Himachal Pradesh High Court
Narinder Kumar vs Of on 18 August, 2015
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
CMPMO No.201 of 2015.
Judgment reserved on: 14.08.2015.
Date of decision: August 18th ,2015.
Narinder Kumar .....Petitioner.
Versus
of
Tej Ram alias Taru Ram and others .....Respondent s.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
rt Whether approved for reporting?1Yes For the Petitioner : Mr.Naveen K.Bhardwaj, Advocate.
For the Respondents : Mr.Sanjeev Kuthiala, Advocate with Ms.Ambika Kotwal, Advocate, for respondent No.1.
Tarlok Singh Chauhan, Judge.
The petitioner is a minor and by medium of this petition under Article 227 of the Constitution of India has taken exception to the order passed by the learned trial Court whereby it has directed him to undergo Deoxyribonucleic Acid (DNA) test.
The facts, in brief, may be noticed.
2. The plaintiff/respondent No.1 filed a suit for declaration to the effect that defendant No.6 (petitioner herein) was neither his legitimate or illegitimate son and, therefore, his name as entered in the records of Zonal Hospital, Mandi, in labour register dated 27.07.2004 as father of the petitioner and on the basis of this entry, the entry in the birth register of M.C., Mandi vide serial No.1536 dated 31.07.2004 and further the entry to this effect in the Office of Gram Panchayat, Dushad, Sub-Tehsil Sainj, be declared illegal and wrong.
Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 15/04/2017 18:46:10 :::HCHP 2
3. During the pendency of the suit, the plaintiff filed an application under Section 45 of the Indian Evidence Act readwith .
Section 151 of the Code of Civil Procedure with a prayer that the DNA test of the petitioner be conducted, which application stands allowed by the trial Court. The order has been assailed on the ground that in case the petitioner is compelled to undergo DNA test and the results appear of to be positive i.e. the petitioner is not the son of respondent No.1, then in that event, the petitioner would be declared a "bastard" and it would rt be difficult for him to stay in the society.
I have heard the learned counsel for the parties and have gone through the records of the case.
4. It has to be remembered that in a matter where paternity of a child is in issue before the Court, the use of DNA test is an extremely delicate and sensitive aspect. One view is that when modern science gives the means of ascertaining the paternity of a child, there should not be any hesitation to use those means whenever the occasion requires. The other view is that the Court must be reluctant in the use of such scientific advances and tools which result in invasion of right to privacy of an individual and may not be prejudicial to the rights of the parties but may have devastating effect on the child. Sometimes, the result of such a scientific test may bastardize an innocent child even though his mother and her spouse were living together during the time of conception. Any order for DNA test can be given by the Court only if a strong prima facie case is made out for such a course.
5. In Bhabani Prasad Jena versus Convenor Secretary, Orissa State Commission for Women and another (2010) 8 SCC 633, the Hon'ble Supreme Court has held that whenever there is a ::: Downloaded on - 15/04/2017 18:46:10 :::HCHP 3 conflict between the right of privacy of a person not to submit himself to medical examination and duty of the Court to reach the truth, the Court .
must exercise its discretion only after balancing the interest of the parties and on due consideration whether for a just decision in the matter, DNA test is eminently needed.
6. In Dipanwita Roy versus Ronobroto Roy (2015) 1 SCC of 365, the Hon'ble Supreme Court was dealing with a case pertaining to the alleged infidelity of the appellant therein and the husband wanted to rt prove and establish the ingredients of Section 13(1)(i) of the Hindu Marriage Act, 1955, namely, that after the solemnization of the marriage of the appellant with the respondent, the appellant therein had voluntarily engaged in sexual intercourse with a person other than the respondent. The Hon'ble Supreme Court held that the prayer made by the respondent for conducting DNA test of the appellant's son was aimed at the alleged adulterous behaviour of the appellant and, therefore, the issue of legitimacy was also incidentally involved. It was further held that depending on the facts and circumstances of each case, it will direct the holding of a DNA examination, but then it was specifically held that if the directions to hold such test can be avoided, it should be so avoided for the reasons that the legitimacy of a child should not be put to peril. It is apt to reproduce para-16 of the judgment which reads thus:-
"16. It is borne from the decisions rendered by this Court in Bhabani Prasad Jena v. Orissa State Commission for Women (2010) 8 SCC 633 and Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik (2014) 2 SCC 576 that depending on the facts and circumstances of the case, it would be permissible for a court to direct the holding of a DNA examination to determine the veracity of the allegation(s) which constitute one of the grounds, on which the party ::: Downloaded on - 15/04/2017 18:46:10 :::HCHP 4 concerned would either succeed or lose. There can be no dispute, that if the direction to hold such a test can be .
avoided, it should be so avoided. The reason, as already recorded in various judgments by this Court, is that the legitimacy of a child should not be put to peril."
7. The Court here is dealing with a case where the mother herself admits that she was never married to the plaintiff but would of claim that respondent No.1 was having access to her. It is pleaded in the written statement that the plaintiff's brother Maga was married to the rt sister of defendant No.5 named Leela Devi and on account of such relations the plaintiff and defendant No.5 were on visiting terms and developed illicit relations out of which the petitioner was conceived and thereafter born at Zonal Hospital, Kullu.
8. In the instant case, though the petitioner is born out of the alleged sexual relationship between respondent No.1 and defendant No.5, he has every right to live with all dignity and respect in the society. Therefore, in order to ascertain the truth regarding allegations made by respondent No.1 and to save defendant No.5 from possible stigma that could be attached to her and further to save the petitioner from being called "bastard" in the society, in my view, it is just and necessary to conduct the DNA test.
9. In view of the aforesaid discussion, I find no merit in this petition and the same is accordingly dismissed, leaving the parties to bear their own costs. Pending application, if any, also stands disposed of. Interim order dated 05.06.2015 is vacated.
August 18th, 2015. (Tarlok Singh Chauhan), (krt) Judge.
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