The main legal point established in the judgment is the delicate nature of DNA testing in matters of paternity, the court's duty to arrive at the truth, and the discretion under Section 151 of the CPC to pass orders for doing complete justice to the parties.

JUDGMENT :

Satish K. Agnihotri, J.

The instant petition, preferred under Articles 226/227 of the Constitution of India, is directed against the order dated 15.06.2016 rendered in Title Suit No. 40 of 2013, wherein and whereunder the Civil Judge, South at Namchi directed the plaintiff, the defendant, against whom the paternity is claimed by the plaintiff and mother of the plaintiff for the Deoxyribonucleic acid test (for short, ‘DNA test’). The defendant, as aforestated, has come up with this instant petition questioning the legality and validity of the impugned order on several grounds, inter alia, the direction to undergo DNA test for examining claim of paternity is per se illegal and violative of constitutional and legal rights of the defendant/petitioner herein.

2. Mr. A.K. Upadhyaya, learned Senior Counsel appearing for the petitioner, would contend that the petitioner herein has a reputation in the society, undergoing a DNA test may undermine his reputation and name. Thus, undergoing a DNA test, as directed by the Civil Court, is violative of fundamental, constitutional, legal and natural rights. It is further contended that the Civil Court ought to have decided the Title Suit for declaration, on examination of other witnesses instead of directing the DNA test. It is lastly argued that the evidences adduced by both the parties are sufficient to decide the dispute raised in the suit.

3. On the other hand, Mr. Karma Thinlay, learned Senior Counsel, who was appointed by the Sikkim State Legal Services Authority, to help the plaintiff/respondent herein and assist the Court, submits that if the defendant undergoes the DNA test, the truth will come out and the claim of the respondent herein of being the son of the petitioner herein will be clearly examined with stronger and cogent reasons. In the facts of the case, other oral evidences adduced by the parties may not be substantial and conclusive. Mr. Thinlay relied on a decision of the Supreme Court in Narain Dutt Tiwari vs. Rohit Shekhar and Another, (2012) 12 SCC 554.

4. Heard learned Senior Counsel appearing for the parties. Examined the pleadings and documents appended thereto carefully.

5. The respondent herein filed a suit for declaration/determination of paternity against the petitioner herein, on 30.11.2013, claiming that the defendant/petitioner herein is the biological father of the respondent herein. The Civil Court, after hearing both the parties framed the following issues on 23.09.2014: -

“1. Whether there was a relationship between the mother of the plaintiff and the defendant?

2. Whether the plaintiff is the biological son of the defendant born through his relationship with Pavitra Darjee (Mother of the plaintiff)?

3. Whether the birth certificate filed by the plaintiff is genuine?

4. Whether the plaintiff is entitled to any relief (f), if any?”

Thereafter, the respondent herein preferred an application under Section 151 of the Code of Civil Procedure, 1908 (for short, “CPC”) seeking a direction for DNA test of the plaintiff as well as the defendant. The learned Civil Judge considering all aspects of the matter initially declined to undergo for a DNA test observing that “if at a later stage the Court is of the view that the evidence placed forth by the parties is not sufficient to arrive at a just determination of the issues, then by invoking the power under Section 151 CPC, the Court may allow the parties to undergo a DNA test” vide order dated 04.08.2015. Thereafter, it appears that the Civil Court, after examination of the evidences, thought it appropriate to direct the DNA test of the plaintiff and defendant to arrive at a conclusive finding, vide the impugned order.

6. The question which arises for consideration in this petition is as to whether the DNA test is essential in a suit for declaration/determination of paternity when the biological father is not legally wedded husband of the mother of the petitioner and whether the same can be denied on the ground of purport