Manoj Kumar Gupta, J.-By impugned order dated 30.4.2019 the Additional Principal Judge, Family Court, Basti has rejected an application made by the petitioner for getting DNA test of Km. Anjali (opposite party No.1) conducted by a team of medical experts.
2. The opposite parties brought suit for maintenance against the petitioner being Original Suit No.519 of 2011. According to the opposite parties, they are daughter-in-law and grand daughter respectively of the petitioner herein. Opposite party No.2 was married to Santosh Kumar, son of the petitioner on 17.5.2006 and vidai ceremony took place on 18.5.2006. She was brought to her in-laws house at Mauza Hariharpur and she started living with her husband. Out of the said wedlock, opposite party No.1 was born. She is stated to be of four years of age in the year 2011 when the suit was instituted. Santosh Kumar, husband of opposite party no.2 and father of opposite party no.1 died on 29.12.2007. Since the opposite parties do not have any source of livelihood, they filed the suit in question.
3. The petitioner filed an application dated 25.4.2017 alleging that opposite party no.2 had before entering into matrimonial alliance with his son Santosh Kumar married different persons and even after death of Santosh Kumar, she had remarried. It was alleged that opposite party No.1 was not born out of the wedlock between opposite party No.2 and his son Santosh Kumar. Therefore prayer was made for getting DNA test of opposite party no.1 conducted by a team of medical experts.
4. The application was opposed by the opposite parties. They brought on record extract from family register wherein opposite party No.1 is shown as daughter of Santosh Kumar.
5. The trial court, placing reliance on the judgement of the Supreme Court in Goutam Kundu vs State of West Bengal, (1993) 30 AllCriC 416 held that the presumption under Section 112 of the Indian Evidence Act, 1872 is attracted in such matters and unless it is shown that the parties to the marriage had no access to each other at any time when the daughter was born, there is no need of getting conducted DNA test. The court has also observed that prima facie the documentary evidence also establishes that opposite party No.1 is daughter of Late Santosh Kumar and has accordingly rejected the application.
6. Learned counsel for the petitioner submitted that in extract of family register, date of birth of opposite party No.1 is shown as 24.4.2004 i.e., a date before the marriage between opposite party No.2 and Santosh Kumar was solemnized. In other words, the submission is that since opposite party No.1 was born before marriage between opposite party No.2 and Santosh Kumar, therefore she was not born out of wedlock between them.
7. Section 112 of the Evidence Act, 1872 reads thus :-
"112. Birth during marriage, conclusive proof of legitimacy-- The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten."
8. The Supreme Court in Bhabani Prasad Jena vs. Convenor Secretary, Orissa State Commission for Women and another, (2010) 8 SCC 633 has held as follows :-
"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."
9. Again, in Dipanwita Roy vs Ronobroto Roy, (2015) 1 SCC 365, the Supreme Court, while reiterating the test of ''''eminent need'''', held as follows :-
"It is borne from the decisions rendered by this Court in Bhabani Prasad Jena and Nandlal Wasudeo Badwaik that depending on the facts and circumstances of the case, it would be permissible for a Court to direct the holding of a DNA examination, to determine the veracity of the allegation(s), which constitute one of the grounds on which the concerned party would either succeed or lose. There can be no dispute that if the direction to hold such a test can be avoided it should be so avoided. The reason, as already recorded in various judgments by this Court is that the legitimacy of a child should not be be put to peril."
10. I have gone through the pleadings made in the written statement and I do not find any categorical plea to the effect that the parties had no access to each other during the marriage. The only assertion in the written statement is that after some time, opposite party No.2 left the matrimonial house alongwith her goods. The exact date on which she left the matrimonial house has not been disclosed. There is also no assertion in the written statement that during the period they were living together in the matrimonial house, they had no access to each other. The specific case of the opposite parties as per assertions made in the plaint is that opposite party No.1 was four years of age at the time of filing of the plaint. It would mean that opposite party No.1 was born in the year 2007. Santosh Kumar is alleged to have died on 29.12.2007 while the presumption under Section 112 of the Evidence Act would stand attracted even where any person was born within 280 days after the marriage had come to an end (in the instant case on account of death of Santosh Kumar). The alleged entry relating to date of birth of opposite party No.1 in the family register is in serious dispute and the said aspect is yet to be examined during trial on basis of evidence to be led by the parties.
11. A DNA test to determine paternity of child should not be directed as a matter of course. The court has to consider various diverse aspects including presumption under Section 112 of the Evidence Act. At this juncture applying the test of ''''eminent need'''' laid down by the Supreme Court in Bhabani Prasad Jena (supra), this court finds no illegality in the view taken by the court below to warrant interference in exercise of supervisory power under Article 227 of the Constitution.
12. The petition lacks merit and is accordingly dismissed.