Vitthal S/O Rambhau Kulat vs Mathura W/O Bhaurao Wankhede
2002 Latest Caselaw 1337 Bom

JUDGMENT

R.S. Mohite, J.

1. Heard Shri Ghare, Advocate for the petitioner and Shri Thakkar, Advocate for respondent No.2 - Caveator.

2.Rule. By consent, rule is made returnable forthwith.

3.By the impugned order dated 8.8.1996, the trial Court had rejected an interlocutory application filed by the petitioner - plaintiff for subjecting the defendants to a D.N.A. test. Defendant No.1 is the mother of defendant No.2 and the contention of the petitioner is that he is not the father of defendant No.2. It is the contention of defendant No.1 that defendant No.2 is illegitimate child of the plaintiff.

4. The apex Court in the case of Goutam Kundu Vs. State of West Bengal, , held that the Courts in India cannot order blood test as a matter of course. It is further held by the apex Court that no one can be compelled to give sample of blood for analysis. The judgment of the apex Court arose out of the proceedings under Section 125 of the Criminal Procedure Code and the father against whom the said proceedings had been filed had challenged the paternity of the child. Undoubtedly, in the aforesaid case, the marriage in question was not disputed.

5.In my opinion, the question as to whether the mother is married or not married is not relevant or germane to decide as to whether the party in the suit can be compelled to give sample of blood for the purposes of analysis. The two issues are totally different and distinct. The apex Court held that no one can be compelled to give sample of blood for analysis. It would obviously be open for the plaintiff to give notice to the other side calling upon them to get the D.N.A. tested and to produce a result before a Court. If such test is not conducted inspite of notice, it would obviously be open for the plaintiff to urge that an adverse inference may be drawn. If such a contention is raised, the same would obviously be decided on the rules of law relating to drawing of an adverse inference.

6.In this view of the matter, writ petition is rejected. Rule is discharged. There shall be no order as to costs.