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Madhya Pradesh High Court · body

2010 DIGILAW 540 (MP)

Reena v. Ishwar

2010-05-11

I.S.SHRIVASTAVA, N.K.MODY

body2010
ORDER 1. Being aggrieved by the order dated 28.1.2010 passed by II Additional Family Court, Indore in Case No. 441/09 where by the application filed by the Petitioner for DNA test of the Respondent was dismissed, the present Petitioner has been filed. 2. Short facts of the case are that the Petitioner filed a petition against the Respondent for declaration that the marriage solemnized between the parties on 10.12.2004 be declared void. In the petition it was alleged that the marriage was solemnized on 10.12.2004 and out of the wedlock Petitioner was blessed with a son on 1.9.2005. Petitioner was contested by the Respondent by filing written statement wherein it was denied that the marriage was solemnized between the parties. It was also denied that son of the Petitioner is from the respondent. It was prayed that the petition be dismissed. In the circumstances an application was filed by the Petitioner wherein it was alleged that Respondent be sent for DNA test. The application was opposed by the respondent. After hearing the parties, learned Trial Court dismissed the application, against which present petition has been filed. 3. Leaned Counsel for Petitioner argued at length and submits that the impugned order passed by the learned Court below is illegal, incorrect and deserves to be set aside. It is submitted that in the written statement Respondent has denied the marriage and has also denied the paternity of the son of petitioner. It is submitted that at the earlier point of time Respondent himself offered for DNA test, therefore, there was no justification on the part of learned Court below in dismissing the application. Leaned Counsel placed reliance on a decision in the matter of Goutam Kundu v. Stage of West Bengal : AIR 1993 SC 2295 :III (1993) CCR 266 (SC) herein father disputing paternity of child and seeking blood test of child, Hon'ble Apex Court held that purpose of application is nothing more than to avoid payment of maintenance. While deciding the case Hon'ble Apex Court has also laid down certain principles which reads as under: (1) The Courts in India cannot order blood test as a matter of course. (2) Wherever applications are made for such prayer in order to have roving inquiry, the prayer for blood test cannot be entertained. While deciding the case Hon'ble Apex Court has also laid down certain principles which reads as under: (1) The Courts in India cannot order blood test as a matter of course. (2) Wherever applications are made for such prayer in order to have roving inquiry, the prayer for blood test cannot be entertained. (3) There must be a strong prima facie case in that the husband must establish non-access in order to dispel the presumption arising under Section 112 of the Evidence Act. (4) The Court must carefully examine as to what would be the consequence 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. (5) No one can be compelled to give sample of blood for analysis. 4. Learned Counsel for the Petitioner further placed reliance on a decision in the matter of Sharda v. Dharampal : AIR 2003 SC 3450 :I (2003) DMC 627 (SC) : III (2003) SLT 1 wherein Hon'ble Apex Court has held that in matrimonial proceedings, order to undergo medical test does not offend Article 21 of Constitution of India, however, such power has to be exercised only when applicant has strong prima facie case. On the strength of aforesaid position of law, learned Counsel submits that the petition filed by the Petitioner be allowed and the impugned order passed by the learned Counsel below be set aside with a direction to the learned Court below to direct the Respondent for DNA test. 5. From perusal of the record which is available with the petition it is evident that a number of photographs have been filed by the Petitioner, which goes to show that the marriage of the Petitioner was solemnized with the respondent. From perusal of the impugned order it is evident that the Court has not closed the right of the Petitioner for DNA test, but has only observed that it has been made clear to the Respondent that if the Respondent denied for DNA test, then presumption can be drawn against the respondent. Learned Court below has also observed that after recording of evidence if the Court is of the view that DNA test is necessary, then it will be performed at the cost of respondent. 6. Learned Court below has also observed that after recording of evidence if the Court is of the view that DNA test is necessary, then it will be performed at the cost of respondent. 6. In the matter of Ramkatwa Bat v. Bharatram II (2009) DMC 644 (SC) : VIII (2009) SLT 18 : 2010 (2) MPLJ 1, Hon'ble Apex Court has held that when a child is born from a wedlock, there is presumption in favour of legitimacy of child. 7. In the facts and circumstances of the case, the Court is of the view that only because the Respondent has denied the solemnization of marriage and also paternity of the son of the Petitioner, it was not necessary for the Petitioner to compel the Respondent for DNA test. Even otherwise the learned Trial Court has not closed the door of the Petitioner for all times to come. Application filed by the Petitioner was at the initial stage. After recording of evidence if the Petitioner is of the view the DNA test is necessary for determination of the paternity of the son then the Petitioner shall be at liberty to move an appropriate application. At that stage if such an application is filed and the Court is also of the view that in the interest of child and the mother it is necessary that Respondent be directed for DNA test, then the learned Court below shall after hearing the Respondent pass an appropriate order on the said application. It is also made clear that in case the learned Court below direct the Respondent for DNA test and the Respondent refuse, the obviously adverse inference can be drawn against the respondent. 8. With the aforesaid observations, petition stands disposed of.