ORAL JUDGMENT :-
Rule. Rule made returnable forthwith. Heard finally by consent.
02] The order dated 02/08/2017 passed by the 2ndJoint Civil Judge Senior Division, Akola in Special Civil Suit No.75/2016 allowing the application at Exh.29 calling upon the plaintiff at the instance of the defendants to submit himself for giving the blood sample for D.N.A. test has been allowed.
03] It is an admitted fact that the application at Exh.29 has been filed and allowed by the trial Court even before the issues are framed. If the issues have not been framed and no opportunity has ever come the way of the plaintiff, could the plaintiff, the petitioner be called upon to adduce the evidence of this nature is a question, which ought to have asked to itself by the trial Court and if asked, I am sure, it would have got the answer in negative. The application,
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no doubt was premature and could not have been entertained at this stage. Ultimately, this is for the plaintiff, the master of his own case, to lead the evidence and make an attempt to prove what he claims in his suit. It would have been a different matter if the application had been filed by the defendants after the framing of the issues. But, that is not the case here.
04] There is another aspect involved. The D.N.A. test report is not the only way of proving the biological relations between the parties and there are other ways to prove the same. The question of submission of the blood sample for carrying out of the D.N.A test should arise only when the evidence adduced by the party claiming to be in biological relation with another party is insufficient or of doubtful origin or has been sought to be demolished by adducing contrary proof. But, these contingencies would arise only when the stage of recording of evidence arises and that it would be only after framing of the issues. By making such an application and also allowing it prematurely, in my considered view, the defendants have been allowed to take over the reins of the case of the plaintiff, which logically should have been only in the hands of the plaintiff or the petitioner, till the time he discharged his burden of proof.
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05] In Goutam Kundu vs. State of West Bengal - (1993) 3 SCC 418, the Hon'ble Apex Court has held that Courts in India cannot order blood test as a matter of course and that there must be strong prima facie case for ordering submission of the blood sample for the blood test.
06] In the case of Banarsi Dass vs. Teeku Dutta & Anr. - (2005) 4 SCC 449 reiterating the principle of law laid down in the case of Goutam Kundu, the Hon'ble Apex Court in paragraph 14 observed thus :
"14. …............. It is for the parties to place evidence in support of their respective claims and establish their stands. DNA test is not to be directed as a matter of routine and only in deserving cases such a direction can be given, as was noted in Goutam Kandu case. Present case does not fall in that category..............."
07] The discussion made thus far, makes it obvious that the attempt made by the defendants is not justified inasmuch as it was premature. Therefore, the order impugned in this petition cannot be sustained in the eye of law.
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08] The writ petition is allowed. The order dated 02/08/2017 impugned herein is quashed and set aside. Application at Exh.29 is rejected with liberty to file a fresh application at appropriate time, in case it is required and in such an eventuality, same shall be decided in accordance with law.
09] Rule is made absolute in the above terms.
(S.B. SHUKRE, J.)
*sandesh
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