Madhya Pradesh High Court
Anoop Singh vs Hanumant Singh on 29 July, 2025
NEUTRAL CITATION NO. 2025:MPHC-GWL:15901
1 MP-768-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE RAJENDRA KUMAR VANI
ON THE 29th OF JULY, 2025
MISC. PETITION No. 768 of 2024
ANOOP SINGH
Versus
HANUMANT SINGH AND OTHERS
Appearance:
Shri Prashant Sharma - learned counsel for the petitioner.
Shri Prabhat Pateriya - learned Government Advocate for the
respondent No.8/State,
Shri Abhisehk Singh Bhadauria - learned counsel for the respondents
No.1,3 and 5.
ORDER
This miscellaneous petition has been filed by the petitioners under Article 227 of the Constitution of India seeking following reliefs :
(i). The Order impugned Annexure P/1 may kindly be quashed;
(ii) The Application preferred by petitioner under Section 45 of Indian Evidence Act read with Section 151 of CPC may kindly be allowed; | Any other relief which this Hon'ble Court deems fit in the facts and circumstances of the case may also kindly be granted.
2. It is submitted by the learned counsel for the petitioner that vide impugned order dated 23.1.2024 an application under Order 45 of the Evidence Act has been erroneously rejected by the learned Trial Court on the Signature Not Verified Signed by: MOHD AHMAD Signing time: 8/1/2025 10:28:09 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:15901 2 MP-768-2024 basis that a direction for DNA test cannot be granted against the will of the father. It is further submitted that the entire case of plaintiff is depended upon paternity issue and therefore, without their being any DNA test, issue cannot be resolved. He also relied upon the judgement passed by the Supreme Court in the case of Narayan Dutt Tiwari and others vs. Rohit Shekhar (2012) 12 SCC 554 and the judgment passed by the Co-ordinate Bench of this Court in the case of Praveen Tiwari v. Smt. Anita Upadhyay and other in Second Appeal No.322 of 2020 . Hence, he prays to set aside the order dated 23.1.2024.
3. Per contra- learned counsel for the respondents has submitted that the DNA test was directed in a case of Narayan Dutt Tiwari (supra) at the stage of second appeal. He relied upon the judgment passed by the Supreme Court in the case of Ashok Kumar v. Raj Gupta and others 2022 1 SCC 20 and Radha Bai vs. Ram Narayan and others 2019 0 Supreme (SC) 1289. He also relied upon the judgement passed by the Co-ordinate Bench of this Court in the cases of Suraj Singh Tomar vs. Smt. Meenahsi Tomar and another in M.Cr.C. No.39112 of 2020, Urmial Singh vs. Saudan Singh and others in W.P. No.4131 of 2017, Raghuvansh and others vs. Ramkali & others 2023 3 MPLJ 655, Chandrakanta vs. Ashok Kumar in C.R. No.575 of 1997, Vikram Singh v. Anil Kumar and others in Civil Revision No.42 of 2017 and Premlata and others v. Ramkishor and others in S.A. No.333 of 2019 and relied upon the judgment passed by the Kerala High in the case of Sujith Kumar vs. Vinaya and others in OP(CRL) No.631 of 2023. The Court directed that it is incumbent on the parties first to lead the evidence in respect Signature Not Verified Signed by: MOHD AHMAD Signing time: 8/1/2025 10:28:09 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:15901 3 MP-768-2024 of the controversy involved in the case and after the evidence is over if the Court thinks that DNA test is necessary in the light of the evidence, then the Court may issue a direction for DNA test. But here in this case, the evidence is yet to be started and at preliminary stage, no such direction could be issued. Moreover, the core issue in the suit is not depended on paternity. If, for the sake of argument, the paternity is proved even though the plaintiff cannot be succeeded in this case because the birth of plaintiff is after 1956 and therefore, he has no birth right. Whatever his claim in the property that can be claimed after the death of father. Hence, he prays to dismissed the petition.
4. Heard the learned counsel for the parties and perused the record.
5. The relevant paragraphs 10 and 11 of the judgment in the case of Suraj Singh (supra) read as under:
10. Learned Family Court has rejected the application under Section 45 of the Evidence Act relying on the judgment passed in the case of Sunil Eknath Vs. Leelavati reported in AIR 2006 Bom 140, in which it is held that the parties may be directed to first produce the evidence and if it is found that it is difficult to come to the conclusion, then only the DNA test may be ordered.
11. In view of the aforesaid facts and circumstances, while analyzing the factual and legal background of this case as also while considering the judgments of the Courts relied upon by the parties and the reasons assigned by the learned Family court for rejection of the application, this Court is of the view that the learned Family Court has rightly rejected the application and directed the parties to bring the evidence on record.
This Court does not find any error so as to invoke the extraordinary jurisdiction of this Court under Section 482 of Cr.P.C. The petition being devoid of merits is hereby dismissed.
