Bench:

Mr. Justice Bhishmadev Chakrabortty And

Mr. Justice Md. Akhtaruzzaman

Civil Revision No. 609 of 2022

Hamida Akter Mina and others

..... petitioners -Versus-

Md. Mamun Sajjad (Rubel) and others

..... opposite parties

Mst. Jannati Khatun, Advocate

..... for the petitioners

Mr. Debashis Bhattacharya, Advocate

..... for opposite party 1

Judgment on 08.02.2024

Bhishmadev Chakrabortty, J:

In this rule, issued at the instance of the plaintiffs, the opposite parties were called upon show cause as to why order dated 19.10.2021 passed by the Joint District Judge, Court No. 5, Dhaka in Title Suit No. 614 of 2015 rejecting the petitioners’ application for holding DNA test of petitioners 2 and 3 with opposite parties 1-3, 5 and 6 to ascertain their paternity should not be set aside and/or such other or further order or orders passed to this Court may seem fit and proper.

At the time of issuing the rule, all further proceedings of the aforesaid suit was stayed for a limited period which was subsequently extended till disposal of the rule.

Facts relevant for disposal of the rule, in brief, are that the plaintiffs instituted the suit against the defendants praying for partition

of the suit property claiming their saham to the extent of .145954 acres out of 20 katha and 3.5 chhataks of land as detailed to the schedule of the plaint. They claimed that plaintiff 1 Hamida Akter Mina was the second wife of Md. Al Amin alias Mohammad Amin Sajjad, plaintiff 2 is his daughter and plaintiff 3 is the son. Defendant 1 is the son and defendants 2 and 3 are daughters of late Amin Sajjad also and defendant 4 is his first wife. Defendants 1-4 have been enjoying the schedule suit property depriving the plaintiffs and as such they instituted the suit and prayed for saham of the property of late Sajjad. Defendants 1-5 appeared in the suit and filed written statement denying the averments made in the plaint. They mainly contended there that Amin Sajjad was the original owner of the suit property. He died leaving behind the above defendants as heirs; that plaintiff 1 was not his wife and plaintiffs 2 and 3 are not his issues. The suit has been filed on false averments and as such it would be dismissed.

During pending of the aforesaid suit, the plaintiffs filed an application on 23.03.2021 for holding DNA test to ascertain the paternity of plaintiffs 2 and 3 and that the DNA test is to be done with defendants 1-3 the sons and daughter of late Sajjad, defendant 5 his brother and 6 sister. The defendants opposed the said application without filing any written objection. However, the learned Judge heard both the parties and by its judgment and order under challenge rejected the same.

Mst. Jannati Khatun, learned Advocate for the petitioners appearing for Advocate Mr. Bakir Uddin Bhuiyan takes us through the materials on record and submits that this is a suit for partition claiming plaintiffs’ saham in the suit property. Plaintiff 1 claimed that she was the second wife of late Amin Sajjad and plaintiffs 2 and 3 are his daughter and son respectively. Since the defendants did not agree that late Amin Sajjad was the father of plaintiffs 2 and 3, a DNA test is required to be held to ascertain their paternity for proper disposal of the suit. She then refers to the provision of section 12 of Deoxiribonuclic Acid (DNA) Ain, 2014 and submits that to resolve a dispute between the parties the Court can pass an order to hold DNA test. He refers to the case of Beautiful Bibi Vs. Md. Sydur Rahman, 67 DLR 1 and submits that the DNA test has been accepted worldwide as a reliable scientific method for various purposes including determination of parentage. In disposing the application, the learned Joint District Judge mainly relied on the judgment and decree passed in Family Suit No. 752 of 2005