DNA testing is essential in paternity disputes and can override legal presumptions of legitimacy under the Evidence Act.

JUDGMENT

Aggrieved by Ext.P7 order passed in I.A. No.4/2021 in O.S.No.387/2019 by the Court of the Munsiff, Perumbavoor, the plaintiff in the suit has filed the original petition. The respondents are the defendants in the suit.

2. The factual matrix leading to Ext.P7 order, in a nutshell, is: the petitioner has filed the suit against the respondents for a declaration that he is the biological son of the 1st respondent. The 1st respondent – the putative father - has refuted the allegations in the plaint by filing Ext.P2 written statement. On the other hand, the mother of the petitioner has filed Ext.P3 written statement, admitting the averments in the plaint and, inter-alia, contending that the petitioner was born in the relationship between her and the first respondent. In view of the blunt denial made by the 1st respondent in Ext.P2 written statement, the petitioner was compelled to file I.A.No.4/2021 (Ext.P4), under Section 75 (e) read with Order 26 of the Code of Civil Procedure, 1908 (in short ‘Code’), to direct the petitioner and the respondents to be subjected to Deoxyribonucleic Acid (DNA) Test for a fair and just decision of the suit. The application was opposed by the 1st respondent through Ext.P5 counter statement. The court below, by the impugned Ext.P7 order, has dismissed Ext.P4 application. Ext.P4 is ex-facie illegal, erroneous and unsustainable in law. Hence, the original petition.

3. Heard; Sri. M.K.Gopimohanan, the learned counsel appearing for the petitioner and Sri. Jayaprasad M.R., the learned counsel appearing for the 2nd respondent. Even though notice has been served on the 1st respondent, there is no appearance for him.

4. The short point is, is there any illegality in Ext.P7 order.

5. The specific case of the petitioner, in Ext. P1 plaint, is that he was born out of the relationship between the respondents. The 1st respondent had agreed to marry the 2nd respondent and financially support the petitioner, but he later, resiled from his promise. However, the 1st respondent treated the petitioner as his son. But, in 2019, he denied the relationship.

6. The 1st respondent has denied the said allegations in the plaint, but the 2nd respondent has admitted the same.

7. In the above background, the petitioner filed Ext.P4 application to subject all the parties to a DNA profiling test, to ascertain the paternity of the petitioner.

8. The law with regard to subjecting a person to DNA test is no longer res integra, in view of the myriad judicial pronouncements of the Hon’ble Supreme Court and this Court.

9. The subtle distinction in the case on hand is that, here the petitioner desires to get his paternity declared and not his legitimacy. The latter terminology has no application because there is no marriage between the respondents. Therefore, the rigor of conclusive proof under Section 112 of the Evidence Act cannot be strictly drawn in the instant case. Most of precedents relied on by the court below in this regard are irrelevant.

10. In Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik [ AIR 2014 SC 932 ], the Hon’ble Supreme Court has emphatically held that the result of a DNA test is scientifically accurate and when there is a conflict with conclusive proof contemplated under Section 112 of the Evidence Act , the DNA test result would prevail over the presumption of law.

11. InSharda v.Dharmpal [ AIR 2003 SC 3450 ], the Hon’ble Supreme Court has held that the courts have the power to direct a person to undergo a medical test de hors his right to life under Article 21 of the Constitution of India . If a person refuses to undergo a test, then adverse inference can be drawn against him.

12. In a case of identical circumstances, i.e., in Rohit Shekhar v. Narayan Dutt Tiwari and another [AIR 2012 Delhi 151] the Delhi High Court speaking through Justice S. Ravindra Bhat (as he then was), has succinctly held that persons can be directed to undergo DNA test, when the dispute revolves on the paternity of a person.

13. On a consp