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2005 DIGILAW 769 (RAJ)

Ganpat v. Merta

2005-03-11

PRAKASH TATIA

body2005
Judgment Prakash Tatia, J.-Heard learned Counsel for the parties. 2. The petitioner is aggrieved by the order dated 27.08.2003 by which the trial Court rejected the petitioners application for DNA Test of the respondent No. 2. 3. Learned Counsel for the petitioner submits that the trial Court rejected the petitioners application only by drawing presumption under Section 112 of the Evidence Act and even if any presumption is drawn against the petitioner or in favour of the respondent No. 2, then also, the petitioner was entitled to have an opportunity to rebut the presumption but the trial Court while deciding the application of the petitioner, virtually recorded the legitimacy of the children of respondent No. 2 and related those children to the petitioner. 4. According to learned Counsel for the respondent No. 2, the trial Court has only drawn the presumption and there is no illegality in the presumption looking to the facts of the case as the marriage between the petitioner and the respondent No. 2 took place about more than 22 years ago and according to the respondent No. 2, they lived together for such a long period, therefore, the plea taken by the petitioner on the face of it is absolutely false. 5. I have considered the rival submissions. 6. It is clear from the facts mentioned in the impugned order itself that there are allegations and counter allegations. The trial Court proceeded to decide the controversy between the parties instead of deciding the application and recorded the finding that the presumption can be drawn in favour of the legitimacy of the children. In all circumstances, the petitioner was entitled to prove his case and also entitled to rebut the presumption if drawn in favour of the respondent No. 2 about legitimacy of the children. 7. In view of the Judgment of the Apex Court rendered in the case of Goutam Kundu vs. State of West Bengal & Anr., reported in AIR 1993 SC 2295 , relied by the trial Court itself , the trial Court should not have rejected the petitioners application and should not have drawn the presumption at this stage when both the parties are yet to lead their evidence. The Honble Supreme Court in Goutam Kundus case (Supra), clearly observed that the Courts in India cannot order blood test as a matter of course and the petition for roving enquiry for the blood test cannot be entertained. However, after holding so, the Honble Supreme Court held that there must be strong prima facie case that the husband had no access and he is able to dispel the presumption which can be raised under Section 112 of the Evidence Act and for that purpose, the Court must carefully examine as to what would be the consequences 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. It would be relevant to mention here that the Honble Apex Court in para 26 at point 5 also held that no one can be compelled to give sample of blood for analysis. 8. In view of the aforesaid Judgment of Apex Court in Goutam Kundus case (Supra), the petitioner had a right to rebut presumption if drawn against the petitioner and when a strong case is made out by the petitioner, then the prayer of the petitioner in the light of the aforesaid decision of Supreme Court can be considered by the trial Court after evidence of both the parties only which will be the appropriate stage in the peculiar nature of relief sought in the application by the petitioner. 9. In view of the aforesaid Judgment of Apex Court in Goutam Kundus case (Supra), strong prima facie case, in a matter where there is a demand of DNA test, requires to be construed strictly and for that purpose, it would be appropriate to order on application after the evidence of the parties and permit the parties to prove and challenge the report received after all other evidence of the parties. 10. Accordingly, this writ petition is allowed, the order of the trial Court dated 27.08.2003 is set aside, the application filed by the petitioner shall remain pending and will be considered after all other evidence produced by both the parties and appropriate order may be passed by the trial Court uninfluenced by any reason given in the impugned order dated 27.08.2003 and after carefully following the law laid down in the aforesaid Judgment of Apex Court. 11. The trial Court is directed to decide the matter expeditiously.