THAKOR RAMESHBHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) RULE . Ms.Chetna Shah, learned Additional Public Prosecutor waives the service of notice of rule on behalf of the respondent No.1 ­ State and Mr.Siddharth Dave, learned advocate waives the service of notice of rule on behalf of the respondent No.2.

(2.) IN the facts and circumstances of the case and with the consent of the learned advocates appearing on behalf of the respective parties, present Revision Application is taken up for final hearing today.

(3.) MR .Mahendra Patel, learned advocate appearing on behalf of the petitioner herein ­ husband has submitted that in the facts and circumstances of the case, the learned Magistrate has erred in rejecting the application Ex.29 and in not passing order to conduct DNA Test of the petitioner - husband as well as minor Rahul ­ original applicant No.3. It is submitted that considering the fact that his wife i.e. original applicant went to her parent's house in the month of March, 2008 and thereafter, she returned in the month of December, 2008 and in between the petitioner has never visited his in- laws' house where his wife was residing and never met her wife ­ respondent No.2 herein - original applicant and/or the petitioner herein had no relation with his wife ­ respondent No.2 herein, and when the respondent No.2 ­ wife returned in December, 2008 she was carrying pregnancy of 13 weeks and thereafter she gave birth to the original applicant No.3 ­ Rahul and therefore, the petitioner has reasonable apprehension and/or is justified in contending that the said minor Rahul is not his son and/or he is not the father of the original applicant No.3 ­ Rahul and therefore, he is not liable to pay maintenance to the said Rahul and to prove the same when the petitioner herein submitted application Ex.29 to conduct his DNA Test as well as DNA test of the minor Rahul, in the facts and circumstances of the case, the learned Magistrate ought to have allowed the said application. It is submitted that under the circumstances, except the DNA Test as prayed for, the petitioner has no other alternative to prove the paternity and to prove that he is not the father of minor Rahul. Relying upon the decision of the Hon'ble Supreme Court in the case of Sharda V. Dharmpal, reported in AIR 2003 S.C. 3450, it is submitted that as held by the Hon'ble Supreme Court such a DNA Test is permissible and the same is not in violation of Article 21 of the Constitution of India. Therefore, it is requested to allow the present Revision Application.