AFR HIGH COURT OF CHHATTISGARH AT BILASPUR W.P(227) No.760 of 2024 Abhishek Sarkar S/o Harigopal Sarkar Aged About 37 Years R/o Sector

6/A Market Bhilai Tehsil Durg District Durg (C.G.) ... Petitioner versus

1 - Smt. Dipika Mandal W/o Abhishek Sarkar Aged About 28 Years, R/o Ward No. 1 Pandhar, Dallirajhara, Tehsil Daundi, District Balod (C.G.) 2 - Tabis S/o Abhishek Sarkar Aged About 4 months Through Natural Guardian Mother Namely Smt. Dipika Mandal, R/o Ward No. 1 Pandhar, Dallirajhara, Tehsil Daundi District Balod (C.G.) ... Respondents For Petitioner : Shri Shubhank Tiwari, Advocate.

Hon'ble Shri Justice Deepak Kumar Tiwari

Order on Board

30.08.2024

1. This Petition has been filed for the following reliefs:-

“1 That, this Hon’ble Court may kindly be pleased to set aside the order dated 09.07.2024 passed by the Judge, Family Court, Balod (CG) in Misc. Criminal Case No.97/2023 in the case of “Smt Dipika Mandal & Anr vs. Abhishek Sarkar” and the application filed by the husband may kindly be allowed throughout cost.

2. That, this Hon’ble Court may kindly be pleased to grant any other relief, which it deems fit and proper.

2. Facts of the case in brief are that the Petitioner and Respondent are husband and wife whose marriage was solemnized on 24.01.2022 at Dallirajhara, District Balod. The wife along with her minor son has filed an application for grant of maintenance under Section 125 CrPC before the trial Court and in the said proceeding, the husband has also filed an application for conducting DNA test while denying the paternity of the child, which was dismissed by the order impugned. Hence this Petition.

3. Shri Tiwari submits that the learned Family Court has wrongly dismissed the application filed by the husband for conducting DNA test. He further submits that in the reply filed by the husband, at para-13, a specific defence has been raised that the relationship was made with protection, therefore, when the paternity of the minor son is doubtful, the application ought to have been allowed. He placed reliance on Sharda vs. Dharmpal reported in (2003) 4 SCC 493 and referred to para-81, which reads as under:-

“81. To sum up, our conclusions are:

1. A matrimonial court has the power to order a person to undergo medical test.

2. Passing of such an order by the court would not be in violation of the right to personal liberty under Article 21 of the Indian Constitution

3. However, the court should exercise such a power if the applicant has a strong prima facie case and there is sufficient material before the Court. If despite the order of the court, the respondent refuses to submit himself to medical examination, the court will be entitled to draw an adverse inference against him.”

He further placed reliance on Amrit Singh vs. State of Punjab reported in AIR 2007 SC 132 wherein, the Appellant was prosecuted for offence of rape and murder and during investigation, on an application filed by the investigating officer for obtaining the sample of hair, the Appellant refused to do so without assiging any reason and therefore, an adverse inference was drawn against the said Appellant/accused. He lastly submits that in the aforesaid backdrop, the order impugned is not sustainable and prays to set aside the same and allow the said appllication.

4. Heard learned Counsel for the Petitioner, perused the order impugned as also the necessary documents annexed herewith carefully. 5. Recently, in the matter of Aparna Ajinkya Firodia vs. Ajinkya Arun Firodia reported in 2023 SCC OnLIne SC 161, while dealing with the application for DNA test of children born during the subsistence of a valid marriage, it was held that the said test can be directed only when there is sufficient prima facie material to dislodge the presumption under Section 112 of the Evidence Act. Further, if no plea has been raised as to non-access, in order to rebut the presumption under Section 112 of the Evidence Act, a DNA test may not be directed. It was materially observed further tha