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2019 Supreme(Guj) 600
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
A.P. THAKER, J.
Amrtulal Amthabhai Mistri - Appellant
Versus
Ashwinkumar Amrutlal Mistri - Respondent
R/Appeal from Order No. 71 of 2019 and Civil Application No. 1 of 2019 in R/Appeal from Order No. 71 of 2019
Decided On : 24-10-2019
For the Appellant : Abhisst K. Thaker
For the Respondent: Bharatkumar K. Vizoda, Amritlal N. Vinzoda and Nikhilesh J. Shah
Headnote:
Indian Evidence Act – Section 114 – Article 226 – Constitution of India –Respondent 1 instituted Family Suit alleging that appellant, who is defendant 1 in suit is biological father of plaintiff, who born from relationship of defendant 1 and defendant 2 It is also alleged that defendant 2 got married who died and who happens to first husband of mother of plaintiff, it is also alleged that after death of, first husband of defendant 2 she got married defendant 1, as per Hindu rituals and thereafter they living as husband and wife openly in society, also alleged that out of said wedlock gave birth to present plaintiff also alleged that plaintiff living happily with his mother and father and defendant 1 also visiting Foundation, where other members of family residing contended that defendant 1 being natural father of plaintiff, he represented as son of defendant 1 in school where he studying and also applied for certificate of Socially and Economically Backward Class he also shown as family member in ration card, also alleged that defendant 1 all throughout accepted plaintiff as son in all documents, wherein name of defendant 1 mentioned as father of plaintiff, also alleged present defendant 1 also accepted, sister of present plaintiff as his daughter, who happens to be daughter of earlier husband of Smt.also alleged that defendant 1 also attended various ceremonies of relatives of plaintiff alleged that suddenly defendant 1 refused to enter name of present plaintiff as member of his family in family directory of Dotor Community, as also refused to recognize present plaintiff as son, due to that he has filed present suit –Held, if DNA report does not prove defendant 1 to father of plaintiff, and in case if report comes positive, proving defendant 1 to father of plaintiff, amount may be refunded to plaintiff-respondent DNA test is to be carried out only after deposit of Rs. 1 Lac by plaintiff, as ordered by trial Court, DNA report is to be submitted to trial Court in sealed cover, appellant declines to comply with direction issued by trial Court, allegation would determined by concerned trial Court, by drawing presumption of nature contemplated in Section 114 of the Indian Evidence Act, especially in terms of illustration thereof – Appeal is disposed of. (Para 12, 13, 14)
Facts of the case:
Respondent 1 instituted Family Suit alleging that appellant, who is defendant 1 in suit is biological father of plaintiff, who born from relationship of defendant 1 and defendant 2 It is also alleged that defendant 2 got married who died and who happens to first husband of mother of plaintiff, it is also alleged that after death of, first husband of defendant 2 she got married defendant 1, as per Hindu rituals and thereafter they living as husband and wife openly in society, also alleged that out of said wedlock gave birth to present plaintiff also alleged that plaintiff living happily with his mother and father and defendant 1 also visiting Foundation, where other members of family residing contended that defendant 1 being natural father of plaintiff, he represented as son of defendant 1 in school where he studying and also applied for certificate of Socially and Economically Backward Class he also shown as family member in ration card, also alleged that defendant 1 all throughout accepted plaintiff as son in all documents, wherein name of defendant 1 mentioned as father of plaintiff, also alleged present defendant 1 also accepted, sister of present plaintiff as his daughter, who happens to be daughter of earlier husband of Smt.also alleged that defendant 1 also attended various ceremonies of relatives of plaintiff alleged that suddenly defendant 1 refused to enter name of present plaintiff as member of his family in family directory of Dotor Community, as also refused to recognize present plaintiff as son, due to that he has filed present suit
Findings of the court:
If DNA report does not prove defendant 1 to father of plaintiff, and in case if report comes positive, proving defendant 1 to father of plaintiff, amount may be refunded to plaintiff-respondent DNA test is to be carried out only after deposit of Rs. 1 Lac by plaintiff, as ordered by trial Court, DNA report is to be submitted to trial Court in sealed cover, appellant declines to comply with direction issued by trial Court, allegation would determined by concerned trial Court, by drawing presumption of nature contemplated in Section 114 of the Indian Evidence Act, especially in terms of illustration thereof
Result: Appeal is disposed of.
