MINOR SHANMUGAM Vs. KARUPPIAH ALIAS KARUPPANNAN

JUDGEMENT

(1.) HEARD Mr. S. Parthasarathy, learned counsel for the petitioner. Thought the respondent has been served even on 29. 8. 1997, there is no appearance on his behalf. He was called absent. Arguments of the learned counsel for the petitioner were heard.

(2.) THE above revision has been filed against the order in i. A. No. 61 of 1997 in O. S. No. 346 of 1991 on the file of the District Munsif, kulithalia and dated 9. 6. 1997. THE petitioner herein has filed the suit claiming partition and separate possession of his 1/15 share in the suit properties which was comprised in several survey numbers and also for accounting. THE respondent herein who is the father of the petitioner was impleaded as the 2nd defendant, the petitioner's grand father was impleaded as the 1st defendant and he died pending suit. THE other legal heirs were impleaded as defendants in the suit. In the said suit the respondent herein/father of the petitioner disputed the fact that he is the father of the petitioner herein.

(3.) IN the decision reported in Goutam Kundu Vs. State of west Bengal, AIR. 1993 SC 2295 the Supreme Court has laid down that the presumption could itself be a rebuttal presumption and that a child born during the lawful wedlock is legitimate and that access occurred between the parents. This presumption can only be displaced by a strong preponderance of evidence, and not by a mere balance of probabilities. The Supreme Court has also referred to in its order a judgment of our high Court in Polavarapu Venkateswarly, minor by Guardian and Mother Manumamma v. Popavarapu Subbayya, 1951 (I) MLJ 580 : AIR 1951 Mad 910 wherein this Court held that if the parties are unwilling to offer their blood for a test of this kind this Court cannot force them to do so. IN the concluding para of its judgment the Supreme Court has observed as follows: "the effect of this section is this: there is a presumption and a very strong one though a rebuttable one. Conclusive proof means as laid down under Section 4 of the Evidence Act. From the above discussion it emerges: (1) that courts in INdia cannot order blood test as a matter of course; (2) Wherever applications are made for such prayers in order to have roving inquiry, the prayer for blood test cannot be entertained. (3) There must be a strong prima facie case in that the husband must establish non-access in order to dispel the presumption arising under section 112 of the Evidence Act. (4) The Court must carefully examine as to what would be the consequence of ordering the blood test; whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman. (5) No one can be compelled to give sample of blood for analysis. "