JUDGMENT :

Sharad Kumar Sharma, J.

The intricate question, which has been attempted to be argued by the learned counsel for the applicant, while giving a challenge to the impugned order dated 16.02.2023, by virtue of which, the Family Court, Haridwar, has allowed the application as preferred by the respondent for the purposes of conducting the DNA test on the two children, in order to establish the fact beyond any doubt that they are born out of the relationship, which the applicant had with the present applicant.

2. The argument of the learned counsel for the applicant while putting a challenge to the said order dated 16.02.2023, is primarily based upon the judgment as reported in AIR 1993 SC 2295, “Goutam Kundu Vs. State of Westbengal and another”, whereby the Hon’ble Apex Court while considering the implications of Section 112 of the Evidence Act and reading in consonance, and in context of the provisions of the CrPC, for the purposes of conducting the DNA test, has laid down the wider principles in paragraph no.26 of the judgment, which has been heavily relied by the learned counsel for the applicant. Paragraph no.26, of the said judgment is extracted hereunder:-

“26. From the above discussion it emerges:-

(1) that courts in India cannot order blood test as matter of course;

(2) wherever applications are made for such prayers in order to have roving inquiry, the prayer for blood test cannot be entertained.

(3) There must be a strong prima facie case in that the husband must establish non-access in order to dispel the presumption arising under section 112 of the Evidence Act.

(4) The court must carefully examine as to what would be the consequence of ordering the blood test; whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman.

(5) No one can be compelled to give sample of blood for analysis.”

3. Before venturing to answer the said question raised by the learned counsel for the applicant, with regards to the non compliance of the parameters laid down by the aforesaid judgment and with all due reverence at my command, this Court is of the view, that the ratio laid down by the Hon’ble Apex Court cannot be unilaterally and universally be applied, irrespective of the consideration of the fact and circumstances of each case. Its applicability will always depend upon the facts and circumstances under which the necessity for conducting the DNA test was felt, to be expedient by the court for an effective adjudication of the controversy prevailing inter se between the parties, which is placed before the Court.

4. As far as the instant case is concerned, the fact as it has been pleaded in the present C482 application by the present applicant is by putting a challenge to the impugned order which was passed by the Judge Family Court in Case No.184 of 2021, “Smt. Husna and others Vs. Murtaza” being a proceeding which were held under section 125 of CrPC. The application for conducting a DNA test on the respondent nos.3 and 4, was permitted under the given set of circumstances of this particular case, where the case of the present applicant in the C482 application was that respondent no.2, was alleged to have been earlier married to one Shri Nawabuddin, who was a resident of Meerut, and out of the said wedlock, she had two sons, who were born. Later on, the marriage of the respondent no.2 with Shri Nawabuddin, was severed in 2014, and owing to the divorce given in February, 2014. Respondent no.2, is alleged to have married with one Shri Javed, and it is yet again contended that respondent nos.3 and 4, have born out of the matrimonial relationship between respondent no.2 and Javed, the second husband.

5. It is contended in the C482 application, that respondent no.2, is concealing the factum of her marriage with Shri Nawabuddin, and the fact of children born out of the first marriage, and admittedly they were “living with the applicant”, along with the family of the applicant in an assured anticipation of