HARIBHAI CHANABHAI VORA Vs. KESHUBHAI HARIBHAI VORA

JUDGEMENT

(1.) In this petition filed under Article 227 of the Constitution of India, the petitioner has challenged the legality and validity of the order dated 31.1.2004 passed by the learned Civil Judge (Junior Division), Jetpur below Exh.77 in Regular Civil Suit No.153 of 2002 by which the learned trial Court has passed the order directing the petitioner No.1 - original defendant No.1 to remain present before the Government Hospital for his DNA test.

(2.) The respondent herein - original plaintiff has filed Regular Civil Suit No.153 of 2002 in the court of the learned Civil Judge (Junior Division), Jetpur for declaration to the effect that the property in question is the ancestral property and he has right and title over the land in question. In the said suit, the petitioners original defendants appeared and filed the written statement and it was denied by petitioner No.1 original defendant No.1 that the plaintiff is his son. Considering the said stand in the written statement by the defendant, the application below Exh.77 was given by the respondent - original plaintiff for having DNA test of the plaintiff as well as of the original defendant No.1 and on that application, the trial Court passed the order allowing the said application directing petitioner No.1 and the respondent herein - original plaintiff to appear before the Government Hospital for their DNA test. Being aggrieved by and dissatisfied with the same, the present petition has been filed by the petitioners-original defendants.

(3.) Mr.Trivedi, learned advocate appearing for the petitioners has submitted that the impugned order passed by the learned trial Court directing petitioner No.1 to appear before the Government Hospital for DNA test is absolutely illegal and without jurisdiction and against consent of petitioner No.1 which is not permissible. He submitted that by directing petitioner No.1 to appear before the Government Hospital for DNA test is an interference contrary with his personal liberty. He further submitted that compulsion to undergo medical examination is certainly interference with the personal liberty of the citizen, i.e. petitioner No.1 herein and such personal liberty could only be interfered with the consent of petitioner No.1. He submitted that, in the present case, petitioner No.1 has not given any consent for DNA test. He has relied upon the judgment of the Honourable Supreme Court in the case of Gautam Kundu Vs. State of W.B. and another, reported in AIR 1993 SC 2295. Relying upon the said judgment, he has submitted that, as held by the Honourable Supreme Court before the blood test of a person is ordered, his consent is required, as, that test is concerned with his personal liberty and cannot be carried out without his consent. He submitted that, even the Honourable Supreme Court has gone to the extent that even if there is legislature which can compel the blood test, then also unless and until there is consent of the concerned person, he cannot be compelled to appear before the hospital for giving blood test. Relying upon the said decision, he submitted that so far as DNA test is concerned, in these advance days it can be compared with and the same analogous can be applied even for the DNA test also. He has relied upon the judgment of the Kerala High Court in the case of Sajeera Vs. P.K.Salim, reported in 2000 CRI.L.J. 1208, the judgment of the Andhra Pradesh High Court in the case of Syed Mohd. Ghouse Vs. Noorunnisa Begum, reported in 2001 CRI.L.J. 2028 and also the judgment in the case of Bipinchandra Shantilal Bhatt Vs. Madhuriben B.Bhatt, reported in 4 GLR 890. Very aspect with regard to compelling the father to submit himself to DNA test against his consent came to be considered by the Andhra Pradesh High Court in the case of Syed Mohd. Ghouse (supra). The Andhra Pradesh High Court considering the judgment of the Honourable Supreme Court in the case of Gautam Kundu (supra), has held as under.: