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GUJARAT HIGH COURT
J.B. Pardiwala, J.
Bhavnaben Vajubhai Odedara —Applicant
versus
State of Gujarat and Ors. —Respondents
Special Criminal Application (Direction) No.9177 of 2017
Decided on 7.12.2017
Counsel for the Parties:
For the Applicant:Mr. Bhunesh C Rupera, Advocate
For the Respondents: Mr. Devnani, Addl. Public Prosecutor
IMPORTANT POINT
DNA in a matter relating to paternity of a child should not be directed by the court as a matter of course or in a routine manner, whenever such a request is made. The court has to consider diverse aspects including presumption under Section 112 of the Evidence Act; pros and cons of such order and the test.
Headnote:Evidence Act, 1872—Section 112—Criminal Procedure Code, 1973—Sections 53, 53A and 54—Writ petition for directing investigating agency to take up steps for DNA test of child, so called son of Respondents Nos. 6 and 7, for enabling court to decide that petitioner was biological mother of child—Petitioner had lodged FIR six years ago about her 20 days old son taken away from her house when she was in sleep—Petitioner claimed to have got information that child being looked after by respondents Nos. 6 and 7 was her son and DNA test could establish said fact—In a matter where paternity of a child was in issue before court, use of DNA was extremely delicate aspect and should not be directed by court as a matter of course—Court has to consider diverse aspects including presumption under section 112 of Evidence Act—Any order for DNA can be given by court only if a strong prima facie case was made out—Writ petition was only a roving inquiry and prayer for DNA test should not be granted. (Paras 18, 22 and 23)
Result: Petition dismissed.
JUDGMENT (ORAL)
J.B. Pardiwala, J.—By this writ application under Article 226 of the Constitution of India, the writ applicant has prayed for the following reliefs;
“(A) Your Lordship may be pleased to admit and allow this petition.
(B) Your Lordship may be pleased to direct the respondent Police Authority to take necessary step for DNA test of Shivam, so called son of Respondent Nos.6 and 7, and further be pleased to direct Police Authority to permit Petitioner to be present at the time of DNA test, in the interest of justice.
(C) Pending admission, hearing and final disposal of this petition, Your Lordship may be pleased to direct the respondent No.2 to take custody of minor Shivam from respondent No.6 and 7 and keep him in Child Observation Home for the safety of minor son Shivam.
(D) Your Lordship may further be pleased to pass such other and further orders as may be deemed just and fit.”
2. The case of the writ applicant, in her own words, as pleaded in this petition, is as under;
2.1 On 07.10.2011 the petitioner lodged one complaint before the Rajula Police Station, District: Amreli for the offence punishable under section 365 of the Indian Penal Code, in which, she stated that, she is residing with her husband and she had one daughter namely Janvi who is aged about 4 years, and having one minor son of only 20 days and she delivered the male baby at Mahuva D.C., Ladumor Hospital on 18.09.2011, she was residing with her brother in law (Devar- Bharatbhai) and sister in law (Devrani Gitaben). On the day of incident i.e., on 07.10.2011, at afternoon when her husband after taking meal, went to the work and at that time, she as well as her sister in law, her elder daughter and son who is aged about 20 days were sleeping and when she wake up near about 4 0’clock, she found that her minor son who is only 20 days was missing and she made also search in the nearest place and she could not found her son, therefore, she lodged the complaint before the Rajula Police Station being CR-I No.85 of 2011 under Section 365 of the Indian Penal Code against unknown person. Annexed hereto and marked as Annexure-A is the copy of the complaint being CR-I No.85 of 2011.
2.2 The petitioner respectfully submits that thereafter investigation was carried by Rajula Police Station. They have recorded the statement of the witnesses but not a single clue was found by them and the offence remained as undetected. Annexed hereto and marked as Annexure-B (Colly.) are the copies of the statement of the witness recorded by the Rajula Police Station.
2.3. The petitioner respectfully submits that in July, 2017 the petitioner got information that the respondent Nos.6 and 7 are looking after her missing child and introduces him as their child. At the relevant point of time for some period, the respondent Nos.6 and 7 were residing in the same village that is Rajula as the respondent No.6 is doing job in SBI Bank at Rajula Branch in the same house in which the petitioner was residing and at that time, they do not have any issue (Son/Daughter) after their long marriage span. Therefore, the petitioner with the help of the Rajula Police Station went to Vyara, where at present the respondent Nos.6 and 7 are residing, for seeing and meeting with her son but the respondent Nos.6 and 7 does not allow the petitioner to see the face of her son or to meet with her son. Thereafter on 09.07.2017, the police officer of the Rajula police station with the help of the Vyara Police recorded the statement of the respondent Nos.6 and 7, in which they have admitted that after number of years of their marriage, they were not having any issue and after taking treatment of IVF from Dr. Prafulbhai Babubhai Doshi, having hospital at Surat, they got one son who was born on 08.05.2010 at Me and Mummy Hospital at Surat and from the next day on 10.07.2017, the statement of Dr.Prafulbhai Babubhai Doshi who gave treatment to the respondents Nos.6 and 7 was also recorded. Annexed hereto and ma
