IMPORTANT POINT
The court upheld the denial of a DNA test for paternity, emphasizing the need for a strong prima facie case and the protection of privacy rights.

JUDGMENT :

Ajoy Kumar Mukherjee, J.

1. This application under Article 227 of the Constitution of India has been directed against order no. 80 dated 28th March 2019 passed by learned Civil Judge (Senior Division), 1st Court, Chinsurah. Petitioner herein as plaintiff filed suit for partition being Title Suit No. 208 of 2008 inter alia praying for a declaration that plaintiff and defendant Smt. Puspa Rani Khan, who is the wife of the brother of plaintiff Late Dibakar Khan, has 8 anas share each in the suit property. In the said suit defendant did not contest the suit. Said suit was decreed ex-parte on 28th May 2010. Thereafter, Sri Prabir Kumar Khan, the opposite party no 2 herein, claiming himself as son of defendant Puspa Rani filed an application under Order I Rule 10 of the Code of Civil Procedure for adding him as a party and also for setting aside ex-parte decree. Plaintiff-petitioner filed written objection against the said applications, but learned Trial Court by an order dated 2nd February 2013 allowed the application for setting aside ex-parte decree and also added Sri Prabir Khan as defendant no.2 in the suit.

2. In the month of February 2013, defendant no 1 i.e. aforesaid Puspa Rani Khan filed an affidavit stating that her husband Dibakar Khan died on 6th May 2006 leaving behind their only son, the added defendant no. 2. Accordingly aforesaid added defendant no. 2, Prabir Khan filed written statement on 17th May 2013, denying the allegations made in the plaint, together with a counter claim to the effect that the deed dated 20th April 2008, executed by the mother of plaintiff in favour of plaintiff is void ab initio.

3. The plaintiff filed written statement against the counter claim filed by aforesaid Prabir and in the said written statement plaintiff contended that added defendant no.2, Prabir is not the son of defendant no. 1 Puspa Rani Kahn and her husband Dibakar Khan. Plaintiff specifically pleaded that defendant no. 2 has got no relation with Khan family and he is totally a stranger and he was not even adopted by his brother Dibakar or his wife i.e. defendant no. 1. In the said suit sister of the plaintiff filed affidavit-in-chief as PW-2, who stated that her brother Dibakar died without any issue.

4. Plaintiffpetitioner herein in the said suit filed an application under Order XXVI Rule 10 A of the Code read with Section 112 of the Indian Evidence Act denying the paternity of the added defendant and prayed for DNA test. The added defendant filed written objection to the aforesaid application along with his Voter Card, Ration Card, PAN Card etc. By the impugned order the Court below rejected the said application with a cost of Rs. 1000- to be paid to the defendant no. 2.

5. Being aggrieved by that order, Mr. Sukumar Bhattacharya, learned Counsel appearing on behalf of the petitioner submits that the Court below acted illegally in exercising its jurisdiction by rejecting the aforesaid application observing that since defendant no. 2 has filed Voter Card, Ration Card, Pan Card etc. in support of his identity as the son of deceased Dibakar Khan, the question of holding DNA test does not arise. He further submits that though the Court below has made prima facie observation regarding paternity of Prabir, while disposing application for adding him as a party and also while setting aside the order of ex-parte decree, but such finding cannot be said to be final. He further submits that the impugned order is based on perverse finding that since Dibakar died it is not possible to ascertain the paternity of defendant no. 2 by way of DNA test. In fact the Court below has misinterpreted the judgement of the Hon’ble Apex Court and he ought to have appreciated that in the modern age, when a simple medical test can resolve the issue without doubt, it is not necessary to dwell on other aspect. He ought to have considered that since the plaintiff and the sister of deceased Dibakar have clearly stated that defendant no. 1 never gave birt