RAJLI Vs. KAPOOR SINGH

JUDGEMENT

(1.) INSTANT revision petition has been filed under Article 227 of the Constitution of India for setting aside the order dated 11.08.2012 (Annexure P/1) passed by learned Civil Judge (Junior Division) Charkhi Dadri vide which the petitioner has been directed to undergo DNA test. The parties in this petition are hereinafter referred as they are arrayed in the suit i.e. petitioner as defendant No. 2 and respondent No. 1 as the plaintiff, other defendants have not appeared to contest the present revision petition.

(2.) BRIEF facts of the case are that respondent No. 1 -plaintiff (Kapoor Singh) filed a suit for declaration against the defendants inter alia pleading therein that Gopal, Gabdu and Rama Nand (died in the year 1942) sons of Nathu were three brothers Gabdu was married with Ghoghn and Rama Nand was married with Rajli, petitioner defendant No. 2 Partap respondent No. 2 defendant No. 1 took birth from the womb of Rajh petitioner defendant No. 2 and is not the son of Gabdu and Ghoghn In R S A No. 3282 of 2009, decided on 28.07.2011 it has been held that Rajh @ Rajjo never contracted kareva marriage with Gabdu (brother of deceased husband of petitioner defendant No. 2), so Partap cannot claim himself to be the son of Gabdu As such, mutation entered on 02.10.1956 and attested on 03.08.1957 whereby 1/4th share of the property of Gabdu was given to Partap is illegal, null and void It is also mentioned in the plaint that Gabdu died on 08.02.1956 leaving behind Bakhtawar Maidhan and Rohtash as his only male heirs whereas his properly has also devolved upon defendant No. 1 Partap by showing Partap to be the son of Gabdu Respondent No. 2 defendant No. 1 filed separate written statement alleging that he is son of Gabdu and Ghoghn and not the son of Rajli @ Rajjo Similar stand was taken by defendant No. 2 Some of the defendants were proceeded against ex -parte and did not file written statement Replication was also filed During the pendency of the proceedings before the trial Court, application dated 02.04.2012 was filed by respondent No. 1 plaintiff for conducting DNA test of Partap and Rajli i.e. defendant Nos. 1 and 2 respectively The trial Court after considering the submissions of the parties allowed the application dated 02.04.2012 and directed for conducting DNA test of Partap and Rajli defendant Nos. 1 and 2 respectively Hence, this writ petition

(3.) LEARNED counsel for the petitioner vehemently contended that the plaintiff has to stand on his own legs to prove his case and cannot be allowed to use machinery of Court to bring positive evidence in his favour especially the evidence in the shape of scientific investigation i.e. DNA Test Learned counsel further contended that Court is required to consider the presumption of law under Section 112 of the Indian Evidence Act, 1872 which clearly says birth during marriage is conclusive proof of legitimacy There is no difference between the conclusive proof and conclusive evidence. Learned counsel further vehemently contended that DNA test cannot be ordered in a routine manner and made reference to a judgment of Hon'ble Supreme Court in Bhabani Prasad Jena v. Convenor Secretary Orissa State Commission for Women and another, : (2010) 8 S.C.C. 633. Learned counsel further cited a judgment of Hon'ble Supreme Court in Sharda v. Dharmpal, : (2003) 4 Supreme Court Cases 493 to contend that DNA test affects the right to privacy and personal liberty. The presumption raised under Section 112 of the Indian Evidence Act can only be displaced by a strong preponderance of evidence and not by a mere balance of probabilities. There is no provision in the Code of Civil Procedure whereunder the DNA test may be ordered. Learned counsel further relied upon judgments of Hon'ble Delhi High Court in FAO (OS) No. 44 of 2011, Narayan Dutt Tiwari v. Rohit Shekhar and others, decided on 07.02.2011 as well as FAO (OS) No. 547 of 2011, Rohit Shekhar v. Narayan Dutt. Tiwari and another; decided on 27.04.2012 and Hon'ble Madras High Court in C.R.P. (PD) No. 1528 of 2008, M Karthika v. R. Manohar, decided on 23.04.2009. By referring to the above said citations, learned counsel vehemently contended that roving inquiry by way of blood test cannot be made. Firstly, prima facie case is required to be established that there was no relationship of Gabdu with Rajli. In addition to above, learned counsel for the petitioner also made reference to a judgment of this Court in Harjinder Kaur v. State of Punjab and others, : 2013 (2) R.C.R. (Criminal) 146.