Research › Search › Judgment

Himachal Pradesh High Court · body

2014 DIGILAW 442 (HP)

Bhupender Singh v. Dev Raj

2014-04-23

SANJAY KAROL

body2014
Judgment : Sanjay Karol, J (oral) According to Bhupender Singh, plaintiff (petitioner herein) his mother Ram Pyari was committed to forceful sexual intercourse by Dev Raj (respondent herein), resulting into conception and his birth. Thereafter his mother got married to Ram Pal after a period of two years. Petitioner now has filed a suit, seeking declaration that he is born through the loins of Dev Raj. 2. Relying on the decision rendered by the Apex Court in Goutam Kundu Versus State of West Bengal and another, (1993) 3 SCC 418 , petitioner’s application filed under Section 45 of the Indian Evidence Act, 1872, stands rejected by the trial Court. 3. Having heard learned counsel for the parties as also perused the record, so made available, I am of the considered view that impugned order dated 25.07.2013, passed by Civil Judge (Senior Division), Kinnaur District at Recokong Peo, H.P., titled as Sh. Bhupinder Singh Versus Dev Raj and another, needs to be quashed and set aside. 4. The issue raised herein is no longer res integra. The decision in Goutam Kundu (supra) came up for consideration before the Apex Court in Sharda Versus Dharmpal, (2003) 4 SCC 493 , wherein following observations were made:- “39. Goutam Kundu [ (1993) 3 SCC 418 )] 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.” “76. 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 a spouse against the other spouse seeking divorce on such a ground, is correct or not. In order to substantiate such allegation, the petitioner would always insist on medical examination. normally without there being medical examination, it would be difficult to arrive at a conclusion as to whether the allegation made by a spouse against the other spouse 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 the respondent avoids such medical examination on the ground that it violates his/her right to privacy or for that 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 phrase “personal liberty” this right has been read into Article 21, it cannot be treated as an absolute right. What is emphasized is that some limitations on this right have to be imposed and particularly where two competing interests clash. In matters of the 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 interests involved. 77. If for arriving at the satisfaction of the court and to protect the right of a party to the lis who may otherwise be found to be incapable of protecting his own interest, the court passes an appropriate order, the question of such action being violative of Article 21 of the Constitution of India would not arise. The court having regard to Article 21 of the Constitution of India must also see to it that the right of a person to defend himself must be adequately protected. 78. It is, however, axiomatic that a court shall not order a roving inquiry. It must have sufficient materials before it to enable it to exercise its discretion. Exercise of such discretion would be subjected to the supervisory jurisdiction of the High Court in terms of Section 115 of the Code of Civil Procedure and/or Article 227 of the Constitution of India. Abuse of the discretionary power at the hands of a court is not expected. Exercise of such discretion would be subjected to the supervisory jurisdiction of the High Court in terms of Section 115 of the Code of Civil Procedure and/or Article 227 of the Constitution of India. Abuse of the discretionary power at the hands of a court is not expected. The court must arrive at a finding that the applicant has established a strong prima facie case before passing such an order. 79. If despite an order passed by the court, a person refuses to submit himself to such medical examination, a strong case for drawing an adverse inference would be made out. Section 114 of the Indian Evidence Act also enables a court to draw an adverse inference if the party does not produce the relevant evidences in his power and possession. 80. So viewed, the implicit power of a court to direct medical examination of a party to a matrimonial litigation in a case of this nature cannot be held to be violative of one’s right of privacy.” 5. In somewhat similar circumstances, a Coordinate Bench of this Court in CMPMO No.24 of 2012, titled as Shri Rajiv Kumar Versus Shri Lachhi Ram, decided on 05.07.2012, held as under:- “The principle of law is no longer res-integra. Controversy stands settled by the decision of Division Bench of Delhi High Court in FAO (OS) No. 547 of 2011, title Rohit Shekhar versus Narayan Dutt Tiwari & Anr, dated 27th April, 2012. The petition is allowed. Order of the learned Civil Judge (Junior Division), Rampur Bushahr is quashed and set aside. A direction is issued that DNA test of Lachhi Ram be conducted. In case of his unwillingness to undergo this test adequate police help be provided to the petitioner herein for this purpose of obtaining blood sample etc. for DNA testing.” 6. In my considered view, trial Court has not correctly appreciated the law laid down by the Apex Court even in Goutam Kundu’s case (supra). In the instant case, it is the son who is coming forward, claiming himself to have legitimately born through the respondents. Prejudice, if any, would have been caused to the petitioner much less to the respondents. As such, present petition is allowed and impugned order dated 25.07.2013 (Annexure P-6) is quashed and set aside. Petitioner’s application filed under Section 45 of the Indian Evidence Act, 1872, is allowed. 7. Prejudice, if any, would have been caused to the petitioner much less to the respondents. As such, present petition is allowed and impugned order dated 25.07.2013 (Annexure P-6) is quashed and set aside. Petitioner’s application filed under Section 45 of the Indian Evidence Act, 1872, is allowed. 7. It is ordered that respondent Sh.Dev Raj shall submit his blood samples for DNA test, which shall be conducted through recognized Forensic Science Laboratory. Trial Court shall pass necessary orders in that regard. 8. Parties are directed to appear before the trial Court on 20.05.2014.