-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Writ Petition No.5385 of 2007 1. Suresh J.Talreja and others ..Petitioners vs. Master Rahul ..Respondent Shri Rajiv Patil with Shri Onkar V.Warange for petitioner. None for respondent. CORAM: S.C.DHARMADHIKARI J. CORAM: S.C.DHARMADHIKARI J. CORAM: S.C.DHARMADHIKARI J. 4th and 5th February, 2008 4th and 5th February, 2008 4th and 5th February, 2008 P.C. P.C. P.C. 1. By this petition under Article 227 of the Constitution of India, the petitioners are challenging the order passed by the learned Civil Judge, Senior Division, Kalyan on 30th March, 2007 below Exh.40 in Special Civil Suit No.178 of 2005. The application (Exh.40) was preferred by the Natural guardian of the plaintiff who is minor for a direction that petitioners/original Defendant Nos. 1 to 3 to the suit should make themselves available for collection of samples for the purpose of D.N.A. test for confirming the paternity of the plaintiff to that suit. 2. The application was preferred on 26th -2- February, 2007. The petitioner opposed that application and also pointed out that there is an order of this Court in Appeal from order and No.889 and 890 of 2004 which arose out of proceedings for interlocutory reliefs in the very suit. The original plaintiff nos. 5 and 6 had filed two applications and they were rejected by the learned Civil Judge, Sr.Dn., Kalyan on 24th July, 2004. During the course of challenge to these orders before this Court, this Court has made an observation at para 4 of its order that there is no prima facie material to show that the original plaintiff is a biological son of the deceased Jairam. This Court had perused the certificates which were produced before the Trial Court and photographs, copy of which was also shown to the learned single Judge. The learned Single Judge, therefore, agreed with the view of the Trial Court at prima facie stage that there is no documentary evidence to show that the Natural Guardian mother Mrs.Zita had gone through any marriage ceremony with deceased Jairam. It is, in these circumstances, the appeals were dismissed. 3. The Trial Court has allowed the instant -3- application for DNA Test by one para conclusion. It has held that the present suit is for partition of the properties left by deceased Jairam Talreja. The original plaintiff is claiming to be a biological son. However, the petitioner/original defendant before me denied that relationship. In such circumstances, according to the Trial Court, it would be in the interest of justice and welfare of the child to order the DNA test. 4. It is this order which is impugned in the present petition by the original Defendants. 5. Shri Patil, learned Counsel appearing for the petitioners, submits that the learned Judge has not assigned any reason as to why he has ordered DNA test. Further, the learned Judge failed to apply his mind to the aspect that the original plaintiff/natural guardian has failed to establish and prove even prima facie that she was married to the deceased or that the child on whose behalf the suit is instituted is born from this wedlock. In such circumstances, now by oblique or indirect method the Court cannot assist the original plaintiff in collecting evidence with regard to paternity. By -4- paternity, marriage would not be established straightway. In such circumstances, and when the tests laid down for ordering DNA tests are strict and rigorous, then, not adhering to the same vitiates the impugned order. 6. On the other hand the learned Counsel appearing for the original plaintiff supports the impugned order and in support of his pleas he has relied upon the decision of the Supreme Court reported in A.I.R.1993 S.C.2295 (Gautam Kunda Vs. State of W.B.and another) and a decision of the learned single Judge of this Court reported in A.I.R.2006 Bombay 140 (Sunil Eknath Trambake Vs.Leelavati Sunil Trambake) 7. After referring to the decision of the Supreme Court, this Court, speaking through the learned single Judge D.B.Bhosale J. observed as under: "5. The core question involved in this petition is whether DNA test in the facts and circumstances of the present case, is necessary. Indubitably, Deoxyribonucleic acid test, which is commonly known as DNA test, is useful to -5- determine the question of disputed paternity. Though the Court is empowered it cannot order a person to submit to such a test as a matter of routine and only in deserving cases such direction can be given. The Court is expected to exercise such discretion/power, in matrimonial cases, only when such a test is in the best interest of the child. The courts should exercise this discretion wisely. The object of the Court always is to find out the truth. It is true that no person can be compelled to give a sample of blood for analysis against his/her will. However, in the event of refusal it is open for the Court to draw an adverse inference. 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 parties should be directed to lead evidence to prove or disprove the factum of paternity and only if the Court finds it impossible to -6- 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,s only in ezxceptional and deserving cases, where such a test become indispensable to resolve the controversy the court can direct such test. DNA test, in any case, cannot be directed as a matter of routine. The courts should record reasons as to how and why such test in the case is necessary to resolve the controversy and is indispensable. That is necessary since a result of such test, in matrimonial and succession cases, being negative will have an effect of branding a child as a bastard and the mother as an unchaste women as noted in Goutam Kund Vs. State of West Bengal and another (1993) 3 SCC 418:(AIR 1993 SC 2295). That may also adversely affect the child psychologically. The courts, however, should not hesitate to direct DNA test if it is in the best interest of a child." -7- 8. A bare perusal of these observations of the learned single Judge would demonstrate that the DNA tests are not to be ordered and directed as a matter of routine or mechanically or casually. The tests are laid down in the Supreme Court decision and which have been applied and must be applied to all cases. 