JAHIR Vs. RAJAN ALIAS RUJJAN AND OTHERS

JUDGEMENT

(1.) (Oral) - There is a written prayer for adjournment on behalf of the learned counsel for the petitioner, but the learned counsel for the respondents has objection that if it is to be adjourned, it be adjourned for a short date. I do not think it requires to be adjourned and I have called upon the counsel to argue the case to assess the merit involved and to deliver a judgment.

(2.) In a suit filed by the plaintiff seeking for a declaration that the release deed executed by the 1st defendant who he claims to be his father in favour of defendants No. 2 to 5 is not valid, the 1st defendant's contention was that the plaintiff was not his son and he also sought through an application that the plaintiff must submit himself to offer blood sample for carrying out a DNA test to ascertain the boy's paternity. The Court allowed the application and the petition is at the instance of the plaintiff/petitioner. The plaintiff's contention was that he is the son of defendant No.1 through a woman Amina, who was the 1st defendant's wife. The 1st defendant's contention was that his wife was one Chahati and the children who are defendants No.2 to 5 are born to him through Chahati. The matter that could be relevant in this case for the plaintiff to establish is that he was born during the marital relationship of 1st defendant Rajan to Amina and his own right will, therefore, depend on the proof which he will be able to adduce at the trial of whether Amina was wedded to the defendant or he had any livein relationship prior to marriage with the 1st defendant. If the defendant's contention were to be that he never had any sexual access to Amina and that, therefore, the plaintiff could not be his son, the matter will obtain appropriate result that would be necessary for adjudication in the suit. The application by the defendant to carry out the DNA must be therefore, understood and the relevance assessed in such a factual context.

(3.) It has become too fashionable and easy in these days to apply the Court for DNA examination by making a wrong inference that this test which is most scientific for determining paternity issue could be resorted to at the drop of a hat. The issue of a testimonial compulsion and the scope for applying for DNA was considered at length by the Supreme Court in Goutam Kundu Vs. State of W.B. (1993) 3 SCC 418 . The Court was considering the effect of Sec. 112 of the Evidence Act, which is a rule of evidence giving a conclusive proof of legitimacy of a child born through a valid marriage between the mother and any man within a period of 280 days. The Court was cautioning that the conclusive presumption available under Sec. 112 of the Evidence Act cannot be easily thwarted by resort to application for DNA and exposing a child to the social stigma of bastardization. This judgment came to be considered again at reasonable length in Sharda Vs. Dharmpal (2003) 4 SCC 493 , where the Court while even was allowing for a DNA test to be made, was setting out the boundaries within which the Court will operate and ensure that the test is made only to assure a legitimacy for a child and when there is a strong proof that there was n sexual access to the mother of the child whose DNA was sought to be apprised.