A F R 2 6 ‘ f i 1 ’ J‘ HI6H COURT OF CHHATTISGARH AT BILASPUR’“ WP. (222! No.2252 /2008 PETITIONER Shariq Ahmad (Nen-applicam‘) Vs RESPONDENT Sundar Lal. (Appiicam) POSTM FOR ORDERS ON 5RJune 2008 Sd/- f“ Dhirendra Mishra I u 7 ,V A .7 3 Judge §* LY'; ‘ PETITIONER (Non-applican‘r) Vs RESPONDENT (Applican’r) HIGH COURT OF CHHATTISGARH AT BILASPUR W.P. (227) No.2252 /2008 Shariq Ahmad, 5/0 Mohammad Gani, aged abouT 40 years, R/o Near Goku! Bhawan, { spa‘r Nagar, Bhiali, Tah. And Disff. burg (CG) Sundar LaL 5/0 Shariq Ahmad, aged abou‘f 5 year's, minor. Through: Mother Kirnn Boi Mahar, R/o Risa“ Bha'rha Bhilai, P/s Newai Tah. And Disf'r. Durg (CG) Presen‘i': Mr. Vipin Tiwuri, Adv. for 1'he pe'ri‘fioner. r Dhirandra Mishra, J; 1. Heard on admission. 2. The pefifioner has filed This pefi'iion under Arficie 227 of fhe Consfi‘i’u‘rion of India; agains'l' +he order da‘i’ed 1.3.2008 passed by 'l'he learned 1" Addifional Principal, Family Court burg in which The learned Family Cour‘r allowing ‘rhe applica'l’ion of fhe applican‘r/respondeni' herein has held Thai +0 decide whe'rher fhe responden'r/applican'i’ is The son of The peTiTioner/nonv applicant conducTing Deoxyribonucleic Acid TesT (for shor‘l' ‘DNA‘j is necessary. RespondenT/applicanT has been furTher direcTed To deposiT The accounT payee drafT payable To The DirecTor, CDFD, Hyderabad for Taking furTher acTion for conducTing proceeding for DNA TesT. 3. Mr. Tiwari, learned counsel for The peTiTioner vehemenTly argued ThaT DNA TesT cannoT be direcTed as a maTTer of rouTine and only in deserving cases such direcTion can be given. In The firsT round of liTigaTion beTween The same parTies The peTiTioner by Way of W.P.[c] No.1010/O7 had challenged The order daTed 12.6.2002 passed by The Family CourT, Durg by which DNA Tesf was ordered and This CourT vide order daTed 12.3.2007 (Annexure P-1) had ,parTly allowed The peTiTion wiTh an observa‘l'ion ThaT The paTerniTy can be proved from oTher evidences and also from The facT ThaT boTh The persons were having physical rela‘i'ions when Kiranbai conceived and a chiid was born during ThaT period, as a resulT of Their relaTionship. “dis is for a person who is inTeresTed in denying The facTum of physical relaTions and birTh of a child x if? ‘3 \ § x i ORDER (Passed on gg 6.2008) Pe ' @ during ‘rha‘l' period 1o rebuf ‘H'Ie aHega'l'ion of fhe mofher of fhe son. Applying The well sewed principles of law, To The fad-s of the presenf case, if appears 'I'hw 'l'he courf below has no? examined the pufemiTy on ‘rhe basis of o‘iher evidences before direc‘fing DNA fest . WiTh The aforesaid observaTions The peTiTion was remiTTed To The Family Cour'r, burg with a direci'ion 1'0 decide fhe issue on ihe basis of ofher' evidences before passing a direcfion for DNA fest . Relying upon The various judgmenTs iT was argued ThaT The learned Family Cour'r wi'ihou‘l' affording oppor'runi‘l'y of hearing 'ro fhe pe'rifioner and 'l'he respondenf and wifhouf following fhe provisions of seh‘led law has allowed fhe application for DNA fest . I have heard learned counsel for The peTiTioner. . AfTer The maTTer was remiTTed To The Family CourT, evidence of rival parTies was recorded. Kiran Bai, mo'lher of child, and her wi'inesses have deposed That fhe ‘ino‘ther of fhe child is a widow lady, she came info confacf wifh The pe‘fi‘i'ioner, developed physical rela'iionship wi‘rh him and fhe child was born 1hrough The? relationship, whereas, fhe pe‘l’i'iioner has denied fhe pa'ierni'iy of ‘i'he child. i Learned Family CourT afTer considering The evidence available on record of bo'rh The parfies has allowed 1'he applicofion of fhe respondenf for DNA Tesf wi'ih an observa‘rion 'l'ha'r considering 'l'he evidence of witnesses, DNA fesf is necessary for deciding fhe pafernii'y of The respondenT child and accordingly, direcfed The non-applicanT/respondenT herein To deposiT necessary expenses for conducTing DNA TesT. . In The maTTer of Bonarasi Doss Vs. Teeku Duffa (Mrs) and anofherl SmT. Teeku DuTTa applied for succession cerTificaTe in respecT of properTies of deceased claiming ThaT she was his daughTer and only surviving Class‘l legal heir under The Hindu Successions AcT, 1956. The objecTors dispuTed her paTerniTy and sTaTed ThaT she was noT The daughTer of The deceased and in facT, she was daughTer of Ramsharan Dos Sharma and since The deceased , and his wife were dead iT is noT possible To subjecT Them DNA TesT and 1 (2005) 4 SCC 