6. In the case of Urmila Singh (supra) while discussing the case of Signature Not Verified Signed by: MOHD AHMAD Signing time: 8/1/2025 10:28:09 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:15901 4 MP-768-2024 Bhabani Prasad Nena vs. Orissa State State Commission (2010) 8 SCC 633 it is observed by the Co-ordinate Bench of this Court that in the circumstances where other evidence is available to prove or dispute the relationship, the Court should ordinarily refrain from ordering blood tests. This is because such tests impinge upon the right of privacy of an individual and could also have major societal repercussions. Indian law leans towards legitimacy and frowns upon bastardy. The presumption in law of legitimacy of a child cannot be lightly repelled.
7. In the case of Raghuvansh and others (supra) while discussing the case of Banarsi Dass v. Teeku Dutta (2005) 4 SCC 449, it is observed by the Co-ordinate Bench of this Court that the trial court being a testamentary court, the parties should be left to prove their respective cases on the basis of the evidence produced during trial, rather than creating evidence by directing DNA test. When there is apparent conflict between the right to privacy of a person not to submit himself forcibly to medical examination and duty of the court to reach the truth, the court must exercise its discretion only after balancing the interests of the parties and on due consideration whether for a just decision in the matter, DNA test is eminently needed. DNA test in a matter relating to paternity of a child should not be directed by the court as a matter of course or in a routine manner, whenever such a request is made. The court has to consider diverse aspects including presumption under Section 112 of the Evidence Act; pros and cons of such order and Signature Not Verified Signed by: MOHD AHMAD Signing time: 8/1/2025 10:28:09 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:15901 5 MP-768-2024 the test of "eminent need" whether it is not possible for the court to reach the truth without use of such test.
8. The relevant paragraph 15 and 16 of the judgment passed by the Supreme Court in the case of Ashok Kumar (supra) reads as under:
15. DNA is unique to an individual (barring twins) and can be used to identify a person's identity, trace familial linkages or even reveal sensitive health information. Whether a person can be compelled to provide a sample for DNA in such matters can also be answered considering the test of proportionality laid down in the unanimous decision of this Court in K.S. Puttaswamy (Aadhaar-5 J.) v. Union of India [K.S. Puttaswamy (Aadhaar-5 J.) v. Union of India, (2019) 1 SCC 1], wherein the right to privacy has been declared a constitutionally protected right in India. The Court should therefore examine the proportionality of the legitimate aims being pursued i.e. whether the same are not arbitrary or discriminatory, whether they may have an adverse impact on the person and that they justify the encroachment upon the privacy and personal autonomy of the person, being subjected to the DNA test.
16. It cannot be overlooked that in the present case, the application to subject the plaintiff to a DNA test is in a declaratory suit and the plaintiff has already adduced evidence and is not interested to produce additional evidence (DNA), to prove his case. It is now the turn of the defendants to adduce their evidence.
At this stage, they are asking for subjecting the plaintiff to a DNA test. Questioning the timing of the application the trial court dismissed the defendants' application and we feel that it was the correct order.
9. In the case of Sujith Kumar S (supra) the Kerala High Court has also observed that the parties should be directed to lead evidence to prove the dispute of factum of paternity and only when the court finds it impossible to draw an inference based on such an Signature Not Verified Signed by: MOHD AHMAD Signing time: 8/1/2025 10:28:09 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:15901 6 MP-768-2024 evidence or the controversy in issue cannot be resolved without DNA test, it may direct the DNA test and not otherwise. To put it differently, only in rare and exceptional cases of a deserving nature, DNA test or any other scientific test become indispensable to resolve the controversy.
10. In the case of Chandrakanta (supra), Radha Bai (supra) and Premlata (supra) wherein it has been held that the theory of birth right in ancestral property does not exist, if the son is born after coming into force of Hindu Succession Act in 1956.
11. Though in the case of Praveen Tiwari (supra) and Narayan Dutt Tiwari (supra) the DNA test has been directed to be conducted to find out the paternity but keeping in view the attending facts and circumstances of the case and the law laid down in the case of Suraj Singh(supra) Urmila Singh(supra), Ashok Kumar (supra) and Sujith Kumar (supra) it would be in fitness of things to direct parties to the lis to adduce the oral and documentry evidence and thereafter, if it is found that DNA test is inevitable to find out the paternity in that case such test can be directed to be conducted by the trial Court.
12. Here in this case, admittedly, no evidence has been adduced before learned Trial Court and the plaintiff evidence is yet to be started; therefore, a liberty may be granted in favour of the petitioner/plaintiff that he may file an application after the evidence from both the sides is over. If such application is filed before the learned Trial Court, the trial Court is directed to decide Signature Not Verified Signed by: MOHD AHMAD Signing time: 8/1/2025 10:28:09 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:15901 7 MP-768-2024 it in accordance with law without being prejudice by the impugned order dated 23.1.2024.
13. In view of the aforesaid observation, this petition is disposed of.
(RAJENDRA KUMAR VANI) JUDGE Ahmad Signature Not Verified Signed by: MOHD AHMAD Signing time: 8/1/2025 10:28:09 AM