Jharkhand High Court
Dr. Manoj Kumar vs The State Of Jharkhand on 25 April, 2023
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 1111 of 2014
Dr. Manoj Kumar ...... Petitioners
Versus
1.The State of Jharkhand
2.Moumita Das @ Devi
3. Shiwani Kumari ...... Opp. Parties
CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner : Mr. Rohit, Advocate
For the State : Mr. Jitendra Pandey, A.P.P.
For the O.P. No. 2 & 3 : Mr. Vijay Kumar Roy, Advocate
...............
18/Dated: 25/04/2023
Heard Mr. Rohit, learned counsel for the petitioner, Mr.
Jitendra Pandey, learned counsel for the State and Mr. Vijay Kumar Roy,
learned counsel for the O.P. Nos. 2 and 3.
2. This petition has been filed for quashing of the order dated
04.04.2014 passed in Maintenance Case No. 318 of 2012 whereby the learned
Principal Judge, Family Court, Giridih has allowed the petition dated 05.08.2013
filed by the O.P. No. 2 for DNA test of the petitioner and O.P. No. 3 in order to
allegedly prove the legality and genuineness of the birth of O.P. No. 3 from the
wedlock of the petitioner and O.P. No.2, pending in the Court of learned
Principal Judge, Family Court, Giridih.
3. Mr. Rohit, learned counsel for the petitioner submits that O.P. No.
2 had filed the Maintenance Case No. 318 of 2012 on 16.10.2012 under
section 125 of Cr.P.C. stating therein that she is married with the petitioner on
15.04.2011 according to Hindu religious custom and out of the said wedlock
she had given birth to the O.P. No.3 on 12.07.2012. He submits that the
petitioner had filed his show cause in Maintenance Case No. 318 of 2012
stating therein that the petition under section 125 of Cr.P.C. filed by the O.P.
No. 2 is not maintainable as the petitioner had never been married to the O.P.
No. 2 on the alleged date and he also falsified the allegation that out of the
alleged wedlock O.P. No. 3 had born on 12.07.2012. He submits that the O.P.
No. 2 filed a petition for DNA test of the petitioner which was allowed by the
impugned order. He further submits that DNA test is required to be directed to
be conducted in proper case if prima facie case is made out. According to him
the marriage is disputed and that is why the direction of DNA test is against the
mandate of law.
4. On the other hand, Mr. Vijay Kumar Roy, learned counsel for the O.P.
Nos. 2 and 3 submits that out of the wedlock of petitioner and O.P. No.2, the
O.P. No. 3 has born and O.P. No. 2 is the legally wedded wife of the petitioner.
He submits that in view of dispute, learned court has rightly passed the order
for DNA test. To buttress his argument, he relied in the case of "Narayan
Dutt Tiwari V. Rohit Shekhar & Anr." (2012) 12 SCC 554.
5. Mr. Jitendra Pandey, learned counsel for the State supported the
finding of the learned trial court and submits that this Court may not interfere
with the said order.
6. In view of above submission of the learned counsel for the parties,
the Court has gone through the materials on record and finds that admittedly
there is dispute of marriage between the petitioner and O.P. No. 2. The
marriage is in dispute that is first required to be proved by way of adducing
evidence and once that is proved then one can pray before the court if the
legitimacy of the O.P. No. 3 is denied for DNA test. The Hon'ble Supreme Court
in several cases has held that medical evidence is not always final but medical
evidence plays the role of secondary evidence.
7. The leading decision on the subject on the present case is " Goutam
Kundu V. State of West Bengal (1993) 3 SCC 418) where their Lordships
of the Supreme Court held that no person can be compelled to give sample of
blood for analysis against his or her will and no adverse inference can be drawn
for such refusal. At paragraph 26 of the judgment, Their Lordships held as
follows
"From the above discussion it emerges-- (1) that Courts in
India cannot order blood test as a matter of course;
(2) wherever applications are made for such prayers in order to
have roving inquiry, the prayer for blood test cannot be
entertained;
(3) there must be a strong prima facie case is that the husband
must establish non-access in order to dispel the presumption
arising under section 112 of the Evidence Act;
(4) the Court must carefully examine as to what would be the
consequence of ordering the blood test; whether it will have the
effect of branding a child as a bastard and the mother as an
unchaste woman;
(5) no one can be compelled to give sample of blood for analysis."
8. The above decision was followed in the case of "Banarasi Dass V.
Teeku Dutta" (2005) 4 SCC 449 where Their Lordships of the Supreme
Court held again that the DNA test is not to be directed as a matter of routine
and only in deserving cases such a direction can be issued.
9. Recently, the Hon'ble Supreme Court in Ashok Kumar v. Raj Gupta;
[(2022) 1 SCC 20] held that sparing use of DNS finger test was opined and
that was a case arising out of suit for ownership of certain property and the
defendant has raised the plea that the plaintiff was not the son of the original
owner thereof for whom the plaintiff has derived a title and in that case also,
the plea was made for conducting a DNA test, wherein, at paragraph 15, it has
been held as under:
"15. DNA is unique to an individual (barring twins) and
can be used to identify a person's identity, trace familial
linkages or even reveal sensitive health information. Whether a
person can be compelled to provide a sample for DNA in such
matters can also be answered considering the test of
proportionality laid down in the unanimous decision of this
Court in K.S. Puttaswamy (Aadhaar-5 J.) v. Union of India [K.S.
Puttaswamy (Aadhaar-5 J.) v. Union of India, (2019) 1 SCC 1],
wherein the right to privacy has been declared a constitutionally
protected right in India. The Court should therefore examine
the proportionality of the legitimate aims being pursued i.e.
whether the same are not arbitrary or discriminatory, whether
they may have an adverse impact on the person and that they
justify the encroachment upon the privacy and personal
autonomy of the person, being subjected to the DNA test."
10. Thus, merely because something is permissible under the law,
cannot be directed as a matter of course to be performed particularly when a
direction to that effect may encroach privacy and physical autonomy of a
person. Such direction would violate the privacy right of a person subjected to
such test.
11. In the case in hand the marriage of the petitioner and O.P. No. 2 is
itself in cloud and on that pretext of marriage, the paternity of the O.P. No. 3
is being fastened upon the petitioner, unless the marriage is proved, the stage
of DNA test has not come. In the case of " Narayan Dutt Tiwari" (supra)
relied by Mr. Roy, in that case suit was filed for declaration of natural son of
Narayan Dutt Tiwari and in that case cogent reason has been made out for
such test. The fact of that case is otherwise and not helping the O.P. Nos. 2 and
3.
12. In view of above facts, reasons and analysis, the order dated
04.04.2014 passed in Maintenance Case No. 318 of 2012 is set aside.
13. The matter is remitted back to the learned court to proceed with
the case in accordance with law.
14. This petition stands disposed of. Pending I.A, if any, stands
disposed of. Interim order is vacated.
(Sanjay Kumar Dwivedi, J.)
Satyarthi/
