The main legal point established in the judgment is the delicate and sensitive nature of DNA testing, the need for balancing the interests of the parties, and the test of 'eminent need' for DNA testing. The judgment emphasized the importance of ascertaining the truth through the best available scientific evidence and the reluctance in using scientific advances that may invade the right to privacy or have a devastating effect on the child.

JUDGMENT :

Sandeep Sharma, J.

By way of present petition filed under Art. 227 of the Constitution of India, challenge has been laid to order dated 9.8.2018, passed by learned Civil Judge (Senior Division), Court No. VII, Shimla, Himachal Pradesh in CMA No. 1262 of 2018 in Civil Suit No. 75-1 of 2016, titled Naveeta v. Bhagwan Singh, whereby an application filed by the petitioner-plaintiff (hereinafter, ‘plaintiff’) under S.151 CPC, praying therein for DNA profiling of the respondent-defendant (hereinafter, ‘defendant’), came to be dismissed.

2. For having a bird's eye view, facts in brief, as emerge from the record are that the plaintiff filed a suit for declaration in the court of learned Civil Judge (Senior Division), Shimla, to the effect that she (plaintiff) be declared legal and lawful daughter of defendant namely Bhagwan Singh, born from relationship of defendant with Smt. Sneh Prabha, mother of the plaintiff. Plaintiff also prayed that she be held entitled for other consequential reliefs which may flow after the declaration that the plaintiff is legal and lawful daughter of the defendant. In the written statement (Annexure P-2), defendant has specifically denied the claim of the plaintiff that she is his (defendant's) daughter born out of alleged relationship with Smt. Sneh Prabha. Though the pleadings in the case are complete, issues are yet to be framed, however, during the pendency of the suit, plaintiff filed an application (Annexure P-3) under S.151 CPC, praying therein for DNA profiling of the defendant. In the application, Annexure P-3, plaintiff claimed that since the defendant has not accepted her claim that she is his daughter, DNA profiling of the defendant may be ordered to arrive at a just and proper decision. However, the fact remains that the learned trial Court, vide order dated 9.8.2018, dismissed the aforesaid application preferred by the plaintiff being not maintainable at this stage. If the impugned order is read in its entirety, it reveals that the learned trial Court found no “eminent need” for DNA profiling of the defendant, especially when evidence is yet to be led on record by the plaintiff in support of her averments made in the plaint (Annexure P-1).

3. I have heard learned counsel for the parties and perused the material available on record.

4. Before adverting to the factual matrix of the case, this court deems it appropriate to take note of the legal pronouncements made by the Hon'ble Apex Court from time to time, on the issue at hand.

5. Hon'ble Apex Court in Goutam Kundu v. State of W.B., (1993) 3 SCC 418, while specifically dealing with the prayer made for DNA profiling, held that it is a rebuttable presumption of law, that a child born during the lawful wedlock is legitimate, and that access occurred between the parties. This presumption can only be displaced by a strong preponderance of evidence and not by a mere balance of probabilities. While interpreting S.112 of the Indian Evidence Act, Hon'ble Apex Court held that effect of this section is this: there is a presumption and a very strong one though a rebuttable one. Conclusive proof means as laid down under section 4 of the Evidence Act.

6. In the totality of facts and circumstances before Hon'ble Apex Court, their Lordships laid down following parameters for considering prayer, if any, for DNA profiling:—

“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