- 1 - HC-KAR NC: 2025:KHC-D:17040 WP No. 100131 of 2023 IN THE HIGH COURT OF KARNATAKA, AT DHARWAD DATED THIS THE 2ND DAY OF DECEMBER, 2025 BEFORE THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE WRIT PETITION NO. 100131 OF 2023 (GM-CPC) BETWEEN: 1. SRI. LAXMAN S/O YALLAPPA WAGENNAWAR, AGED ABOUT 39 YEARS, OCC. AGRICULTURE, 2. SMT. KALLAWWA W/O. YALLAPPA WAGENNAWAR, AGED ABOUT 60 YEARS, OCC. HOUSEHOLD WORK, BOTH ARE R/AT: JAMKHANDI, TQ. JAMKHANDI, DIST. BAGALKOT-587 301. … PETITIONERS (BY SRI. MRUTYUNJAY TATA BANGI, ADVOCATE) AND: 1. SRI. YALLAPPA S/O. BALAPPA WAGENNAWAR, AGED ABOUT 72 YEARS, OCC. H/W, R/AT: OUTI GALLI, JAMKHANDI, TQ. JAMKHANDI, DIST. BAGALKOTE-587 301. 2. SMT. LAXMIBAI W/O. YALLAPPA WAGENNAWAR, AGED ABOUT 66 YEARS, OCC. H/W, R/AT: JUNJARWAD, TQ. ATHANI, DIST. BELAGAVI NOW R/AT: AWATI GALLI, JAMKHANDI, DIST. BAGALKOT-587 301. 3. SRI. PRAKASH S/O. YALLAPPA WAGENNAWAR, AGED ABOUT 54 YEARS, OCC. H/W, R/AT: JUNJARWAD, TQ. ATHANI, DIST. BELAGAVI NOW AT R/AT: AWATI GALLI, JAMKHANDI, DIST. BAGALKOT-587 301. 4. SRI. RAMESH S/O. YALLAPPA WAGENNAWAR, Digitally signed by CHANDRASHEKAR LAXMAN KATTIMANI Location: HIGH COURT OF KARNATAKA DHARWAD BENCH - 2 - HC-KAR NC: 2025:KHC-D:17040 WP No. 100131 of 2023 AGED ABOUT 54 YEARS, OCC. H/W, R/AT: JUNJARWAD, TQ. ATHANI, DIST. BELAGAVI NOW R/AT: AWATI GALLI, JAMKHANDI, DIST. BAGALKOT-587 301. 5. SRI. SIDDU S/O. YALLAPPA WAGENNAWAR, AGED ABOUT 38 YEARS, OCC. TRADE, R/AT: JUNJARWAD, TQ. ATHANI, DIST. BELAGAVI, NOW R/AT: AWATI GALLI, JAMKHANDI, DIST. BAGALKOT-587 301. 6. SRI. HANAMANT S/O. YALLAPPA WAGENNAWAR, AGED ABOUT 38 YEARS, OCC. TRADE, R/AT: JUNJARWAD, TQ. ATHANI, DIST. BELAGAVI, NOW R/AT: AWATI GALLI, JAMKHANDI, DIST. BAGALKOT-587 301. 7. SRI. RAJU S/O. YALLAPPA WAGENNAWAR, AGED ABOUT 41 YEARS, OCC. TRADE, R/AT: JUNJARWAD, TQ. ATHANI, DIST. BELAGAVI, NOW R/AT: AWATI GALLI, JAMKHANDI, DIST. BAGALKOT-587 301. 8. SMT. MALASHREE D/O. YALLAPPA WAGENNAWAR, AFTER MARRIAGE, SMT. MALASHREE W/O. BASAPPA TUNGALI @ SAMANGALI, AGED ABOUT 37 YEARS, OCC. H/W, R/AT: BANDIGANI NOW R/AT: AWATI GALLI, JAMKHANDI, DIST. BAGALKOT-587 301. … RESPONDENTS (BY SRI. MALLIKARJUN C. HUKKERI, ADVOCATE FOR R1 TO R8) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT IN THE NATURE OF CERTIORARI OR ANY OTHER WRIT OR DIRECTION AND SET ASIDE THE ORDER PASSED BY THE PRL. SENIOR CIVIL JUDGE AND JMFC JAMKHANDI IN O.S. NO.25 OF 2011 ON I.A. NO.VII DATED 03/11/2022 FILED UNDER ORDER 26 RULE 10(A) OF CPC COPY AS PER ANNEXURE-E AND ETC. - 3 - HC-KAR NC: 2025:KHC-D:17040 WP No. 100131 of 2023 THIS PETITION COMING ON FOR FURTHER HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: ORAL ORDER (PER: THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE) This petition is filed assailing the order dated 03.11.2022 passed by the Principal Civil Judge, Jamkhandi in O.S. No.25/2011 on I.A. No.VII rejecting the petitioners’ application under Order XXVI Rule 10(A) read with Section 151 of the Code of Civil Procedure. 2. The petitioners filed a suit for partition and separate possession. When the case is posted for arguments, plaintiffs filed an application to conduct a DNA test of the plaintiffs to establish their paternity with defendant No.1. Plaintiff No.1 had made a claim that he is the son of Defendant No.1 and plaintiff No.2 and that the marriage between plaintiff No.2 and defendant No.1 is valid and legal. 