The main legal point established in the judgment is the necessity of proving the disputed marriage before ordering a DNA test to determine the legitimacy of a child. The court emphasized the sparing use of DNA tests and the need to consider the proportionality of legitimate aims when ordering such tests.

JUDGMENT :

Heard Mr. Rohit, learned counsel for the petitioner, Mr. Jitendra Pandey, learned counsel for the State and Mr. Vijay Kumar Roy, learned counsel for the O.P. Nos. 2 and 3.

2. This petition has been filed for quashing of the order dated 04.04.2014 passed in Maintenance Case No. 318 of 2012 whereby the learned Principal Judge, Family Court, Giridih has allowed the petition dated 05.08.2013 filed by the O.P. No. 2 for DNA test of the petitioner and O.P. No. 3 in order to allegedly prove the legality and genuineness of the birth of O.P. No. 3 from the wedlock of the petitioner and O.P. No.2, pending in the Court of learned Principal Judge, Family Court, Giridih.

3. Mr. Rohit, learned counsel for the petitioner submits that O.P. No. 2 had filed the Maintenance Case No. 318 of 2012 on 16.10.2012 under section 125 of Cr.P.C. stating therein that she is married with the petitioner on 15.04.2011 according to Hindu religious custom and out of the said wedlock she had given birth to the O.P. No.3 on 12.07.2012. He submits that the petitioner had filed his show cause in Maintenance Case No. 318 of 2012 stating therein that the petition under section 125 of Cr.P.C. filed by the O.P. No. 2 is not maintainable as the petitioner had never been married to the O.P.No. 2 on the alleged date and he also falsified the allegation that out of the alleged wedlock O.P. No. 3 had born on 12.07.2012. He submits that the O.P. No. 2 filed a petition for DNA test of the petitioner which was allowed by the impugned order. He further submits that DNA test is required to be directed to be conducted in proper case if prima facie case is made out. According to him the marriage is disputed and that is why the direction of DNA test is against the mandate of law.

4. On the other hand, Mr. Vijay Kumar Roy, learned counsel for the O.P. Nos. 2 and 3 submits that out of the wedlock of petitioner and O.P. No.2, the O.P. No. 3 has born and O.P. No. 2 is the legally wedded wife of the petitioner. He submits that in view of dispute, learned court has rightly passed the order for DNA test. To buttress his argument, he relied in the case of “Narayan Dutt Tiwari V. Rohit Shekhar & Anr.” (2012) 12 SCC 554.

5. Mr. Jitendra Pandey, learned counsel for the State supported the finding of the learned trial court and submits that this Court may not interfere with the said order.

6. In view of above submission of the learned counsel for the parties, the Court has gone through the materials on record and finds that admittedly there is dispute of marriage between the petitioner and O.P. No. 2. The marriage is in dispute that is first required to be proved by way of adducing evidence and once that is proved then one can pray before the court if the legitimacy of the O.P. No. 3 is denied for DNA test. The Hon’ble Supreme Court in several cases has held that medical evidence is not always final but medical evidence plays the role of secondary evidence.

7. The leading decision on the subject on the present case is “ Goutam Kundu V. State of West Bengal (1993) 3 SCC 418) where their Lordships of the Supreme Court held that no person can be compelled to give sample of blood for analysis against his or her will and no adverse inference can be drawn for such refusal. At paragraph 26 of the judgment, Their Lordships held as follows

“From the above discussion it emerges—

(1) that Courts in India cannot order blood test as a 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 is 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