JUDGMENT

B.P. Routray, J.—Heard Mr.Sahoo, learned counsel for the Petitioner and Mr.Bose, learned counsel for the Opposite Parties.

2. Present CMP is directed against the order dated 02.12.2024 of learned Civil Judge (Sr.Division), Kuchinda passed in C.S.No.3 of 2018, wherein the prayer of defendant no.1 for DNA test of defendant no.3 with regard to his parentage has been rejected.

3. Present Opposite Party No.1 is the plaintiff. The Petitioner is defendant no.1 before the trial court and Opposite Party No.3 is Defendant no.3. The plaintiff filed the suit praying for partition. Defendant No.1 filed his W.S. along with counter claim stating that Defendant no.3 has no share in the suit property for the reason that he is not the son of Thutha Budula@Kisan and then filed the petition dated 23.3.2024 praying for DNA test.

4. It is true that the wife of Thutha Budula was examined as a witness Viz. P.W.2 and she has admitted defendant no.3 as the son of Thutha Budula and herself.

5. In a suit for partition, the prayer for DNA test to determine parentage of rival party is unwarranted. It is to be borne in mind that forcing a person to undergo DNA test affects his right to privacy.

6. In Bhabani Prasad Jena -Vrs- Convenor Secretary, Orissa State Commission for woman and another, (2010) 8 SCC 633, it has been observed that;

“22. In our view, when there is apparent conflict between the right to privacy of a person not to submit himself forcibly to medical examination and duty of the court to reach the truth, the court must exercise its discretion only after balancing the interests of the parties and on due consideration whether for a just decision in the matter, DNA test is eminently needed. DNA test in a matter relating to paternity of a child should not be directed by the court as a matter of course or in a routine manner, whenever such a request is made. The court has to consider diverse aspects including presumption under Section 112 of the Evidence Act; pros and cons of such order and the test of “eminent need” whether it is not possible for the court to reach the truth without use of such test.

23. There is no conflict in the two decisions of this Court, namely, Goutam Kundu v. State of West Bengal and another, (1993) 3 SCC 418 and Sharda v. Dhanupal, (2003) 4 SCC 493. In Goutam Kundu, it has been laid down that courts in India cannot order blood test as a matter of course and such prayers cannot be granted to have roving inquiry; there must be strong prima facie case and the court must carefully examine as to what would be the consequence of ordering the blood test. In Sharda while concluding that a matrimonial court has power to order a person to undergo a medical test, it was reiterated that the court should exercise such a power if the applicant has a strong prima facie case and there is sufficient material before the court. Obviously, therefore, any order for DNA test can be given by the court only if a strong prima facie case is made out for such a course.”

7. In the case at hand, admittedly the suit is for partition where defendant no.1 disputes the parentage of defendant no.3 despite the evidence of P.W.2, the mother. The mother has stated in her crossexamination that Defendant No.3 is her son through Thuta Budula. Moreover, Defendant No.1 does not dispute status of P.W.2 as the wife of Thuta Budula, who is dead now, nor does he dispute valid marriage between P.W.2 and Thuta Budula at any point of time. Defendant No.3 being a third person is also not authorised to do so. In such situation, directing for DNA test of the child on the face of admission of the mother would be an insult to her motherhood and against the law enumerated in section 112 of the Evidence Act. Apart from this, it is inconceivable how the DNA test would be relevant in a case of partition where the status of the parties as the members of joint family is required to be seen to determine their respective shares. It is important to be reminded here is t