Punjab-Haryana High Court
Darshan Singh vs Amarjit Singh @ Surjit Singh @ Kaka Singh ... on 21 July, 2014
Author: Jaswant Singh
Bench: Jaswant Singh
CR No.2614 of 2014 #1#
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH.
Date of Decision:-July 21st, 2014
CR No.2614 of 2014
Darshan Singh
......Petitioner.
Versus
Amarjit Singh @ Surjit Singh @ Kaka Singh & Ors.
......Respondents.
AND
CR No.3104 of 2014
Swaran Kanta
......Petitioner.
Versus
Amarjit Singh @ Surjit Singh @ Kaka Singh & Ors.
......Respondents.
CORAM:- HON'BLE MR. JUSTICE JASWANT SINGH
Present:- Mr. V.K. Jain, Senior Advocate assisted by
Mr. J.L. Malhotra, Advocate for the Petitioner.
***
JASWANT SINGH, J.
Vide this common order, I shall dispose of both the aforementioned two Civil Revisions as they arise out of common order passed by the learned trial Court dated 25.03.2014, whereby the Court has allowed the applications of the plaintiff for conducting DNA test of plaintiff, defendant no.1 (petitioner in CR No 2614 of 2014), defendants no Mahajan Vinay 2014.07.22 10:27 I attest to the accuracy and integrity of this document at Chandigarh CR No.2614 of 2014 #2# 2, 3 and Swaran Kanta (who is petitioner in CR No.3104 of 2014).
In brief facts of the case are that Amarjit Singh @ Surjit Singh @ Kaka Singh alleges himself to be son of Darshan Singh(defendant no.1) and filed the present suit for declaration before the trial Court to the effect that he is son of Darshan Singh and that Amarjit Singh and Surjit Singh are one and the same person and further that he is entitled to get corrected his father's name as Darshan Singh instead of Darshan Lal in all the documents, certificates etc. A consequential relief of permanent injunction was also sought for restraining defendant no.1 Darshan Singh from dispossessing and interfering in the possession of the plaintiff in the land measuring 76 Kanals 3 Marlas. As per the case set out by the plaintiff, he is son born out of the wedlock of Darshan Singh and Ageyawanti and after the death of Ageyawanti, he was brought up by defendant nos.2 & 3 i.e. his real Aunt (Bua) and her husband Darshan Lal. It is the further case of the plaintiff that Darshan Singh-defendant no.1 solemnized second marriage with Janak Rani, from whom two daughters, namely, Savita Rani and Mamta and one son, namely, Deepak Kumar were born. Since Darshan Singh did not accept the plaintiff as his natural son, the present suit for declaration was filed.
Upon notice, Darshan Singh denied that the plaintiff is his natural son and rather pleaded that he is the natural born son of defendant nos.2 & 3.
In their separate written statement, the defendant nos.2 & 3 have accepted the claim of the plaintiff.
After both the parties had led their respective evidence, the plaintiff in his rebuttal evidence moved the present two applications. Firstly, for conducting DNA test of plaintiff Amarjit and Leelawanti (defendant Mahajan Vinay 2014.07.22 10:27 I attest to the accuracy and integrity of this document at Chandigarh CR No.2614 of 2014 #3# no.3) to determine their relationship and the second application for conducting DNA test to determine the relationship of plaintiff Amarjit Singh @ Surjit Singh @ Kaka Singh and Darshan Singh(defendant no.1).
Vide impugned order the learned trial Court has directed the parties to give their blood samples for the purpose of DNA test and has gone further by suo motto directing Swaran Kanta (not a party to the suit) to also give her blood sample for the purpose of determining as to whether the plaintiff is natural born son of Darshan Singh-defendant no.1.
Learned Counsel for the petitioner (Darshan Singh) has argued that the learned trial Court has committed grave illegality by entertaining the application at such a belated stage, as it is an admitted fact that both the parties have lead their respective evidence and the matter was fixed for rebuttal evidence and arguments. It has further been argued that when plaintiff appeared in the witness box, his parentage has been recorded as son of Darshan Lal and not son of Darshan Singh and thus, it was argued that this fact also shows that plaintiff is not the son of defendant no.1/Petitioner and thus, there is no requirement of conducting the DNA test.
Learned Counsel on behalf of petitioner-Swaran Kanta has argued that learned trial Court has directed her to give blood sample for the purpose of DNA test, although she was neither a party to the lis nor any notice of the application was given to her and thus, the order directing Swaran Kanta to give her blood sample is against the law. It has been further argued that Swaran Kanta was married in the year 1986 and there is a possibility of her being Bastardized if DNA result does not match with Darshan Singh. Thus, prayer was made on her behalf as well for setting aside the impugned order. To support their case, learned Counsel for the Mahajan Vinay 2014.07.22 10:27 I attest to the accuracy and integrity of this document at Chandigarh CR No.2614 of 2014 #4# petitioners has relied upon Goutam Kundu Vs. State of West Bengal & Anr. (1993)3 Supreme Court Cases 418, Banarsi Dass Vs. Teeku Dutta (Mrs.) & Anr. (2005)4 Supreme Court Cases 449 & Ramkanya Bai Vs. Bharatram (2010)1 Supreme Court Cases 85 to argue that the Courts should not allow such applications as a matter of routine and there has to be a strong case met out for ordering such a test, especially when the party is not willing to give the blood samples.
