The main legal point established in the judgment is that DNA tests to prove paternity should only be directed in exceptional and deserving cases, with a strong prima facie case to establish non-access and considering the potential adverse effects on the child and mother.

Rajiv Sharma, J.

1. The petitioner has challenged the order dated 19.11.2015 rendered in application No. 220/4 of 2015 by the learned Judicial Magistrate 1st Class, Kandaghat, District Solan, H.P. in Case No. 20/3 of 2014.

2. “Key facts” necessary for the adjudication of this petition are that the petitioner has filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005. The respondent has filed the reply to the same. The petitioner has also filed an application under Section 45 of the Indian Evidence Act, 1872, praying that the respondent may be directed to undergo Deoxyribonucleic Acid Test (hereinafter referred to as “DNA test”) to prove the paternity of master Harsh. The reply was filed by the respondent. The learned trial Court dismissed the application filed under Section 45 of the Indian Evidence Act, 1872 on 19.11.2015. Hence, this petition.

3. I have heard the learned counsel appearing on both the sides and have also gone through the records of the case minutely.

4. The marriage between the parties was solemnized in the year 2010. The child was 2 years of age at the time of filing an application on 22.6.2015. The petition under Section 12 of the Protection of Women from Domestic Violence Act, 2005 was filed on 25.4.2014. An application under Section 45 of the Indian Evidence Act has been filed on 22.6.2015.

5. The parties cannot be ordered to undergo DNA test in a mechanical manner. The direction can be issued only in deserving cases. The learned trial Court has come to the right conclusion that the parties may lead evidence to prove or disprove the factum of paternity and only if the Court finds it impossible to draw an inference or adverse inference on the basis of such evidence on record or the controversy in issue cannot be resolved without DNA test, it may direct DNA test and not otherwise.

6. Their lordships of the Hon’ble Supreme Court in the case of Goutam Kundu vs. State of West Bengal and another, reported in AIR 1993 SC 2295, have laid down the following principles as to permissibility of blood test to prove paternity:

“26. From the above discussion it emerges:-

(1) That courts in India cannot order blood test as matter of course;

(2) Wherever applications are made for such prayers in order to have roving inquiry, the prayer for blood test cannot be entertained.

(3) There must be a strong prima facie case in that the husband must establish non-access in order to dispel the presumption arising under section 112 of the Evidence Act.

(4) The court must carefully examine as to what would be the consequence of ordering the blood test; whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman.

(5) No one can be compelled to give sample of blood for analysis.”

7. Their lordships of the Hon’ble Supreme Court in the case of Sharda vs. Dharampal, reported in (2003) 4 SCC 493, have held that the Hindu Marriage Act or any other law governing the field does not contain any express provision empowering the Court to issue a direction upon a party to a matrimonial proceedings to compel him to submit himself to a medical examination. However, that does not preclude a court from passing such an order. It has been held as under:

“16. The Hindu Marriage Act or any other law governing the field do not contain any express provision empowering the Court to issue a direction upon a party to a matrimonial proceedings to compel him to submit himself to a medical examination. However, in our opinion, this does not preclude a court from passing such an order. We may, however, notice that such provisions have expressly been inserted in England by way of Sections 22 and 23 of the Family Law Reform Act, 1987 on the recommendations of the Law Commission. Sections 23 is to the following terms:

"23. Provisions as to scientific tests (1) For Sub-sections (1) and (2) of Section 20 of the Family Law Reform Act, 1969 (power of court to require use of blood tests) there