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2011 DIGILAW 10 (CHH)

Latel Kumar v. Biselal Kurre

2011-01-12

N.K.AGARWAL

body2011
ORDER N.K. Agarwal, J. 1. Heard on admission. 2. The Plaintiff instituted a suit claiming relief of declaration regarding his status as son of Defendant No. 1. As per plaint averment, the Plaintiff had born on 15.07.1977 out of the wedlock of Defendant No. 1 and Defendant No. 2 in village Aori, P.S. Bhilai-3, Tehsil Patan, Distt. Durg, and his date of birth were entered into the Kotwari Book. When the Plaintiff was aged about 5 months, the Defendant No. 2 left the house of Defendant No. 1 and married with Defendant No. 3 by Churi Pratha. The Plaintiff was not aware of this fact. When he became major, he came to know that he is in-fact son of Defendant No. 1 but he was brought up by Defendant No. 3 and his name was entered into the school as his son. His mother intimated him that he is son of Defendant No. 1. There is some property belonging to the Defendant No. 1 and therefore, in order to claim his share as son of Defendant No. 1 he preferred the suit. Plaintiff filed an application for DNA Test. 3. The said application was dismissed by the Civil Judge Class II, Patan, Distt. Durg vide impugned order. 4. Shri Arvind Dubey, Learned Counsel appearing for the Petitioner/ Plaintiff would contend that although the suit was filed almost after 30 years and 11 years after attaining the age of majority and although as per school leaving certificate and voter list he is son of Defendant No. 3, but in the light to documents (Ex. P/1) he is in fact son of Defendant No. 1 and in order to prove paternity DNA Test is necessary. 5. Having heard the counsel appearing for the Petitioner, having perused the order impugned and having considered the fact that the Plaintiff and his mother both have not disclosed this fact for about 30 years and even the Plaintiff did not file any suit for about 11 years after attaining the age of majority despite knowledge, I do not find any illegality or perversity in the order impugned warranting interference of this Court under Article 227 of the Constitution of India. 6. The Supreme Court in case of Goutam Kundu v. State of West Bengal and Anr. 1993 (3) SCC 418 has held in para 26 of its judgment as under: 26. 6. The Supreme Court in case of Goutam Kundu v. State of West Bengal and Anr. 1993 (3) SCC 418 has held in para 26 of its judgment as under: 26. From the above discussion it emerges 1. that courts in India cannot order blood test as a matter of course; 2. wherever applications are made for such prayers 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. 7. Further, the Supreme Court in case of Banarsi Dass v. Teeku Dutta (Mrs.) and Anr. 2005 (4) SCC 449 has held that : it is for the parties to place evidence in support of their respective claims and establish their stand. DNA test is not to be directed as a matter of routine. 8. As per Plaintiff's own case, earlier his mother was married with Defendant No. 1 and he born out of their wedlock and only thereafter customary divorce took place between them and his mother married with Defendant No. 3 by Churi Pratha, therefore, it is for the Plaintiff to prove that his birth took place before her mother's marriage with Defendant No. 3 i.e. when his mother was legally married wife of Defendant No. 1. It has nothing to do with DNA test that too in case in which the Defendant has not consented for it, and therefore, the trial court was right in refusing the prayer for DNA test. 9. It is well settled principle of law that this Court, in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India, should refrain itself from interfering with the order passed by the Court below, except in such cases where perversity, illegality, irregularity or jurisdictional error is writ large on the face of the record, which is not in the present case. 10. The petition has no merit and the same is accordingly dismissed in limine.