VIJAY KUMAR GARGDEE CEE GHARIANWALA Vs. KAJALNICKY

JUDGEMENT

(1.) The present revision petition has been preferred by the defendant No.1-petitioner against the impugned order dtd. 21/12/2022 passed by the Principal Judge, Family Court, Mansa allowing a DNA test of the defendant No.1-petitioner alongwith the plaintiff-respondent No.1.

(2.) The brief facts relevant to the present lis are that the plaintiff- respondent No.1 filed a suit for declaration to the effect that she is the daughter of defendant No.1-petitioner and defendant No.2-respondent No.2 and hence defendant No.1-petitioner herein being the father of the plaintiff-respondent No.1 is bound to accept her as daughter. In the plaint it has been averred that defendant-respondent No.2 i.e. Rani was married to Kaka Singh and during the life time of Kaka Singh the defendant-respondent No.2 was in a live-in relationship with the defendant No.1-petitioner and out of the said relationship the plaintiff-respondent No.1 herein was born on 15/12/1996. Kaka Singh is stated to have died in September 2013 and the defendant No.1-petitioner and defendant-respondent No.2 continued to live together. It has further been averred that the plaintiff-respondent No.1 has always been treated as a daughter by the defendant No.1-petitioner as also by the society. It is further the averment in the plaint that in February 2015 relations between the defendant No.1-petitioner and defendant-respondent No.2 became strained and an application was filed by the defendant-respondent No.2 under Sec. 125 of the Code of Criminal Procedure, 1973 for maintenance. On 15/12/2014 the plaintiff-respondent No.1 attained majority and since the defendant No.1-petitioner was not ready to accept her as his daughter hence the cause of action arose. The present suit was filed on 28/10/2017. During the pendency of the suit, an application (Annexure P/3) for DNA test of the defendant No.1-petitioner was filed to prove the parentage of the plaintiff-respondent No.1. The application was not pressed and remained pending and only when the evidence of both the parties had been concluded the said application for DNA was taken up for decision by the Trial Court. The application was contested by the defendant No.1-petitioner and vide the impugned order dtd. 21/12/2022 the same was allowed by the Trial Court. Hence, the present revision petition.

(3.) Learned counsel for the defendant No.1-petitioner has contended that despite the entire evidence having been led not a single document has been filed in evidence which would even remotely show the plaintiff-respondent No.1 to being the daughter of the defendant No.1-petitioner. Learned counsel has referred to the application under Sec. 125 CrPC filed by the defendantrespondent No.2 against the defendant No.1-petitioner which was dismissed vide order dtd. 4/5/2018 (Annexure P/7). Learned counsel has also referred to a petition filed by the plaintiff-respondent No.1 for protection of her life and liberty before the District and Sessions Judge, Mansa (Annexure P/9) wherein the plaintiff-respondent No.1 has been shown as daughter of Kaka Singh. Learned counsel has further pointed out to the complaint (Annexure P/12) filed by the defendant-respondent No.2 under Sec. 323, 504, 506 IPC wherein it has been stated that the complainant therein started residing with one Gurwinder Singh son of Uggar Singh after the death of her husband Kaka Singh. Learned counsel has further referred to an affidavit (Annexure P/13) wherein defendant-respondent No.2 gave an affidavit before the Municipal Council mentioning therein the plaintiff-respondent No.1 as being one of the daughters of Kaka Singh. Learned counsel would further contend that on 16/1/2014 the plaintiff-respondent No.1, alongwith her sisters, had given an affidavit (Annexure P/14) when the brother of the plaintiff-respondent No.1 had applied for compassionate appointment in place of their father as Sweeper with the Municipal Council, Mansa stating therein that they had no objection if the brother, Satnam Singh, was given compassionate appointment. He has also relied on a self-declaration letter (Annexure P/15) given by the plaintiffrespondent No.1 wherein she has described herself as daughter of Kaka Singh and stated that she has no objection if the job is given to her brother, Satnam Singh, on compassionate grounds. Learned counsel has further contended that a person cannot be compelled to undergo a DNA test. In support of his arguments the learned counsel has relied upon judgments of the Supreme Court in Goutam Kundu Vs. State of West Bengal [1993 (2) RCR (Criminal) 497]; Ashok Kumar Vs. Raj Gupta and Ors. [(2022) 1 SCC 20] and judgments of this Court in Manjit Kaur Vs. Inderjit Singh and Ors. [2022 (4) RCR (Civil) 525]; Sukhdev Singh and Ors. Vs. Jaswinder Kaur [2022 (4) RCR (Civil) 341]; Mamta Vs. Parshant [CR-1673-2015 decided on 1/11/2017].