Chattisgarh High Court

Tej Kumar vs Padmalochan on 4 March, 2025

                                    1




Digitally
signed by                                           2025:CGHC:10541
RAMESH
KUMAR VATTI                                                        NAFR

          HIGH COURT OF CHHATTISGARH AT BILASPUR

                        WP(227) No. 586 of 2022
•   Tej Kumar S/o Late Raghuram Sahu Aged About 55 Years R/o Village
    Jamjuda, Police Station Sankra, Tahsil Pithoura, District Mahasamund,
    Chhattisgarh, Mo. No. 7247025225
                                                               ... Petitioner

                                 Versus

1. Padmalochan S/o Tej Kumar Sahu Aged About 31 Years R/o Village
   Jamjuda, Police Station Sankra, Tahsil Pithoura, District :
   Mahasamund, Chhattisgarh
    ...Plaintiff/Respondent No.1

2. Nan Bai W/o Late Raghuram Sahu Aged About 75 Years R/o Village Jamjuda, Police Station Sankra, Tahsil Pithoura, District :

Mahasamund, Chhattisgarh

3. Preetam Lal S/o Tej Kumar Sahu Aged About 28 Years R/o Village Jamjuda, Police Station Sankra, Tahsil Pithoura, District :

Mahasamund, Chhattisgarh

4. Manoj S/o Tej Kumar Sahu Aged About 27 Years R/o Village Jamjuda, Police Station Sankra, Tahsil Pithoura, District : Mahasamund, Chhattisgarh

5. Tarendra @ Narendra S/o Tej Kumar Sahu Aged About 26 Years R/o Village Jamjuda, Police Station Sankra, Tahsil Pithoura, District :

Mahasamund, Chhattisgarh

6. Ku. Sachi Sahu D/o Raghuram Sahu Aged About 42 Years R/o Village Jamjuda, Police Station Sankra, Tahsil Pithoura, District Mahasamund Chhattisgarh. At Present R/o LIC Colony Mova Raipur, Tahsil And District Raipur, Chhattisgarh.

7. Smt. Prabha Bai D/o Tej Kumar Sahu Aged About 51 Years R/o Village Jamjuda, Police Station Sankra, Tahsil - Pithoura, District :

Mahasamund, Chhattisgarh

8. State Of Chhattisgarh Through Collector Mahasamund, District :

Mahasamund, Chhattisgarh

... Respondents

For Petitioner : Mr. Ratnesh Kumar Agrawal with Ms. Prabha Sharma, Advocates

For Respondent No. 1 : Mr. Surfaraj Khan, Advocate

For Respondent No. 8/State : Ms. Neelima Singh Thakur, Panel Lawyer

Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board

04/03/2025

1. Defendant No. 1/petitioner has challenged the order dated 16.08.2022

passed by the learned Additional District Judge (FTC), Mahasamund,

in Civil Appeal No. 01/2018, wherein and whereby an application under

Section 151 of CPC moved by the plaintiff/respondent No.1 to conduct

DNA test was allowed.

2. The facts of the present case are as under:-

Respondent No. 1/plaintiff instituted a suit for declaration of title

and recovery of possession in respect of the suit house and lands

shown in Schedules "A" and "B" on the ground that he is the son of

petitioner/defendant No. 1 and Smt. Prabha Bai - respondent/

defendant No. 7. It was further pleaded that the petitioner and

respondent No. 7 were married according to the custom/Choodi

Marriage. The petitioner/defendant No. 1 filed a written statement and

denied the plaint averments. The petitioner had taken a specific plea

that he is not the biological father of the plaintiff and respondent No. 7

is not his wife.

The learned trial Court framed issues, the parties led evidence

and vide judgment and decree dated 28.11.2017, the suit filed by the

plaintiff was dismissed. The plaintiff/respondent No. 1 preferred a first

appeal before the learned Additional District Judge (FTC),

Mahasamund which was registered as Civil Appeal No. 01/2018.

During the pendency of the appeal, the plaintiff moved an application

under Section 151 of CPC seeking a direction to conduct a DNA test to

ascertain the paternity of the plaintiff with the petitioner. The

petitioner/defendant No. 1 filed a reply to the said application and

stated that he cannot be compelled to go for the DNA test as such the

direction or order infringes his right to privacy.

The learned first Appellate Court vide order dated 16.08.2022

allowed the application on the ground that the issue of paternity of the

plaintiff is involved. The petitioner/defendant No.1 has filed this petition

assailing the order dated 16.08.2022.

3. Mr. Ratnesh Kumar Agrawal, learned counsel appearing for the

petitioner/defendant No. 1 would argue that the petitioner cannot be

compelled to go for the DNA test. He would contend that a specific plea

was taken by the petitioner in the written statement before the trial

Court that he is not a biological father of the plaintiff, but no application

was moved by the plaintiff for the DNA test. He would further contend

that the application to conduct the DNA test has been moved at the

appellate stage with the intent to harass the petitioner and the same

has been allowed by the learned first Appellate Court. He would further

submit that the direction issued by the first Appellate Court is contrary

to the law laid down by the Hon'ble Supreme Court in the matter of

Aparna Ajinkya Firodia Vs. Ajinkya Arun Firodia, reported in (2024)

7 SCC 773. He would also submit that the plaintiff failed to establish

the fact that there was a marriage between defendant No. 1 and

defendant No. 7. He would pray to set aside the order passed by the

first Appellate Court dated 16.08.2022.

4. Mr. Surfaraj Khan, learned counsel appearing for the

plaintiff/respondent No. 1 would oppose the submissions made by Mr.

