ORAL JUDGMENT:
Rule. Rule made returnable forthwith. Heard finally with the consent of the learned counsels appearing for the parties.
2. This petition challenges the order dated 8.8.2022, passed in Petition No. C-16/2019, below Exhibit 16, by the Judge, Family Court - 4, Nagpur, thereby directing to conduct DNA test of the Amended as per
Registrar (J) order
dtd 4.8.2023
2026:BHC-NAG:5367
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petitioner.
3. The petitioner who claims to be the son of the respondent had filed several applications before the Family Court seeking for maintenance and educational expenses from the respondent under the provisions of Hindu Adoption and Maintenance Act, 1956. During the pendency of the proceedings before the Family Court, the petitioner has attained majority. In the said proceedings, since the respondent was suspicious over the paternity of the petitioner, the respondent filed application below Exhibit 16 seeking permission to conduct the DNA test of the petitioner which was allowed vide impugned order.
4. The learned counsel for the petitioner, Mr. Sadavarte, vehemently submitted that, since the respondent was working as a Loco Pilot in Indian Railway and used to work in extreme temperatures while driving trains. Therefore, the sperm count in his semen was highly retarded and was considered unfit for child birth. Hence, the mother of petitioner could not conceive for a considerable period of time. Thereafter, the respondent and the petitioner's mother decided to avail for the treatment of artificial insemination with donor sperm/husband's sperm. The consent form has been duly
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obtained by the concerned doctor wherein discretion was left to the doctor to either to use sperm of the respondent or the donor with a pre-condition that no questions will be raised with regards to the identity of the donor. That form has been placed on record as Annexure A. According to him, soon after the treatment, the petitioner's mother conceived and the petitioner was born. Thus, according to him, seeking the direction to conduct the DNA test of the petitioner is unnecessary and challenges the impugned order.
5. Per contra, Mr. Neware, the learned counsel for the respondent objected the petition on the ground that, though the respondent agreed for the treatment, but according to him, the statement made by the petitioner in reply before the Family Court itself suggests that the respondent's semen was analysed and it was concentrated and thereafter, the mother of the petitioner became pregnant. According to him, the respondent was having sufficient sperm count to give birth to a child. It is further stated that, since the respondent has doubt over the paternity of the petitioner, the Family Court has rightly passed the order of allowing the DNA test to be conducted.
6. It is not in dispute that, the respondent and his wife had
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undergone the medical treatment by Dr. Meena Chimote at
"Vaunshdhara Clinic and Infertility Centre for Women and Men".
The consent form shows that the respondent and the wife of the respondent consented, giving discretion to the doctor for selection of appropriate donor in order to get the wife of the respondent pregnant. This supports the argument of the learned counsel for the petitioner. So far as the submission of the respondent that, the petitioner has accepted that the semen of the respondent was concentrated and thereafter the wife of the respondent conceived is concerned, it appears that the learned counsel for the respondent did not read the reply of the petitioner to the application for direction of DNA test properly.
7. Perusal of the reply shows it contents the sequence of events and ultimately, the reply states that the treatment at Vaunshdhara Clinic and Infertility Centre for Women and Men was taken with consent, for insemination with a doner's sperm, or the husband's sperm, whichever is more effective. Therefore, the reply is in consonance with the defence of the petitioner that possibility of insemination with the donor's sperm for getting the wife of the respondent pregnant cannot be ruled out.
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8. Needless to mention that, the treatment was taken at Vaunshdhara Clinic and Infertility Centre for Women and Men in the month of January 2004 and immediately the respondent's wife conceived and thereafter delivered a baby boy - the petitioner in the month of September 2004. This aspect has not been considered by the Family Court and therefore, the order passed by the Family Court does not stand for any reason and is required to be set aside. The Writ Petition is allowed. Accordingly, the impugned order dated 8.8.2022, passed in Petition No. C-16/2019, below Exhibit 16, by the Judge, Family Court - 4, Nagpur, is hereby quashed and set aside.
(M.W. CHANDWANI, J.)
Belkhede PS
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