449 , k? ‘ \ é @ campare wi‘rh DNA fesf of Teeku Duh‘a and ‘l'her-efore, 'rhe DNA fes'r of Ram Saran Dass and Teeku Duffa would condusivdy suggesf 'H'Ie pa'fernify of Teeku Dut'ra. The Hon'ble Eupreme Court referring section 112 of The Evidence ACT, 1872 heid fho? where 111a husband and wife were Hving fogefher during The Hfefime of The concep‘l’ion bu‘f fhe DNA #esf reveahd 1'haf 'rhe child was no? born 1'0 fhe husband, 'l'he conclusiveness of presump'i'ion under Secfion 112 of 'l'he Evidence Acf would remain irrebuf-rabie and considering ‘ihe facts of ihoi case rejected ihe appeal and upheld 'rhe order whereby DNA fest was refused. However, The ra‘l'iou of law laid down in 'l'he above case is no‘l' applicable in The fads of the presen‘r case. 10.In *he ma‘Her of Amrif $ingh Vs. Stan cf Punjab? fhe appellanf was prosecufed for The offence of rape and murder. During invesi‘iga'l'ion an applicafion was filed by fhe Invesfigafing Officer for ob‘l’aining The sample of hairs of 'l'he appellanf buf he refused To do so wifhouf assigning any reason and fherefore, if was confended fha'r fhe above conducf of fhe appellant could be considered as a circumstance for drawing an adverse inference against him. The Hon’ble Apex Court has held that the accused has right to give or not to give specimen of hair for purpose of identification. He cannot be made witness against himself against his will in view of Article " 20 (3) of the Constitution of India. 11. In the matter of Sunil Eknath Trambako Vs. Leelovati Sunil Trambake3 in Para 6 of the Judgment it has been held thus:— “6. Merely because either of the parties have disputed a factum of paternity does not mean that the court should direct DNA test or such other test to resolve the controversy. The partiers should be directed to lead evidence to prove or disprove the factum of paternity and only if the court finds it impossibie to draw an inference or adverse inference on the basis of such evidence on record or the controversy in issue cannot be resolved without DNA test, it may direct DNA test and not otherwise. In other words, only in exceptional and deserving cases, wheresuch 2 AIR 2007 sc 132 3 AIR 2006 oombay 14o \ -. M ’i at“ \ n 4 O a fesT becomes indispensub‘e +0 resolvé the con'h'oversy The courf can direcf such fest DNA test in any case, cqnno't be direcfed as a ma-Her of roufine. The courfs should record reasbns as +0 how and why such fes‘r in 'rhe case is necessary +0 resolva 1'he confroversy and is indispensabie. Thu? is necessary since a resul'r of such +est in ma'rrimonial and succession cases, being nega'i'ive will have an effect of branding a child as a bastard and fhe mofher as an unchasTe women as nofed in Goufam Kundu V. 51'a're of Bengal and Anr. (1993) 3 SCC 418. That may also adversely affect fhe child psychologically. The cour'I's, however, should no‘r hesifa‘l'e To direcf DNA fes'r if if is in The bes‘r interest of a child." 12. As already poin'l'ed ou‘r in 'lhe foregoing paragraphs, in 'l'he insfanf case The applica'l'ion for mainfenance was filed by responden‘r Sunder Lal, a child aged abouf 5 years, through her mo+her Kiran Bai Mahar claiming fherein 1haf he is illegi'l'ima'l‘e son of the pe‘l'i'fioner herein fhrough Kiran Bai. The pefi'rioner has denied fhe pafernify and hos pleaded ‘I'ha‘l' he is nof responsible for mainfenance of child. The Family Cour-f considering The diamefrically opposife evidence adduced by fhe respeci'ive parfies regarding pa'i’ernify of fhe, l) respondenf has reached fo 'rhe conclusion 1ha‘f fhe pafernify of 'lhe child éan be decided by DNA fesf and accordingly ordered for DNA fest i K; 13. Keeping in view fhe principles of law laid'down by Hon’ble Apex Cour'l' and also considering The inferes'l' of a child aged about 5 years whose claim for maintenance is being denied by the petitioner on the ground that he is not ; his father and the fact in issue i.e. paternity of child, can be decided by directing the petitioner and the child to face DNA testt I am of the opinion that there is no illegality or jurisdictional error committed by the Family Court which may occasion failure of justice or manifest injustice to the petitioner. If the petitioner refuses to face DNA test, in that situation ’necessary inference may be drawn by the concerned court while appreciating Sdl- - -4 Dhirendra Mishraj Judge 257612663" the evidence. 14. With the aforesaid observations, the petition is dismissedl ’