to succeed in establishing that a marriage has taken place between the defendant Nos. 1 and 2 in the suit, such a marriage cannot be construed as valid marriage in view of Section 5(i) read with Section 11 of Hindu Marriage Act, which clearly disclosed that if a Hindu is already married and the said marriage is subsisting, he cannot contract a second marriage.
19. In view of the pleadings set up by the petitioner in this revision he is not merely disputing his marriage with the 2nd defendant in the suit but he has also asserted that he never lived with her, for the plaintiff to be born because of him. The petitioner has also laid foundation for any such marriage to be treated as not a legal or valid marriage. In that view of the matter, the prospects are such that, without first establishing the relationship between the 1st and 2nd defendants, the plaintiff can seldom be declared as a legitimate child of the 1st defendant.
20. As was already noticed supra, the Family Court has jurisdiction exclusively to declare the legitimacy of the offspring of a valid marriage, it cannot have jurisdiction to deal with issues of illegitimacy. In this context it will be relevant to notice the principle set out by the Supreme Court in
.............. However, as rightly held by the Family Court and the High Court, the declaratory relief as regards the illegitimacy of the child cannot be granted. In effect, that is what the appellants want under prayer No. 1.
21. It is therefore clear that u/s 7(1), explanation (e) of the Act, the Family Court cannot entertain any suit or a proceeding for a declaration as to the legitimacy of any person without establishing validly any claim of marital relationship of the parents. In the face of denial of a marital relationship by the petitioner herein between him and the 2nd defendant in the suit, he cannot suggest that the Family Court should try the suit brought out by the plaintiff for declaration about his legitimacy. I, therefore, do not have any hesitation to hold that the Civil Court''s jurisdiction to entertain the suit of the plaintiff is not barred u/s 8 of the Act as explanation (e) to sub-section (1) of Section 7 of Family Courts Act, 1984 is not attracted in the instant case.
22. Learned counsel for the petitioner has quietly filed in the registry the written arguments raising several other contentions. I therefore consider it necessary to refer to them as well herein below.
23. Learned counsel for the petitioner has placed reliance upon the judgment rendered by the Division Bench of Kerala High Court in
The jurisdiction conferred on the Family Court is settlement of issues arising out of matrimonial causes. Matrimonial cause is a cause relating to rights of marriage between husband and wife. Paternity and legitimacy are two different concepts. Paternity by itself may not, in all circumstances, be a matrimonial cause, as in the instant case. Paternity is the state or fact of being the father of a particular child. Legitimacy of a child is its right to be officially accepted as such. ....................................... The Family Court gets jurisdiction to go into the question of legitimacy of any person only if such a question arises in a matrimonial cause.
24. It is exactly the same view which I have taken a little earlier.
25. It was urged in the written arguments that the suit is hit by the prohibition contained in Sections 34 and 35 of the Specific Relief Act, 1963. Sections 34 and 35 of the Specific Relief Act, which dealt with the declaratory decrees, have not contained any prohibition for entertaining a suit for declaration. All that Section 34 of the Act would set out is that any person entitled to any legal character or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief. It was further provided therein that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. Far from containing any prohibition from entertaining a declaratory suit, all that Section 34 attempts to do was to guide and regulate properly the exercise of discretion while granting declaratory relief by the Court. Therefore, this is not the stage at which, Sections 34 and 35 of the Specific Relief Act can be pressed into service by the petitioner. Such a stage perhaps would arrive only after the plaintiff has made out a case for grant of the relief prayed for by him.
26. Similarly Order II of the CPC has been framed with a view to avoid further litigation, by insisting that every suit shall as far as practicable be framed to afford ground for final decision upon the subjects in dispute. It is, therefore, incumbent for every suitor to include the whole of the claim, which he is entitled to make in respect of the same cause of action. The danger and risk that the plaintiff will be running if he omits to sue for the other reliefs is contained in Rule 2 thereof, which pointed out that the plaintiff shall not afterwards sue for any relief so omitted. Therefore, if the plaintiff in the instant case has omitted to sue for any other relief, the risk which he is running would be that he will not be able to sue for the said relief later on. For that reason, the present suit cannot be dismissed.
