SUBHENDU MAITY Vs. SUSHMA NAYAK

JUDGEMENT

(1.) The petitioner who is the plaintiff in the learned Court below has challenged the Order No. 99 passed on 31st March, 2009 by the learned Civil Judge, (Junior Division), 1st Court, Midnapore who had allowed the prayer of the defendant/opposite party for DNA testing of the parties to determine the paternity of the female minor child of the said defendant. Perusal of prayer "Kha" in the plaint filed by the petitioner in the learned Court below goes to show that he had sought for an injunction to restrain the defendant/opposite party from claiming herself to be his lawfully married wife and also to restrain her from claiming the said child born from her as being the petitioner's own daughter.

(2.) While the actual marital status of the parties is a matter of controversy which cannot be decided on the basis of any scientific evidence since it is purely a question of fact, nevertheless paternity of the child in the circumstances can only be determined by way of the scientific test prayed for by the defendant. Indeed, paternity of a child in question would appear to be one of the vital issues in the suit irrespective of the fact whether or not a lawful marriage was in existence between the parents. For this purpose clearly the learned trial Judge was right in allowing the opposite party's prayer for DNA testing at least for the limited purpose of establishing her claim that her child was born out of her association with the plaintiff/petitioner.

(3.) The decision in the case of Dipanwita Roy vs. Ronobroto Roy., 2015 AIR(SC) 418 cited on behalf of the petitioner has only a marginal application in this case. It has to be understood that the issue sought to be covered by the proposed DNA test would pertain only to the question of determination of the biological paternity of the female child and in no way the same would have any bearing on the question whether or not the child is actually legitimate since the alleged marriage between the parties is an entirely different question for consideration.