The paramount interest of the child and the cautious approach required for ordering DNA tests in paternity disputes.

JUDGMENT

Manish Pitale, J. - By this Writ Petition, the Petitioner has challenged the order dated 02.07.2020 passed by the Court of Adhoc Civil Judge, Senior Division at Mapusa, whereby an application (Exh. D-16) filed by the Petitioner for DNA test in order to determine the paternity of the child, has been rejected.

2. The Petitioner is the wife while the Respondent is the husband. The matrimonial relations between them have turned sour. There is an application filed for custody of the six year old child which is pending before the Court below. The interim custody of the child is granted to the Respondent (father of the child).

3. In the pending application for grant of custody of the child, the Petitioner moved the aforesaid application seeking DNA test of the child in order to determine the paternity. This application was opposed by the Respondent, inter alia, on the ground that the application was vague and there was no positive statement as to who was the real father of the child. It was also contended that directing such a test could be against the interest of the child.

4. By the impugned order, the Court below has rejected the application. The Court has referred to presumption under Section 112 of the Indian Evidence Act, which pertains to birth during the marriage as a conclusive proof of legitimacy. It has been noted that there are no pleadings regarding non-access for the Respondent during the subsistence of the marriage and the period during which the child was born. The interest of the child has been given paramount importance by the Court below while rejecting the application.

5. Mr. Rohit Bras De Sa, the learned Counsel for the Petitioner, has criticised the approach adopted by the Court below. It is submitted that every presumption is rebuttal and when modern scientific techniques like DNA tests are available, the Court in search of truth, ought to have granted the application filed by the Petitioner. It is submitted that the Respondent himself has made allegations that the Petitioner was living in adultery and that without prejudice the stand taken by the Petitioner as regards such allegations, since the Respondent himself sent a message to the Petitioner that a DNA test had purportedly proved that the Respondent was not the father of the child, the Petitioner was constrained to move the said application. Reliance was placed on the judgment of the Hon'ble Supreme Court in the case of Nandlal Wasudeo Badwaik vs. Lata Nandlal Badwaik & anr. (2014) 2 SCC 576.

6. On the other hand, Mr. Vivek Rodrigues, the learned Counsel appearing for the Respondent, submitted that even in the aforesaid Judgment on which the learned Counsel for the Petitioner has placed reliance, the earlier position of law laid down by the Hon'ble Supreme Court in the cases of Goutam Kundu vs. State of West Bengal, (1993) 3 SCC 418, Kamti Devi vs. Poshi Ram, (2001) 5 SCC 311, and Bhabani Prasad Jena vs. Orissa State Commission for Women, (2010) 8 SCC 633, has not been disturbed. It is submitted that in all these judgments, the Hon'ble Supreme Court had shown concern for the paramount interest of the child and laid down that the Court ought not to order DNA test for ascertaining paternity in a casual manner, because it had the possibility of detrimental effect on the future of the child, including bastardising the child. It is submitted that, in the present case, there was total absence of pleadings to indicate rebuttal of presumption under Section 112 of the Indian Evidence Act and that, therefore, the Court below was justified in rejecting the application.

7. Before considering the rival contentions raised on behalf of the parties, it would be appropriate to refer to the position of law as recognised by the Hon'ble Supreme Court in this context.

8. In the case of Bhabani Prasad Jena (supra), the Hon'ble Supreme Court has held as follows :

 "22. In our view, when there is apparent conflict between the right to privacy of a person not to submit himself fo