The delicate and sensitive nature of using DNA tests in paternity disputes and the need for a strong prima facie case for ordering a DNA test.

Tarlok Singh Chauhan, J.

The petitioner is a minor and by medium of this petition under Article 227 of the Constitution of India has taken exception to the order passed by the learned trial Court whereby it has directed him to undergo Deoxyribonucleic Acid (DNA) test.

The facts, in brief, may be noticed.

2. The plaintiff/respondent No.1 filed a suit for declaration to the effect that defendant No.6 (petitioner herein) was neither his legitimate or illegitimate son and, therefore, his name as entered in the records of Zonal Hospital, Mandi, in labour register dated 27.07.2004 as father of the petitioner and on the basis of this entry, the entry in the birth register of M.C., Mandi vide serial No.1536 dated 31.07.2004 and further the entry to this effect in the Office of Gram Panchayat, Dushad, Sub-Tehsil Sainj, be declared illegal and wrong.

3. During the pendency of the suit, the plaintiff filed an application under Section 45 of the Indian Evidence Act readwith Section 151 of the Code of Civil Procedure with a prayer that the DNA test of the petitioner be conducted, which application stands allowed by the trial Court. The order has been assailed on the ground that in case the petitioner is compelled to undergo DNA test and the results appear to be positive i.e. the petitioner is not the son of respondent No.1, then in that event, the petitioner would be declared a “bastard” and it would be difficult for him to stay in the society.

I have heard the learned counsel for the parties and have gone through the records of the case.

4. It has to be remembered that in a matter where paternity of a child is in issue before the Court, the use of DNA test is an extremely delicate and sensitive aspect. One view is that when modern science gives the means of ascertaining the paternity of a child, there should not be any hesitation to use those means whenever the occasion requires. The other view is that the Court must be reluctant in the use of such scientific advances and tools which result in invasion of right to privacy of an individual and may not be prejudicial to the rights of the parties but may have devastating effect on the child. Sometimes, the result of such a scientific test may bastardize an innocent child even though his mother and her spouse were living together during the time of conception. Any order for DNA test can be given by the Court only if a strong prima facie case is made out for such a course.

5. In Bhabani Prasad Jena versus Convenor Secretary, Orissa State Commission for Women and another (2010) 8 SCC 633, the Hon’ble Supreme Court has held that whenever there is a conflict between the right of privacy of a person not to submit himself to medical examination and duty of the Court to reach the truth, the Court must exercise its discretion only after balancing the interest of the parties and on due consideration whether for a just decision in the matter, DNA test is eminently needed.

6. In Dipanwita Roy versus Ronobroto Roy (2015) 1 SCC 365, the Hon’ble Supreme Court was dealing with a case pertaining to the alleged infidelity of the appellant therein and the husband wanted to prove and establish the ingredients of Section 13(1)(i) of the Hindu Marriage Act, 1955, namely, that after the solemnization of the marriage of the appellant with the respondent, the appellant therein had voluntarily engaged in sexual intercourse with a person other than the respondent. The Hon’ble Supreme Court held that the prayer made by the respondent for conducting DNA test of the appellant’s son was aimed at the alleged adulterous behaviour of the appellant and, therefore, the issue of legitimacy was also incidentally involved. It was further held that depending on the facts and circumstances of each case, it will direct the holding of a DNA examination, but then it was specifically held that if the directions to hold such test can be avoided, it should be so avoided for the reasons that the legitimacy of a child should not be put t