HON’BLE SRI JUSTICE N.TUKARAMJI CIVIL REVISION PETITION NO. 28 OF 2024

ORDER:

1. Heard Ms. A. Pratibha, leaned counsel for the revision petitioner and Mr. M.P. Pavan Kashyap, learned counsel for the respondent.

2. This revision has been filed assailing the order dated 12.12.2023 in I.A. No.735 of 2022 in O.S. No. 17 of 2018 on the file of Judge, Family Court-cum-III Addl. District Judge, at Nizamabad.

3. Relevant facts in brief are that, the revision petitioner as plaintiff filed the suit seeking partition of the schedule properties. During trial, the revision petitioner filed an application under Section 112 of the Indian Evidence Act seeking the direction to the respondent for undergoing Deoxyribonucleic Acid (DNA) Test to prove the paternity of the daughter. The trial Court by the impugned order dismissed the petition holding that the Court cannot force a party to undergo DNA test as it effects the personal liberty.

4. In the revision petition, it has been contested that as the respondent is disputing the paternity of his daughter the petitioner has left with no option but to prove through DNA test. Thus, the Court should have allowed the petition for DNA examination and the dismissal would result in miscarriage of justice.

5. On the other hand, learned counsel for the respondent would submit that the respondent had opposed the application on the ground that he had no marital relationship with the petitioner and never lived with her and this fact also been approved by the dismissal of the application filed by the petitioner under Protection of Women from Domestic Violence Act, 2005. Thus, the respondent had refused to undergo to DNA test and the trial Court had rightly appreciated and passed the impugned order. Hence, there is no tenable ground for interference in the revision.

6. I have considered the rival submissions and the materials on record.

7. The impugned application came to be filed as the respondent had declined paternity of her daughter. The revision petitioner had pleaded valid marriage with the respondent and that her daughter is their legitimate child.

8. Be that as it may, the issue of directing the parties to undergo DNA test to prove the paternity of the child has been considered by the Hon’ble Apex Court in series of decisions.

9. In Bhabani Prasad Jena vs Convener. Secretary Orissa State Commission for Women and another the Hon’ble Apex Court observed in Para No.13 as under:

13. In a matter where paternity of a child is in issue before the court, the use of DNA is an extremely delicate and sensitive aspect. One view is that when modern science gives means of ascertaining the paternity of a child, there should not be any hesitation to use those means whenever the occasion requires. The other view is that the court must be reluctant in use of such scientific advances and tools which result in invasion of right to privacy of an individual and may not only be prejudicial to the rights of the parties but may have devastating effect on the child. Sometimes the result of such scientific test may bastardise an innocent child even though his mother and her spouse were living together during the time of conception. 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 is eminently needed. DNA 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”.

10. This view has also been reiterated in a re