The court emphasized balancing the child's right to ascertain paternity with the father's right to privacy while ordering DNA testing under Section 112.

JUDGMENT :

ARCHANA PURI, J.

1. Challenge in the present revision petition is to the order dated 27.11.2015 passed by learned trial Court, thereby, allowing an application filed by the respondent No.1-plaintiff and ordered conducting of DNA test of the petitioner-defendant No.1.

2. For the convenience of discussion, the parties are referred to as making appearance before learned trial Court.

3. The facts germane to be noticed, are as follows:-

That, plaintiff Sahil Garg had filed a suit for declaration, thereby, asserting himself to be son of defendant No.1-Anil Kumar Garg and defendant No.2-Smt.Anita. Therein, he averred that he had filed a petition under Section 125 Cr.P.C., through his mother i.e. defendant No.2, being minor at that time and in the written statement/reply filed to the same, defendant No.1 denied the parentage of the plaintiff and stated therein that plaintiff is not the biological son of defendant No.1. Also, it was averred in the plaint that defendant No.1 came into contact with defendant No.2 i.e. mother of the plaintiff Smt.Anita, in the year 1988, as he took the accommodation in the house of defendant No.2 as tenant. With the passage of time, relations developed between defendant No.1 and defendant No.2 and accordingly, they started living as husband and wife and from their wedlock, the plaintiff was born in the year 1990.

4. Also, it was averred that the plaintiff lived along with defendants No.1 and 2, till the year 2000 and in the year 2000, defendant No.1 had left the house and since then, the plaintiff is living with his mother. The plaintiff is well aware that defendant No.1 was living with defendant No.2, as husband and plaintiff used to address defendants No.1 and 2, as ‘Papa’ and ‘Mummy’. He was 10 years old, at the relevant time. He also further asserted that father’s name in the school record was got mentioned as R.C.Bhola, i.e. earlier husband of defendant No.2, by defendant No.1 in clandestine manner. The plaintiff is real son of defendant No.1, as mother of the plaintiff conceived pregnancy from the loins of defendant No.1, but defendant No.1 is running from his liability/duty and on this account, plaintiff sought declaration.

5. Upon notice, both the defendants i.e. Anil Kumar Garg and Anita had made appearance and filed their respective written statements. Defendant No.1-Anil Kumar Garg, in the written statement, asserted about the claim of date of birth of the plaintiff to be 1990. However, defendant No.2-Smt.Anita filed a criminal complaint against defendant No.1, under Sections 376 , 406, 493, 494, 495, 496 IPC read with Section 120 -B , vide criminal complaint No.29 of 2001. Therein, defendant No.2 had alleged her marriage with defendant No. on 16.12.1998. The complaint was dismissed by the then Additional Chief Judicial Magistrate vide judgment dated 07.05.2012. In the same, it was also averred by defendant No.2 that she had divorced her previous husband Sh.R.C.Bhola, on 26.02.1994. Even, the appeal filed against the judgment was dismissed.

6. On merits, it was averred about the plaintiff to be a stranger to defendant No.1. The contents of paragraph No.4 of the plaint, as such, were averred to be incorrect and it was further stated that the plaintiff is not son of defendant No.1. Defendants No.1 and 2 never lived together. The question of desertion, on the part of defendant No.2 by defendant No.2, as such, does not arise.

7. Defendant No.2-Anita, in the written statement, admitted her relationship. By and large, all the assertions made by the plaintiff were admitted to be correct and a prayer was made for passing of the appropriate order, keeping in view th