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2019 Supreme(Ori) 60
IN THE HIGH COURT OF ORISSA, CUTTACK
A.K. RATH, J.
Subas Chandra Nayak — Appellant
Versus
Meena Kumari Sahoo And Others — Respondent
C.M.P. No. 1550 of 2017
Decided on : 27-03-2019
Advocate Appeared:
For the Appellant :Mr. Kabir Kumar Jena, Advocate Mr. Dinesh Kumar Patra, Advocate
The main legal point established in the judgment is that DNA testing in paternity cases should not be ordered as a routine matter and requires a strong prima facie case, considering the delicate nature of such tests and their potential impact on privacy and the well-being of the child.
Headnote:
DNA Test - Divorce Petition - Hindu Marriage Act, 1955, Section 13 - [Hindu Marriage Act, 1955, Section 13] - The court discussed the relevance of DNA testing in cases where the paternity of a child is in question, emphasizing the delicate and sensitive nature of such tests and the need for a strong prima facie case before ordering a DNA test. The court also highlighted the potential impact of DNA testing on the right to privacy and the well-being of the child. The judgment referred to the decisions in Bhabani Prasad Jena v. Convenor Secretary, Orissa State Commission for Women & anr. and Dipanwita Roy v. Ronobroto Roy to support its analysis and concluded that the petitioner did not make a strong prima facie case for conducting a DNA test, and the earlier order rejecting the petition had attained finality, making the second petition an abuse of the court process.
Fact of the Case:
The petitioner filed a divorce petition under Section 13 of the Hindu Marriage Act, 1955, alleging cruelty and adultery by the wife. The petitioner sought a DNA test of the third and fourth children of the wife, claiming that they were born out of an illicit relationship with another man.
Finding of the Court:
The court found that the petitioner did not establish a strong prima facie case for conducting a DNA test and that the earlier order rejecting the petition had attained finality, making the second petition an abuse of the court process.
Issues: The main issue was whether the court should allow the petitioner's application for a DNA test of the children of the wife, considering the allegations of adultery and the delicate nature of DNA testing in paternity cases.
Ratio Decidendi: The court held that DNA testing in paternity cases should not be ordered as a matter of course and emphasized the need for a strong prima facie case before directing such tests. The court also considered the potential impact on the right to privacy and the well-being of the child.
Final Decision: The petition was dismissed, and no costs were awarded.
JUDGMENT :
A.K. Rath, J.
This petition challenges the order dated 25.11.2017, passed by the learned Judge, Family Court, Jajpur in C.P. No.476 of 2011, whereby and whereunder, learned trial court has rejected the application of the plaintiff-petitioner to conduct the DNA test of the third and fourth children of the opposite party no.1-wife.
2. Plaintiff-petitioner filed a petition u/s.13 of the Hindu Marriage Act, 1955, for divorce against the defendant no.1- opposite party no.1-wife on the ground of cruelty and adultery. The opposite party no.1 entered contest and filed a written statement denying the assertions made in the petition. While matter stood thus, petitioner filed an application u/s.151 CPC to conduct the DNA test of the third and fourth children of opposite party no.1. It is stated that opposite party no.1 left the matrimonial home after the second child was born. She did not return to the matrimonial house. She developed illicit relationship with opposite party no.2. The third and fourth children are born out of the said illicit relationship. Opposite party no.1 filed objection denying the assertions made in the petition. It is stated that the petitioner used to visit her house. Out of their wed-lock, the third and fourth children are born. The petition was rejected on 20.08.2003. The order has attained finality. After lapse of 14 years, the petitioner filed another petition seeking the same relief. Learned trial court rejected the same.
3. Heard Mr. Kabir Kumar Jena, learned counsel for the petitioner and Mr. Dinesh Kumar Patra, learned counsel for the opposite party no.1
4. Mr. Jena, learned counsel for the petitioner submits that opposite party no.1 left the matrimonial home long since. She had developed illicit relationship with opposite party no.2. Thereafter, third and fourth children are born. The petitioner filed an application to conduct DNA test of the third and fourth children. The same is essential for just decision of the case. Learned trial court is not justified in rejecting the application.
5. Conversely, Mr. Patra, learned counsel for the opposite party no.1-wife submits that the allegations made in the petition are blatant lies. The petitioner used to visit the house of opposite party no.1.Out of their wedlock, the third and fourth children are born. He further submits that earlier order of rejection has attained finality. DNA test cannot be conducted as a matter of right. To buttress the submission, he places reliance on the decision of this Court in the case of Ranjan Kumar Behera @ Naik Vrs. Domburudhar Behera & Ors., 2017 (I) ILR -CUT-342.
6. In Bhabani Prasad Jena Vrs. Convenor Secretary, Orissa State Commission for Women & anr., AIR 2010 SC 2851, the apex Court held :
"13. In a matter where paternity of a child is in issue before the court, the use of DNA is an extremely delicate and sensitive aspect. One view is that when modern science gives 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 use of such scientific advances and tools which result in invasion of right to privacy of an individual and may not only be prejudicial to the rights of the parties but may have devastating effect on the child. Sometimes the result of such scientific test may bastardise an innocent child even though his mother and her spouse were living together during the time of conception. In our view, when there is apparent conflict between the right to privacy of a person not to submit himself forcibly to medical examination and duty of the court to reach the truth, the court must exercise its discretion only after balancing the interests of the parties and on due consideration whether for a just decision in the matter, DNA is eminently needed. DNA in a matter relating to paternity of a child should not be directed by the court as a matter of course or in a routine manner, whenever suc