Ratnesh Kumar Agrawal. He would submit that as the

petitioner/defendant No. 1 is not ready to comply with the direction

issued by the learned first Appellate Court for DNA test, the learned

Court below should draw an adverse inference against the petitioner

according to the provisions of Section 114(h) of the Evidence Act. In

support thereof, he placed reliance on the judgment passed by the

Hon'ble Supreme Court in the matter of Dipanwita Roy Vs.

Ronobroto Roy, (2015) 1 SCC 365. He also placed reliance on the

judgment passed by the Hon'ble Supreme Court in the matter of

Aparna Ajinkya Firodia (supra). He would also submit that the

petitioner is the biological father of respondent No.1/plaintiff. He would

contend that the petitioner disputed and denied this fact in the written

statement, therefore, an application was moved by the plaintiff before

the learned first Appellate Court. He would further contend that the

plaintiff is deprived of his right over the suit property as well as the

status of a son and without conducting the DNA test, the status of the

plaintiff cannot be ascertained, therefore, the learned first Appellate

Court rightly allowed the application moved by the plaintiff. He would

state that the petition deserves to be dismissed.

5. Ms. Neelima Singh Thakur, learned Panel Lawyer appearing for the

State/respondent No. 8 would support the order dated 16.08.2022

passed by the first Appellate Court.

6. I have heard learned counsel for the parties and perused documents

available on the record.

7. A perusal of the order passed by the learned first Appellate Court would

show that defendant No.1/petitioner disputed and denied the fact that

he is a biological father of the plaintiff/respondent No. 1. A suit was filed

by the plaintiff claiming therein right over 1/3rd share in the ancestral

property on the ground that the petitioner is his father. The learned First

Appellate Court after appreciating the contentions raised by both

parties allowed the application vide order dated 16.08.2022.

8. Mr. Ratnesh Kumar Agrawal, learned counsel for the petitioner would

submit that the petitioner is not ready to go for the DNA test.

9. In the matter of Narayan Dutt Tiwari Vs. Rohit Shekhar and Another,

reported in (2012) 12 SCC 554, the Hon'ble Supreme Court held that

the adverse inference may be drawn on refusal to comply with a

direction for medical examination. The relevant paras- 54 and 55 are

reproduced herein below:-

"54. We also find the drawing of adverse inference from refusal to comply with the direction for medical examination to be not sufficient to satiate the need found by the Court. A legal fiction under Section 114 of the Evidence Act, as adverse inference is, is not a reality but which the said provision requires the Court to accept as reality. The Court is not bound to or obliged to draw such adverse inferences (see Emperor v. Sibnath Banerjee, AIR 1943 FC 75, Dhanvantrai Balwantrai Desai v. State of Maharashtra, AIR 1964 SC 575 and Fakir Mohd. v. Sita Ram, (2002) 1 SCC 741).

55. A presumption is not in itself evidence but only makes a prima facie case for parties in whose favour it exists (see Sodhi Transport Co. v. State of U.P., (1986) 2 SCC 486). As far back as in Damisetti Ramchendrudu v. Damisetti Janakiramanna, AIR 1920 PC 84 it was held that presumption cannot displace adequate evidence. The Supreme Court also in Mohanlal Shamji Soni v. Union of India, 1991 Supp (1) SCC 271 held that it is the rule of law in evidence that the best available evidence should be brought before the court to prove a fact or the points in issue and the court ought to take an active role in the proceedings in finding the truth and administering justice."

10. In the matter of Aparna Ajinkya Firodia (supra), the Hon'ble Supreme

Court allowed the appeal and set aside the order whereby the

application for the DNA test was allowed. The relevant para- 105 is

reproduced herein below:-

"105. Therefore, I concur wholeheartedly with my learned Sister that the Family Court as well as the High Court were wrong in allowing the application of the respondent for subjecting the child to DNA test.

Therefore, the appeal deserves to be allowed and accordingly it is allowed. However, this shall not preclude the respondent husband from leading any other evidence to establish the allegations made by him against the appellant in the petition for divorce."

Aparna Ajinkya Firodia (supra) was a case where the marriage

between the parties was not in dispute, but in the present case, the

petitioner has disputed the factum of marriage. Further, the petitioner

has refused to go for the DNA test, therefore an adverse inference may

be drawn against the petitioner according to the provisions of Section

114(h) of the Evidence Act.

11. The Hon'ble Supreme Court in the matter of Aparna Ajinkya Firodia

(supra), in para- 97 held as under:-

"97. Coming to the presumption under Section 114(h), the contention of the respondent is obviously misplaced. An adverse inference, in law, can be drawn only against the person who refuses to answer a question. In the case on hand, the appellant has a dual role to play, namely, that of the respondent's wife and that of Master Arjun's mother. If the appellant does or refuses to do something, for the purpose of deriving a benefit to herself, an adverse inference can be drawn against her. But in her capacity as a mother and natural guardian if the appellant refuses to subject the child to DNA test for the protection of the interests and welfare of the child, no adverse inference of adultery can be drawn against her. By refusing to subject the child to DNA test, she is actually protecting the best interests of the child. For protecting the best interests of the child, the appellant

wife may be rewarded, but not punished with an adverse inference. By taking recourse to Section 114(h), the respondent cannot throw the appellant to a catch-22 situation."

12. As the marriage between the petitioner and respondent No. 7 is in

dispute, the legitimacy of the child born is also in dispute and the

plaintiff/child himself approached the Court to prove the fact that the

petitioner is his biological father and that was the reason the learned

first Appellate Court allowed the application.

13. In the matter of Bhabani Prasad Jena Vs. Orissa State Commission

for Women, reported in (2010) 8 SCC 633, the Hon'ble Supreme Court

held that in a matter where the paternity of a child is in issue before the

Court, the use of DNA test is an extremely delicate and sensitive

aspect. One view is that when modern science gives the means of

ascertaining the paternity of a child, there should not be any hesitation

to use those means whenever the occasion requires.