9. In the light of these tests, if the order under challenge is perused it would be apparent that the learned Judge has failed to adhere to the same. The only contention raised in the application is that the matter is fixed before the Trial Court for interim maintenance. During the course of arguments of both sides on this aspect the petitioners contended that the deceased and Mrs.Zita were not married and that the plaintiff Rahul is not the son of the deceased. The learned Judge was very well aware that his attention has been invited to the observations of this Court in the above Appeal from order. For these reasons and in the light of the observations of this Court that a request was made to the Trial Court to direct the petitioner to undergo DNA Test at the Recognised Investigating Laboratory at Mumbai. However, it -8- is contended before me that the Trial Judge had passed further order below Exh.59 and 60. In the light of the further order of the Trial Court, the issue in the present proceeding is academic according to the learned counsel for the respondents. According to him the petitioners have agreed to undergo the test. Further application and orders thereon would show that the petitioner never resisted such test. Therefore, in the light of further orders dated 21st July, 2007, the petition may be dismissed. My attention was also invited to the judgment of the Hon’ble Supreme Court reported in A.I.R.2003 Supreme Court 3450 (Sharda Vs.Dharmpal). My attention was also invited to the say filed by one of the petitioners Suresh Jairama Talreja to the application made by the original plaintiff for DNA test and particularly para 5 thereof. 10. In my view, the present petition cannot be said to be rendered infructuous or academic merely because in pursuance of the impugned order certain further directions are issued. This is a case where the original plaintiff approached the Court with a suit for partition and separate possession. The case of the -9- original plaintiff is that both parties are Hindus and governed by Hindu Succession Act. The case of the plaintiff is that deceased Jairam had two wives Savitri and Zita D’souza. The original defendants are son and daughter from the first wife Savitri whereas the plaintiff is a daughter from the second wife Zita. It is their case that the deceased expired on 6th December, 2001 at Ulhasnagar. He died intestate. He left behind movable and immovable properties described in the schedule to the suit. It is the plaintiff’s case that deceased had married Mrs.Zita in 1990 at the places mentioned in para 3 of the plaint according to Hindu custom and rites and that the deceased so also said Mrs.Zita were living as husband and wife. They have resided at Vikhroli, Mumbai and Kalyan after the birth of the plaintiff from the said marriage. 11. After setting out the details of the properties and ailment of the deceased, it is contended that after the death of the deceased Jairam the plaintiff’s mother Zita approached the present petitioners and sought her share in the property of the deceased. She also prayed that the plaintiff being minor son provision -10- should be made for his maintenance. That request has been denied and that is how the suit was filed praying for a declaration of the share in the property and for further reliefs. 12. It is in such proceedings that the application was filed. 13. However, the learned Judge completely lost sight of the fact that no prima facie case was made out that of the deceased and said Zita being married and the said Rahul being born from the relationship. That is a clear case as emerging from the interlocutory order as confirmed by this Court. 14. Further, the Trial Judge completely lost sight of the fact that the DNA test is sought to determine the paternity of the child. However, the deceased is not alive. The deceased having expired, the request was to invoke a comparative study. After drawing the blood sample of the plaintiff Rahul, the object appears to have a further study so that lineage and perantage can be determined by cross matching the blood group of the present petitioner. Those directions have been issued without in any manner -11- indicating as to how the same would be in the interest of the minor child. 15. In Goutam Kundu’s case the Supreme Court has laid down the tests which have to be satisfied while issuing such directions. Admittedely, there is no reference to these tests nor has the learned Judge indicated how they are satisfied in the facts of this case. In such circumstances, the order dated 30th March, 2007 passed by the 2nd Joint Civil Judge, Sr.Dn., Kalyan below Exh.40 in Special Civil Suit No.178 of 2005 cannot be sustained. It is accordingly quashed and set aside. Rule is made absolute in terms of prayer clause (B). Needless to state that all consequential orders and directions in pursuance of the impugned order shall also stand quashed and set aside. However, it is clarified that upon evidence being led in the suit if the Court below deems it fit and necessary or at that it is satisfied that any opinion from the expert would be necessary or that the test as sought for is also in the interest of the child, then, keeping in mind, the law laid down by the Hon’ble Supreme Court so also peculiar facts of this case, nothing precludes the Court from taking -12- cognisance of the request made by the original plaintiff. Keeping that option and contention of the parties open in that behalf the present petition is allowed. However, in the facts and circumstances there shall be no order as to costs. (C.S.DHARMADHIKARI J.) (C.S.DHARMADHIKARI J.) (C.S.DHARMADHIKARI J.)