IMPORTANT POINT
A DNA test can be mandated in family law disputes involving paternity when there is a strong prima facie case and an eminent need for the test, particularly in the context of allegations of unchastity.

JUDGMENT/ORDER

1. The petitioner is challenging order dtd. 11/11/2021 passed by the learned Judge, Family Court No.5, Pune below Exhibit 21 in P.A. No.630 of 2019. By the impugned order, the Family Court has directed DNA test of son Shree to be carried out.

2. Facts giving rise to the filing of the application in short are as under. On 30/4/2015, marriage between the petitioner and respondent no.1 was solemnized. On 17/11/2016 male child was born. The record discloses that on 5/9/2018 respondent no.1 carried out DNA test on himself and his son. The DNA report excluded the respondent no.1 as biological father of the tested child. Based on the said test obtained from analysis of DNA loci, it was concluded that the probability of paternity is (0) zero.

3. Respondent no.1 on 14/5/2019 filed divorce petition on the ground of unchastity of petitioner thereby causing mental cruelty under Sec. 13(1)(i)(ia) of the Hindu Marriage Act, 1955. In paragraph 20 of the petition, the petitioner has challenged paternity of the child. In the petition, respondent no.1 has pleaded instances of unchastity. It is also averred in the petition that the report of DNA test conducted on 5/9/2018 discloses that the respondent no.1 is not the biological father of the son.

4. The petitioner contested the said petition by filing written statement and counter-claim. Respondent no.1 on 28/2/2020 filed his reply to the counter-claim. On 28/2/2020 respondent no.1/husband filed an application for carrying out DNA test of the child (Shree). The petitioner contested the application by filing reply.

5. Learned Family Court No.5, Pune by the impugned order allowed application below Exhibit 21 and directed that DNA test of the son to be carried out at Poona Hospital and Research Centre, Pune.

6. Being aggrieved by the said order, the petitioner has filed present writ petition.

7. It is submitted on behalf of the petitioner that the impugned order is contrary to the settled principle of law that no party can be forced to undergo DNA test. It is submitted that for considering the issue involved in this petition, DNA test is not required. In support of his submission, learned advocate for the petitioner relied on the judgments of the Apex Court in Ashok Kumar v. Raj Gupta & Ors. reported in (2022) 1 SCC 20; Goutam Kundu v. State of West Bengal & Anr. reported in (1993) 3 SCC 418; Kamtidevi (Smt) & Anr. v. Poshi Ram reported in (2001) 5 SCC 311; and unreported judgment of the Apex Court in Inayath Ali v. State of Telangana & Anr. in Special Leave Petition (Criminal) No.4946 of 2017 dtd. 15/9/2022.

8. Per contra, learned advocate for the respondents submitted that considering the issue involved and the allegation of unchastity made by the petitioner against respondent no.1, DNA test is of eminent need. Respondent no.1 had made out strong prima facie case by producing on record earlier DNA test conducted by the respondent no.1 concluding that the probability of respondent no.1 of being father of the son is (0) zero. He submitted that there is sufficient material before the Court to allow the application.

9. I have given anxious consideration to the submissions made on behalf of both the sides.

10. At this stage, it would be profitable to refer to the judgment of the Apex Court in Ashok Kumar (supra). The appellant therein had filed a suit for declaration of ownership over immovable property. The essential question before the Court was of ownership over co-parcenary property and, therefore, the Apex Court was considering the question as to whether the appellant without subjecting himself to DNA test is entitled to establish his right over the property in question through other material. In the light of the said fact, the Apex Court relying on the earlier judgments of the Apex court in Banarsi Dass vs. Teeku Dutta reported in (2005) 9 SCC 449, and Bhabani Prasad Jena v. Orissa State Commission for Women reported in 2010 (8) SCC 633 held that in the facts of the said case considering th