The main legal point established in the judgment is that in a paternity dispute, the court has the authority to order DNA testing if there is a strong prima facie case, and refusal to undergo such testing may lead to adverse presumptions.

JUDGMENT

Sudip Ahluwalia, J. - This Revisional Application is directed against the Order dated 13.04.2018 passed by the Ld. Civil Judge (Senior Divison), Jagadhri whereby the application moved by the Respondent No.1/Plaintiff to undergo DNA Test had been allowed.

2. Vide the impugned Order, the Ld. Court below had allowed the Application filed on behalf of Respondent No.1/Plaintiff in the original Suit directing the Petitioner to undergo DNA Testing to determine the Paternity of said Respondent, who in the Suit had claimed to be his biological son and had therefore, sought a Decree for declaration to that effect apart from a Permanent Injunction to restrain him from denying in public or otherwise that he is father of Plaintiff.

3. The Petitioner is aggrieved with the impugned Order and it has been contended from his side that he could not have been directed to undergo the DNA Testing, which should not have been ordered by the Ld. Court below for conducting a roving enquiry. A number of decisions on the point have been cited to support the Petitioner's contention, which are taken up for consideration in the following Paragraphs -

4. In Rohit Shekhar Vs. Shri Narayan Dutt Tiwari and another, (2011) 1 RCR(Criminal) 289 in allowing a similar application for DNA Testing against the Defendant, it was held by the Delhi High Court inter alia -

"35. The Court would now examine if a third party (to a marriage, like the first defendant here) may be compelled to undergo scientific tests of the nature of giving blood samples for the purpose of DNA testing. The case of Goutam Kundu (supra) provides us with assistance here. In this case, the Court held that

"1. A matrimonial court has the power to order a person to undergo medical test.

2. Passing of such an order by the court would not be in violation of the right to personal liberty under Article 21 of the Indian Constitution.

3. However, the Court should exercise such a power if the applicant has a strong prima facie case and there is sufficient material before the Court. If despite the order of the court, the respondent refuses to submit himself to medical examination, the court will be entitled to draw an adverse inference against him."

37. ....The three Judge Bench in Sharda (supra) stated in no uncertain terms that a direction, (after taking into consideration all relevant facts), to the person, to undergo such a test is not an invasion of his right to life. Bhabani Prasad Jena (supra), after noticing all the previous judgments, including Goutam Kundu and Sharda, on the point, affirmed the power of the Court to direct a DNA test by one of the parties, and stated that it must be exercised with caution, after weighing all "pros and cons", the evidence, and satisfying itself if the "test of 'eminent need'" for such an order, is fulfilled. This Court is therefore, bound by those principles.

38. ....To be fair to the first defendant, there can be explanations; yet prima facie there appears to be some consistency or pattern in his behavior; he is definitely seen as a close friend of the family, with a special fondness for the plaintiff. The plaintiff alleges that the defendant used to see him very frequently, and he had access, but later he was denied such access, to the first defendant and that the last time he could meet the plaintiff was in 2005.

42. ....No doubt, there are possibilities that the first defendant is not the biological father; the Court cannot direct him to undergo DNA test on the assumption that he is the father, at the mere asking of the plaintiff. That is where, the other materials, such as the second defendant mother?s affidavit, and photographs of the plaintiff, together with the first defendant, are relevant. They do, taken cumulatively with such the DNA test results, indicate a strong prima facie case, suggesting "eminent need" to issue the directions.

44.The previous discussion may be summarized as follows :

(i) ..............

(ii) A "paternity" action by the son or