3. The defendant No.1 has denied the status of plaintiff No.2 as legally wedded wife and also plaintiff No.1 - 4 - HC-KAR NC: 2025:KHC-D:17040 WP No. 100131 of 2023 as the son, when defendant No.1 claims that defendant No.2 is the legally wedded wife and when defendants No.3 to 8 are children of defendant No.1. The application is opposed by the defendants. 4. The Trial Court has referred to the judgment of the Hon’ble Apex Court in Bhabani Prasad Sena Vs. Convenor Secretary, Orissa State Commission for Women and another1 to reject the application on the premise that the DNA test is a sensitive issue. The Trial Court has held that such test invade the right of privacy of an individual. 5. The Trial Court has also referred to the judgment of the Hon’ble Apex Court in Ashok Kumar vs. Raj Gupta and Others2. Said decision is relating to the burden of proof. The Court opined that the burden is on the defendants to prove that plaintiff No.1 is not the son of defendant No.1. 1 (2010) 8 SCC 633 2 (2022) 1 SCC 20 - 5 - HC-KAR NC: 2025:KHC-D:17040 WP No. 100131 of 2023 6. Heard the learned counsel appearing for the petitioners and the learned counsel appearing for the respondents. 7. Learned counsel appearing for the petitioners would urge that the Apex Court in the case of Ivan Rathinam vs. Milan Joseph3 has held that the test of paternity and legitimacy are two different and independent concepts and the DNA test to establish paternity can be ordered in case the Court finds that evidence is insufficient. 8. It is required to be noticed that the defendant No.1 has taken a contention that plaintiff No.1 is not his son. In other words, he is trying to attach a stigma on plaintiff No.1 by saying that he is not his son. Plaintiff No.1 is ready to undergo the test. Thus, one cannot conclude that such test would invade the privacy of the plaintiff No.1 who himself has offered to undergo the DNA test. 3 AIR 2025 SC 1004 - 6 - HC-KAR NC: 2025:KHC-D:17040 WP No. 100131 of 2023 9. In Nandalal Wasudeo Badwaik v. Lata Nandal Badwaik and another4, the Apex Court has relied on the DNA test to determine the paternity. 10. Under the facts and circumstances obtained in the case, the Court is of the view that the plaintiff No.1 is justified in filing the application for DNA test to establish his paternity. 11. It is also required to be noticed that the Trial Court has not held that the evidence on record is more than sufficient to give a finding. Even if the finding is to be recorded based on the oral evidence that finding would be based on inferences and deductions which may not be always correct as there is scope for error. 12. Under these circumstances, the impugned order is unsustainable and liable to be set-aside. Hence, the following: 4 (2014) 2 SCC 576 - 7 - HC-KAR NC: 2025:KHC-D:17040 WP No. 100131 of 2023 ORDER (i) Petition is allowed. (ii) The impugned order dated 03.11.2022 passed by the Principal Civil Judge, Jamkhandi in O.S. No.25/2011 on I.A. No.VII is set-aside. (iii) The petitioner No.1 and defendant No.1 shall furnish their blood samples to procedure for conducting DNA test to find out whether the plaintiff No.1 is biological son of defendant No.1. (iv) The opinion of the expert shall not be disclosed to any third party and same shall be submitted to the Court in a sealed cover. Sd/- (ANANT RAMANATH HEGDE) JUDGE CHS CT:BCK LIST NO.: 1 SL NO.: 58