SATHYARAJ Vs. JAYAPRAKASH

JUDGEMENT

(1.) Whether the civil court can direct a party to undergo DNA test This is the question to be settled in this writ petition. Petitioner is the plaintiff in O.S. 529 of 2004 on the file of Munsiff Court, Alappuzha and respondent, the defendant. Suit is filed for declaring that respondent is the father of the petitioner. Respondent denied that case. Petitioner filed I.A. 3449 of 2007 for a direction to the petitioner and respondent to undergo DNA test. Under Ext.P2 order, learned Munsiff dismissed the petition. It is challenged in this petition filed under Article 227 of Constitution of India.

(2.) Learned Counsel appearing for petitioner and respondent were heard. Learned Counsel appearing for petitioner argued that learned Munsiff relied on the decision of the Apex Court in Goutam Kundu v. State of West Bengal,, without taking note of the subsequent Full Bench decision where the decision in Goutam s case was clarified. Learned Counsel, relying on the decision in Sharda v. Dharmpal, argued that it is not the law that in no circumstances blood test can be conducted and facts of the case in Goutam s case are entirely different and what was held by the Apex Court therein was only that courts cannot order blood test as a matter of course and in view of Section 112 of the Evidence Act, non-access is to be established and it is different from a case where the son himself approaches the court for declaration of his paternity and this is not a case of making the child a bastard but declaring the actual person as the father and in such circumstances, learned Munsiff should have allowed the application.

(3.) Learned Counsel appearing for respondent, relying on the decision in Goutam s case argued that before ordering a DNA test, court must prima facie be satisfied that respondent is the father and in the absence of prima facie satisfaction, DNA test cannot be compelled. Learned Counsel also argued that respondent is not willing to undergo DNA test and in such circumstances, there is no reason to interfere with Ext.P2 order.