After hearing learned Counsel for the petitioners and perusing the paper book this Court is of the considered view that both the aforesaid revision petitions are devoid of any merit and the same deserves to be dismissed.
In the present case, as is evident from the facts narrated above, the dispute is regarding the paternity of plaintiff who claims himself to be natural born son of Darshan Singh whereas Darshan Singh claims that he is the son of his sister Leelawanti (defendant no 3) and her husband Darshan Lal (defendant no 2). A perusal of the record reveals that a Will dated 1.12.2006 has been proved on record by the plaintiff as Ex.P-8, which shows that defendant no.1 Darshan Singh is the testator of the said Will, in which he has specifically stated that he has got two sons namely Surjit Singh and Jasbir Singh and three daughters. He has married his three daughters and does not want to give anything to them. As per the Will he also does not want to give anything to his son Surjit Singh as Surjit Singh was adopted by his real sister Leelawanti(defendant no.3) and is residing with her at Phagwara. It has further come on record that, two months after the execution of the said Will, the present suit was filed. It is also evident from the record that defendant no.1 Darshan Singh cancelled Will (Ex P-8) Mahajan Vinay 2014.07.22 10:27 I attest to the accuracy and integrity of this document at Chandigarh CR No.2614 of 2014 #5# on 14.08.2008 and same is also proved on record as Ex.D-1. Darshan Singh has tried to explain by leading evidence that his son Deepak Kumar is also known as Surjit and that plaintiff is not known by the name of Surjit as alleged by him. The Court is yet to come to a conclusion as to whether Amarjit Singh is also known by the name of Surjit or not. However, the plaintiff has been able to make out a strong prima facie case in his favour to show that he is the natural born son of defendant no.1 Darshan Singh for the purpose of conducting the DNA test and therefore, the learned trial Court had rightly ordered the said DNA test.
As far as the argument regarding the application being allowed at the stage of rebuttal evidence and arguments is concerned, it is settled position of law that if the Court finds that for the purpose of proper adjudication of the matter, certain evidence is required to be taken, then there is no bar for the trial Court to allow evidence to be taken at the stage of rebuttal evidence/arguments. Even otherwise, evidentiary value of DNA test has to be evaluated as per provisions of Section 112 of the Indian Evidence Act at the time of final arguments and at this stage, the Court is only required to see as to whether there is a prima facie case for allowing the said application or not. To support my view, I rely upon the judgment passed by a three Judges Bench of Hon'ble Supreme Court in case titled as Sharda Vs. Dharam Pal AIR 2003 Supreme Court 3450. In the said judgment, Hon'ble Supreme Court had held as follows:-
"39. Goutam Kundu (supra) is therefore, not an authority for the proposition that under no circumstances the Court can direct that blood tests be conducted. It, having regard to the future of the child, has, of course, sounded a note of caution as regard mechanical passing of such order. In some other jurisdictions, it has been held that such directions should ordinarily be made if it is in the interest of the child.Mahajan Vinay 2014.07.22 10:27 I attest to the accuracy and integrity of this document at Chandigarh
CR No.2614 of 2014 #6#
80. The matter may be considered from another angle. In all such matrimonial cases where divorce is sought, say on the ground of impotency, schizophrenia...etc. Normally without there being medical examination, it would be difficult to arrive at a conclusion as to whether the allegation made by his spouse against the other spouses seeking divorce on such a ground, is correct or not. In order to substantiate such allegation, the petitioner would always insist on medical examination. If respondent avoids such medical examination on the ground that if violates his/her right to privacy or for a matter right to personal liberty as enshrined under Article 21 of the Constitution of India, then it may in most of such cases become impossible to arrive at a conclusion. It may render the very grounds on which divorce is permissible nugatory. Therefore, when there is no right to privacy specifically conferred by Article 21 of the Constitution of India and with the extensive interpretation of the phase "personal liberty"
this right has been read into Article 21, it cannot be treated as absolute right. What is emphasized is that some limitations on this right have to be imposed and particularly where two competing interests clash. In mattes of aforesaid nature where the legislature has conferred a right upon his spouse to seek divorce on such grounds, it would be the right of that spouse which comes in conflict with the so-called right to privacy of the respondent. Thus, the Court has to reconcile these competing interests by balancing the interest involved."
Thus, there remains no dispute regarding the fact that in appropriate cases such as this one, where the Court finds that there is sufficient prima facie evidence for the purpose of conducting the DNA test, then the test should be allowed so that a child who claims himself to be natural son of a particular person is able to conclusively either prove or disprove the fact because by passage of time, scientific methods have evolved to such an extent that it is now possible to conclusively determine the actual parentage of a child.
