IMPORTANT POINTS
(1) DNA test – Paternity of child – Any Matrimonial (Civil) dispute between husband and wife pertaining to child born from wedlock, cannot be used for their own benefit by way of DNA Paternity Test, among other things – Frivolous claim of the husband or wife would have much adverse affect on mental health of child.
(2) DNA test – Paternity of child – DNA Paternity Test requires to be conducted only in exceptional cases – Child cannot be used as weapon to get divorce on ground of adultery, on strength of outcome of DNA Paternity Test – Court has to keep into paramount consideration mental and physical health of child and aspects adversely affecting it.

ORDER

Dr. Pushpendra Singh Bhati, J.—This writ petition has been preferred claiming the following reliefs:—

“It is, therefore, most respectfully prayed on behalf of petitioner that the writ petition may kindly be allowed and by an appropriate writ, order or direction:—

I. the order dated 15.11.2022 (Annexure-6) passed by the learned Family Court No.1, Udaipur in case no.757/2019 may kindly be set aside and the application (Annexure-2) filed by the petitioner under Order 6 Rule 17 read with Section 151 CPC may kindly be allowed in toto;

II. Any other appropriate order or direction, which this Hon’ble Court considers just and proper in the facts and circumstances of this case, may kindly be passed in favour of the petitioner.

III. Costs of the writ petition may kindly be awarded to the petitioner.”

2. Brief facts of the case as placed before this Court by Dr.Sachin Acharya, learned Senior Counsel assisted by Mr. Jitendra Choudhary, appearing on behalf of the petitioner-husband, are that the petitioner-husband filed an application (registered as Case no.83/2019) under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as ‘Act of 1955’), seeking a divorce decree, before the learned Family Court, Bhilwara, against respondent-wife; the same was further transferred to the learned Family Court No.1, Udaipur, and registered as Case No.757/2019 in the said Court.

2.1. The ground, as raised in the application under Section 13 of the Act of 1955, was cruelty, and not adultery.

2.2. During pendency of the divorce application, the petitioner-husband preferred an application therein under Order 6 Rule 17 read with Section 151 Code of Civil Procedure, 1908 (in short, ‘CPC’) seeking to add para nos. 12A and 12B as well as ground A- 1 in the pleading of the application under Section 13 of the Act of 1955, on the basis of the Deoxyribonucleic Acid (DNA) Paternity Test Report dated 11.09.2019 (as annexed with the said application), of the child (son), while claiming the same to be a subsequent development in the case before the learned Family Court.

2.3. The respondent-wife filed a detailed reply to the said application under Order 6 Rule 17 read with Section 151 CPC, denying the averments made therein. The learned Family Court vide the impugned order dated 15.11.2022 rejected the application under Order 6 Rule 17 read with Section 151 CPC preferred by the petitioner-husband. Hence, the present petition has been preferred by the petitioner-husband, claiming the aforequoted reliefs.

3. Learned Senior Counsel for the petitioner-husband submitted that the DNA Paternity Test Report dated 11.09.2019 clearly reveals that the petitioner-husband is not the father of the child (son), and that, the requisite test has been conducted at DDC, an ISO/IEC 17025:2005, ICLA and Cap Accredited Laboratory.

3.1. Learned Senior Counsel further submitted that a Family Court, dealing with matrimonial matters, has the power to order conducting of the medical test, owing to the issue involved in a particular case, and the same would certainly not amount to violation of the right to personal liberty, of any person, as enshrined under Article 21 of the Constitution of India.

3.1.1. Therefore, as per learned Senior Counsel, a person can be lawfully compelled to undergo DNA Paternity Test in a matrimonial matter for the purpose of proving or disproving the paternity in question. In support of such submission, reliance has been placed on the judgment rendered by the Hon’ble Apex Court in the case of Sharda Vs. Dharmpal (2003) 4 SCC 493, and the judgment rendered by the Hon’ble Madras High Court in the case of Bommi & Ors. Vs. Munirathinam (C.R.P. No. 2710 of 2003, decided on 28.07.2004).

3.2. Learned Senior Counsel also submitted that the DNA Paternity Test is the most important method for the purpose of determining the paternity of a child, and thus, the same can be claimed as a matter of right, and cannot be denied by any person; as regards the presen