C.R. No.3641 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No.3641 of 2009 (O&M) Date of Decision: 26.10.2010 Rajbir Kaur ……Petitioner VERSUS Sukhwinder Singh ……Respondent CORAM: HON'BLE MR. JUSTICE ALOK SINGH -.- Present: Mr. H.N.S. Gill, Advocate for the petitioner. Mr. P.S. Grewal, Advocate for the respondent. 1. Whether Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporters or not? Yes 3. Whether the judgment should be reported in the Digest? Yes ALOK SINGH, J. (ORAL) 1. Present petition is filed challenging the order dated 7.10.2008, 10.10.2008 and 24.4.2009, whereby DNA Test was di- rected to be done on Sukhwinder Singh-respondent-husband as well as on Manjinder Singh to find out the paternity of Manjinder Singh, son of parties. 2. The sole question involved in this case is as to whether DNA Test can be directed to be done on the minor to find out the pa- ternity to prove the adultery on the part of the wife. The Hon’ble C.R. No.3641 of 2009 (O&M) -2- Apex Court in the matter of Kanti Devi and another v. Poshi Ram reported in 2001 (5) S.C.C. 311 in paragraph No.1 has observed as under:- “11. We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancements with Dioxy Nucleic Acid (DNA) as well as Ri- bonucleic Acid (RNA) tests were not even in contemplation of the legislature. The result of a genuine DNA test is said to be scientifically accurate. But even that is not enough to escape from the conclusive- ness of Section 112 of the Act, e.g. if a hus- band and wife were living together during the time of conception but the DNA test revealed that the child was not born to the husband, the conclusiveness in law would remain unre- buttable. This may look hard from the point of view of the husband who would be com- pelled to bear the fatherhood of a child of which he may be innocent. But even in such a case the law leans in favour of the innocent child from being bastardized if his mother and her spouse were living together during the time of conception. Hence the question regarding the degree of proof of non-access for rebutting the conclusiveness must be an- swered in the light of what is meant by ac- cess or non-access as delineated above.” C.R. No.3641 of 2009 (O&M) -3- 3. Learned Single Judge of this Court in the matter of Kul- deep Singh v. Joginder Kaur and another reported in 2006 (4) R.C.R. (Civil) 572 in paragraph No.4 has observed as under:- “4. There is no merit in the submission. The order granting maintenance was passed on 9.11.1993. The event which took place prior to the said date cannot be put in issue in sub- sequent proceedings and that too after eight years. Under Section 112 of the Evidence Act, 1872, birth during marriage is conclusive proof of the legitimacy of the child. In Dwarka Prasad Satpathay v. Bidyut Prava Dixit, (1999) 7 SCC 675 and Smt. Kamti Devi v. Poshi Ram, AIR 2001 SC 2226, it was held that the Court has to keep in view the provisions of Section 112 of the Evidence Act and it is only the party who disputes the legitimacy of the child, has to undergo the DNA test and not the mother of the child who is not disputing the legitimacy of the child un- less a clear prima facie case is made out. As held in Sharda v. Dharmpal, 2003(2) RCR (Civil) 795 (SC) and Goutam Kundu v. State of West Bengal and another, 1993(2) RCR (Crl.) 497 (SC); (1993) 3 SCC 418, in a given case, a direction for an appropriate test could be issued but such a direction could not be is- sued mechanically on a mere allegation of il- legitimacy of child. Such a direction ought to be issued if it was in the interest of child. It C.R. No.3641 of 2009 (O&M) -4- was also observed in Sharda (supra) that power to direct a medical test should be is- sued only if a prima facie case was independ- ently made out.” 4. This Court is of the view that DNA test can be ordered if it is for the benefit/welfare of the child but DNA test should not ordinar- ily be ordered in matrimonial dispute between the husband and wife to prove the ground of adultery against the wife. As per Section 112 of the Evidence Act, if birth of the child took place during the continu- ance of marriage, then it is the conclusive proof of legitimacy of the child. Law does not allow taking test on the minor to prove that child is the bastard. 5. In view of the above, impugned orders cannot be sus- tained in the eye of law. Petition is allowed. Impugned orders are quashed. ( ALOK SINGH ) 26th October, 2010 JUDGE ashish