Furthermore, at this stage no prejudice would be caused to the petitioners and infact, by not allowing the test, prejudice is likely to be caused to the plaintiff.
As far as the another plea of learned Counsel for the petitioner Darshan Singh regarding mentioning of father's name of plaintiff as Darshan Mahajan Vinay 2014.07.22 10:27 I attest to the accuracy and integrity of this document at Chandigarh CR No.2614 of 2014 #7# Lal at the time of deposing before the court is concerned, this Court is of the view that since the entire case set out by the plaintiff is that he is son of Darshan Singh but in the record his name has been recorded as son of Darshan Lal, then this argument does not hold much ground in view of the peculiar facts and circumstances of the present case.
As far as the plea taken by Swaran Kanta that she was not a party to the lis and, therefore, the order is wrong, seems to be attractive on the first blush, however, when scrutinized minutely, same is found to be devoid of merit as well. In view of the facts discussed above, this Court is of the view that her examination is extremely important. Admittedly, Ageyawanti has died and Swaran Kanta, who appeared in the witness box as DW-2 was also born from the wedlock of Darshan Singh with Ageyawanti. There is no dispute regarding the parentage of Swaran Kanta. The dispute is regarding the parentage of plaintiff Amarjit Singh @ Surjit Singh @ Kaka Singh. Since the blood samples of father matches with the DNA profile of his children to the extent of 50%, therefore, for the purpose of conclusively proving the fact that plaintiff was born out of the wedlock of Darshan Singh with Ageyawanti, sample of Swaran Kanta would be very important because from Swaran Kanta, Ageyawanti's DNA profile can also be taken for the purpose of ascertaining the paternity of the plaintiff.
Thus, in view of the above facts, the arguments of the learned Counsel for the petitioner Swaran Kanta, are also devoid of any merit and have to be rejected.
Before parting with the judgment, it is apposite to consider the judgments referred to by learned Counsel for the petitioners. No doubt, the judgments have held that ordinarily the applications for conducting the Mahajan Vinay 2014.07.22 10:27 I attest to the accuracy and integrity of this document at Chandigarh CR No.2614 of 2014 #8# DNA test should not be allowed, however, in view of the authoritative judgment of the Hon'ble Supreme Court in Sharda's case (Supra), whereby Goutam Kundu's case(Supra) has also been discussed and thereafter distinguished, the judgments relied upon by petitioners are of little help to them. Not only this, the Hon'ble Delhi High Court in Shri Rohit Shekhar Vs. Shri Narayan Dutt Tiwari & Anr. 2011(2) CCC 88, after considering all the judgments of the Hon'ble Supreme Court as well as by referring to the three Judges Bench of Hon'ble Supreme Court in Sharda's case (Supra) has culled out the following principles:-
(i) The conclusive proof standard mandated by Section 112 of the Evident Act, read with Section 4, admits an extremely limited choice before the Court, to allow evidence of "non access" to a wife by the husband, who alleges that the child begotten by her is not his offspring; it is designed to protect the best interest of the child, and his legitimacy
(ii) A "paternity" action by the son or daughter of one, claiming the defendant to be his or her biological father, filed in Court, particularly after the plaintiff as in this case, attains adulthood, or claims paternity, for other reasons, (such as non consensus sexual relationship the basis of fact, and on the basis of the child rights/either under Section 125 Criminal Procedure Code, or in a suit for declaration or for maintenance) cannot be jettisoned by shutting out evidence , particularly based on DNA test reports, on a threshold application of Section 112; the Court has to weigh all pros and cons, and, following the ruling in Kundu and Jena (Supra), on being satisfied about existence of "eminent need" make appropriate orders;
(iii) The development of the statute law-through enactment of the Hindu Adoptions and Maintenance Act, 1956, the Criminal Procedure Code, 1973 and the Family Courts Act, 1984, read together with a child's right to knowledge about her or his natural parentage has added a new dimension where the concept of paternity or a claim, cannot be ousted by Section 112 and Mahajan Vinay 2014.07.22 10:27 I attest to the accuracy and integrity of this document at Chandigarh CR No.2614 of 2014 #9# concerns of legitimacy, underlying it.
(iv) On the facts of this case and the materials on record, the Court is satisfied that there is eminent need to direct the first defendant to furnish his blood samples, for the purpose of DNA testing;
This Court is in complete agreement with the principles that have been summarized by the Hon'ble Delhi High Court and the said principles are squarely applicable to the facts of the present case.
In view of the above, finding no merit in both the aforesaid revision petitions, the same are hereby dismissed.
( JASWANT SINGH ) JUDGE July 21st, 2014 Vinay Mahajan Vinay 2014.07.22 10:27 I attest to the accuracy and integrity of this document at Chandigarh