DNA tests in civil suits should only be ordered in exceptional cases, emphasizing the presumption of legitimacy and the need for clear evidence of paternity disputes.

JUDGMENT :

Suvir Sehgal, J.

Petitioners have approached this Court assailing order dated 25.09.2024, Annexure P-5, whereby an application for conducting DNA test of respondent No.1/plaintiff, has been rejected.

2. Counsel for the petitioners states that there is a property dispute between the parties and respondent No.1/plaintiff has filed a suit for declaration to the effect that he is a joint owner in the agricultural land left behind by Narinder Singh, deceased, on the basis of inheritance. He submits that the paternity of respondent No.1 has been disputed by the petitioner in the written statement. In order to ascertain the truth, counsel asserts that an application, Annexure P-3, was filed for conducting the DNA profiling of respondent No.1/plaintiff and comparing it with that of his biological parents as well as of petitioner No.1, which has been erroneously rejected by the Trial Court. He has placed reliance upon the judgments of this Court in

(i) Smt. Raj Gupta and another Vs. Ashok Kumar and others , 2019(2) Law Herald (P&H) 1551

(ii) Bibly Monica Vs. Vir Vikram Kumar @ Jason Victor Steele and another , 2020 (2) PLR 130;

(iii) Neelam Rani and others Vs. Smt. Mainka @ Maina Devi and another , 2014 (2) RCR (Civil) 560; and

(iv) Sube Singh Vs. Smt. Shanti Devi and others , 2015 (5) RCR (Civil) 684.

3. Despite service, there is no appearance on behalf of respondent No.1.

4. I have heard counsel for the petitioners and considered his submission besides examining the paper-book.

5. The question that arises for consideration is as to whether in a declaratory suit, where the plaintiff is claiming ownership of property on the basis of inheritance, he can be subjected to a DNA test against his wishes.

6. The answer to this question is in the negative. In Banarsi Dass Vs. Teeku Dutta (Mrs.) and another , (2005) 4 SCC 449 , Supreme Court has held that DNA test is not to be directed as a matter of routine but only in deserving cases. Due regard has to be given to Section 112 of the Indian EVIDENCE ACT , which is based on the well known maxim pater est quem nuptiae demonstrant (he is the father whom the marriage indicates). The presumption of legitimacy that a child born of a married women is deemed to be legitimate and the burden of proving illegitimacy is on the person who is interested in establishing otherwise. It has been observed that Courts in India cannot order blood test as a matter of routine and such prayer cannot be granted to conduct a roving inquiry. There must be a strong prima facie case and the court must carefully examine as to what would be the consequence of ordering of blood test.

7. Summing up the case law, in Aparna Ajinkya Firodia Vs. Ajinkya Arun Firodia , (2024) 7 SCC 773 , Supreme Court culled out the circumstances under which a DNA test of a minor child may be directed to be conducted and held that merely because one of the parties have disputed the factum of paternity, it does not mean that Court should direct DNA test or such other test to resolve the controversy. The parties must be directed to lead evidence to prove or disprove the factum of paternity and only if the Court finds that it impossible to draw an influence based on such evidence, or the controversy in issue cannot be resolved without DNA test, it may direct such a test and not otherwise. In other words, Supreme Court clarified that it is only in exceptional and deserving cases, where such a test becomes indispensable to resolve the controversy the Court can direct such a test.

8. In the present case, respondent No.1/plaintiff has filed a suit for declaration to the effect that he is the joint owner in possession of 1/6th share of agricultural land measuring 18 kanals 2 marlas situated in the revenue estate of vill