JUDGMENT :
A.P. Thaker, J.
1. Being aggrieved and dissatisfied with order dated 6.3.2019 passed by learned Family Court at Ahmedabad in the Family Suit No. 1918 of 2016, whereby the appellant is directed to undergo DNA test, the appellant has preferred present appeal.
2. The brief facts of the case are that the plaintiff i.e. respondent no. 1 has instituted Family Suit No. 1918 of 2016 alleging that the appellant herein, who is defendant no. 1 in the suit is biological father of plaintiff, who has born from the relationship of defendant no. 1 and defendant no. 2. It is also alleged that defendant no. 2 Manjulaben got married with one Shri Bhimjibhai, who has died on 7.5.1979 and who happens to be the first husband of Manjulaben, mother of the plaintiff. It is also alleged that after the death of Bhimjibhai, first husband of defendant no. 2-Manjulaben, she got married with Amrutlal, defendant no. 1, as per the Hindu rituals at Mahakali Temple, Dudheshwar, Ahmedabad, and thereafter they were living as husband and wife openly in the society. It is also alleged that out of said wedlock with Amrutlal, Manjulaben gave birth to present plaintiff on 23.5.1981. It is also alleged that the plaintiff was living happily with his mother and father and defendant no. 1 was also visiting Sujan Bungalows at Shreyas Foundation, Ambawadi, Ahmedabad, where other members of the family were residing. It is also contended that defendant no. 1 being natural father of the plaintiff, he was represented as son of defendant no. 1 in the school where he was studying and also applied for certificate of Socially and Economically Backward Class. He was also shown as family member in the ration card. It is also alleged that defendant no. 1 all throughout accepted the plaintiff as son in all the documents, wherein name of defendant no. 1 has been mentioned as the father of the plaintiff. It is also alleged that present defendant no. 1 has also accepted Gitaben, sister of present plaintiff as his daughter, who happens to be daughter of earlier husband of Smt. Manjulaben. It is also alleged that defendant no. 1 also attended various ceremonies of relatives of the plaintiff. It is alleged that suddenly defendant no. 1 has refused to enter the name of present plaintiff as a member of his family in family directory of Mevada Dotor Community, as also refused to recognize present plaintiff as son, due to that he has filed present suit.
2.1. According to the plaintiff, DNA test is essential for confirmation of status of defendant no. 1 as the father of the plaintiff, which will give him right to live life with dignity and free from stigma. Contending all these facts, the plaintiff has sought for interim relief directing defendant no. 1 to undergo DNA test. It is also contended that earlier he has filed petition under Article 226 of the Constitution of India being Special Civil Application No. 8774 of 2014, wherein this Court has asked the plaintiff to approach trial Court and, therefore, he has withdrawn the same. Thereafter, he has filed the suit with an application for DNA test of defendant no. 1.
2.2. It appears that, after hearing both the sides, learned Judge of the Family Court has passed the order directing defendant no. 1 to undergo DNA test as prayed for by the plaintiff.
3. Being aggrieved and dissatisfied with above order, defendant no. 1 has filed this appeal, inter alia, contending that the plaintiff has not produced any prima facie proof that he is son of the appellant-defendant no. 1. It is also contended that defendant no. 2 is having three siblings and only the plaintiff has filed the suit. It is also contended that plaintiff's mother was duly married with Shri Bhimjibhai. It is also contended that no one can be compelled to give sample of blood for analysis. It is also contended that same prayer has been asked for in the suit itself and if the prayer in the nature of interim relief is granted then it will amount to passing the decree at interim stage. It i