27. It was sought to be contended that the (1st) wife of the petitioner herein and the son born to him through her are also needed to be impleaded to the suit and their non-joinder is fatal to the present proceedings. I am afraid, this contention lacks any merit.
28. For establishing the relationship of man and wife between the 1st defendant and 2nd defendant, impleading the 1st wife of the petitioner herein and the son born to him through her are neither proper nor necessary parties. If they had been impleaded, the suit would have been hit by the principle of mis-joinder of parties. I, therefore, do not see any reason to throw out the present suit on that ground.
29. It was also urged that by a trick of pleading and camouflage that one cannot confer jurisdiction on a civil Court. As is too well known Civil Court has jurisdiction, so long as such jurisdiction is not specifically ousted. I have already adverted to the contours set out under Sections 7 and 8 of the Family Court. I have already pointed out as to how the prohibition contained under those two sections is not attracted in the instant case. Therefore, I am not able to perceive any trick or camouflage that is employed by the 1st respondent-plaintiff while instituting the suit. Hence, this contention is also merit less.
30. There was also a reference made to Sections 40 and 42 of the Indian Evidence Act in the written arguments. Section 40 dealt with the principle relating to the relevancy of the previous judgments to bar a second suit or to hold a trial thereof.
31. Section 42 dealt with the relevancy and effect of judgments, orders or decrees other than those mentioned in Section 41 and it declared such judgments, orders or decrees are not conclusive proof of that which they state. No reference whatsoever has been made to any judgment, order or decree earlier to the present suit, for one to be called upon to examine the principles set out under Sections 40 and 42 of the Indian Evidence Act.
32. I, therefore, do not see any valid or tenable reasons to hold that the civil suit O.S. No. 133 of 2012 on the file of the learned I Additional Junior Civil Judge, Eluru, is liable to be struck off as prayed for in this revision. Accordingly, this C.R.P. No. 2980 of 2013 is dismissed. C.R.P. No. 2961 of 2013:
This revision is preferred against the order passed for conducting DNA finger printing test on the petitioner herein. DNA finger printing test is no doubt a fairly advanced scientific test. Before the petitioner herein is ordered to undergo this test, it would be really necessary to understand the scientific principles behind this test.
33. Every organism stores and transmits hereditary information in the form of distinct units to the next generation. Nucleic acids forming part of each cell stores this vital information. By now it is well recognized that there are two types of nucleic acids: DNA and RNA. The hereditary information is stored in a particular sequence of DNA bases. The DNA is a polymer made out of repeating units of nucleotides. Ribonucleotides, which make up RNA consist of ribose, a pyrimidine or purine base while the repeating units of DNA are deoxyribonucleotides, comprising of deoxyribose, a pyrimidine or purine base and phosphate. The nucleus in every cell is surrounded by a membrane, which acts as a nuclear envelope that protects the DNA stored in the nucleus. Every cell lying within the same organism contained the same DNA.
34. The genetic information in DNA is stored as a code made up of four chemical bases: Adenine (A), Guanine (G), Cytosine (C) and Thymine (T). The human DNA consists of about three billion bases and more than 99% of those bases are the same or common in all people. However, the order or the sequential formation of these bases determines the information available for building and maintaining an organism. This pattern is comparable to the position of letters or alphabets that appear in a sequential order to form words and sentences. DNA bases pair up with each other; A with T and C with G, to form units called base pairs. Each base is attached to a sugar molecule and a phosphate molecule. All these together - a base, sugar and phosphate - are called as nucleotide. Nucleotides are arranged in two long strands that form a spiral called double helix. The structure of the double helix is comparable to a twisted ladder in which the base pairs form the ladder''s rungs, while the sugar and phosphate molecules form the vertical sidepieces of the ladder. Most significant property of a DNA is that it can replicate itself. Each strand of DNA in the double helix can serve as a pattern for duplicating the sequence of bases. This is a critical function when cells divide, because each new cell that is formed needs to have an exact copy of the DNA present in the old cell.
