Point of Law : Question of production of additional evidence by the plaintiff in appeal shall arise only after piece of evidence is available and for that purpose an application has been filed by the plaintiff which has been allowed by learned Additional District Judge.

ORDER :

1. Respondent herein is plaintiff in a Civil Suit No. 41-1 of 2013, filed by her in the Trial Court, seeking declaration that petitioner herein (defendant in the Civil Suit) is her biological father. For convenience, hereinafter the parties shall be referred to as ‘plaintiff’ and ‘defendant’ according to their status in the Civil Suit.

2. Plaintiff is not a child conceived and delivered out of a wedlock, but she was conceived on account of rape committed by defendant with her mother in June 2003, which was disclosed on 15.10.2003 during medical check-up of mother of plaintiff, who was minor at that time, and, resultantly, an FIR No. 82 of 2003 was registered under Section 376 of Indian Penal Code (IPC) against defendant and after conclusion of trial therein, defendant was convicted under Section 376 IPC and the conviction was upheld by the High Court by dismissing the appeal preferred by the defendant.

3. Plaintiff was born on 1.3.2004. She had also filed an application under Section 125 of the Code of Criminal Procedure (for short Cr.P.C.) through her maternal grandfather Prem Chand, against the defendant, for grant of monthly maintenance, wherein, on 27.10.2010, an application Cr. M.A. No. 18-4 of 2011 was filed by defendant for obtaining blood samples of plaintiff as well as defendant for conducting DNA Test to ascertain paternity of the plaintiff. By referring to the pronouncements of the Supreme Court in Goutan Kundu vs. State of West Bengal, (1993) 3 SCC 418 and Sharda vs. Dharmpal, (2003) 4 SCC 493, the Judicial Magistrate First Class, Ani, had dismissed the said application on 12.5.2011. The said application was opposed on behalf of plaintiff by relying upon the aforesaid pronouncements of the Supreme Court. The Magistrate had observed that direction to the parties to undergo DNA Test for determining paternity of plaintiff would amount to nothing but would have effect of branding the mother of plaintiff as an unchaste woman, which is not permissible to any Court.

4. Civil Suit filed by plaintiff has been dismissed by Civil Judge (Junior Division), Ani, on 1.11.2017, on the ground that there was no sufficient evidence to prove the case of plaintiff even to satisfy preponderance of probabilities. Against dismissal of the suit, plaintiff had preferred Appeal No. 10 of 2018, which is pending adjudication before learned District Judge, Kinnaur at Rampur Bushehr.

5. During pendency of the appeal, plaintiff filed an Application CMA No. 114-R/6 of 2018, under Sections 45 and 114 of the Indian Evidence Act, for issuing direction to the parties to undergo DNA Test. Learned Additional District Judge has allowed the application vide impugned order dated 15.10.2019, observing that the plaintiff has been able to make out a strong prima facie case to construe that DNA Test is of eminent need and plaintiff has been directed to deposit the requisite fee of analysis so that further direction in the matter may be issued.

6. Aggrieved and dissatisfied with the impugned order, defendant has preferred present petition under Article 227 of the Constitution of India.

7. It has been argued on behalf of the defendant that the plaintiff has filed to lead evidence during trial in the Civil Suit and the application has been filed by the plaintiff for filling up lacuna which is not permissible under law. It has further been contended that Courts have always desisted from directing the parties to undergo DNA Test and such direction can be issued only when there is eminent need to do so and, in present case, plaintiff was having sufficient opportunity to lead evidence to prove her case during trial, but she has failed to do so and case of the plaintiff is a case of no evidence and, therefore, there is no eminent need to subject the parties to DNA Testing. Further that the Court cannot make roving enquiry to know the paternity of the child simply at the asking of a party that too at appellate stage.

8. It has been canvassed on behalf of defendant that