35. Human DNA is organized into long linear strands called Chromatin (Structure of Chromatin). During cellular division chromatin assumes the characteristic shape of chromosomes. Normal metabolizing cells or somatic cells in humans have 46 chromosomes, with 22 chromosomes having nearly identical copies of each other, called ''homologous chromosomes''. In females chromosome 23 consists of two nearly identical copies called X-chromosome. In males chromosome 23 consists of a X-chromosome and a Y-chromosome.
36. A gene is the basic physical and functional unit of heredity. Genes are made up of DNA and act as instructors to make molecules called proteins. It is estimated that human beings have anywhere between 20000 to 25000 genes in them.
37. Every person has two copies of each gene; one inherited from each parent. Though most of the genes are the same in all the people, but a small number of these genes slightly differ from person to person. Alleles are the forms of the same gene with small differences in the sequence formation of the DNA bases, which distinguish themselves and contribute to each person''s unique physical features. If this can be segregated, then the identification of the sources of the gene becomes easy.
38. The first step to making a genetic fingerprint requires getting a sample of DNA. This sample can come from blood, semen, hair or saliva, and may be an extremely small sample. The root from a single strand of hair is enough for researchers to work with. This sample contains white blood cells which are broken open using detergent, and all the useable DNA is separated from the extra cellular material.
39. A commonly adopted procedure for DNA finger printing is ''Restriction Fragment Length Polymorphism'' (RFLP). In this method, DNA is extracted from a sample and cut into smaller segments using special restriction enzymes. Restriction enzymes work by cutting the DNA at a specific sequence, which produces either blunt ends or sticky ends, and results in many fragments of different lengths. RFLP focuses on segments that contain sequences of repeated DNA bases, which vary widely from person to person. The segments are separated using a laboratory technique called electrophoresis, which sorts the fragments by length. The segments are radioactively tagged to produce a visual pattern known as an auto-radiograph, or "DNA fingerprint", on X-ray film. A newer method known as ''Short Tandem Repeats'' (STR) analyzes DNA segments for the number of repeats at 13 specific DNA sites. The chance of misidentification in this procedure is one in several billion.
40. Therefore, DNA finger printing test undoubtedly offers credible material for establishing the paternity of a person. The Supreme Court had occasion to consider the efficacy and the legal force behind conducting the DNA finger printing test in several cases. Importantly, the question was debated at considerable length in
41. The principles on the subject have been summarized by the Supreme Court in the following manner:
1. A matrimonial court has the power to order a person to undergo medical test.
2. Passing of such an order by the Court would not be in violation of the right to personal liberty under Article 21 of the Indian Constitution.
3. However, the Court should exercise such a power if the applicant has a strong prima facie case and there is sufficient material before the Court. If despite the order of the Court, the respondent refuses to submit himself to medical examination, the Court will be entitled to draw an adverse inference against him.
42. Again in
43. Again this question engaged the attention of the Supreme Court in
44. Therefore, applying these principles to the present case, in my opinion the Court has erred in exercising its jurisdiction at the present moment of the suit in ordering for the DNA test on the petitioner. The Court should have waited till such time the plaintiff has produced necessary evidence, to convince the Court that the 1st defendant in the suit, the petitioner herein did really marry the 2nd defendant, the mother of the plaintiff, and gained access to her before ordering for the DNA finger printing test. I, therefore, consider that the present stage of the suit is a premature one for ordering the DNA test. The Court should have realized the blood samples of the plaintiff, his mother, the 2nd defendant and the 1st defendant to be sent up for DNA finger printing analysis if a strong prima facie material about the marriage between the parties and the 1st defendant has gained access to the 2nd defendant, has been produced before it by the plaintiff.
45. Therefore, I have no hesitation to allow this revision by setting aside the order passed in I.A. No. 318 of 2012 in O.S. No. 133 of 2012 on the file of learned I Additional Junior Civil Judge, Eluru and remit the said Interlocutory Application for consideration afresh at a later point of time.
46. Accordingly, the C.R.P. No. 2961 of 2013 is allowed and the C.R.P. No. 2980 of 2013 is dismissed. No order as to costs. The miscellaneous petitions, if any pending in these revisions, shall stand closed.
