Madhya Pradesh High Court

Smt. Sunita Patel vs Rajkali on 2 January, 2023

Author: Maninder S. Bhatti

1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE MANINDER S. BHATTI
ON THE 2 nd OF JANUARY, 2023
MISC. PETITION No. 5880 of 2022

BETWEEN:-
1. SMT. SUNITA PATEL W/O RAJESH KUMAR PATEL,
AGED ABOUT 35 YEARS, OCCUPATION: SERVICE /
HOUSE WIFE VILLAGE PACHOKHAR POLICE
STATION AND TEHSIL CHURHAT DISTRICT SIDHI
(MADHYA PRADESH)

2. GOURAV PATEL @ PRAJJAVAL PATEL S/O
SIYARAM PATEL, AGED ABOUT 12 YEARS,
OCCUPATION: STUDENT R/O VILLAGE
PACHOKHAR P.S. AND TEHSIL CHURHAT
DISTRICT SIDHI (MADHYA PRADESH)

3. KU. VANSHIKA PATEL D/O RAJESH KUMAR
PATEL, AGED ABOUT 5 YEARS, OCCUPATION:
MINOR THROUGH NATURAL GUARDIAN
MOTHER SMT. SUNITA PATEL W/O RAJESH
KUMAR PATEL R/O VILLAGE PACHOKHAR P.S.
AND TEHSIL CHURHAT DISTRICT SIDHI
(MADHYA PRADESH)

.....PETITIONER
(BY SHRI NEERAJ S. CHAUHAN, ADVOCATE)

AND
1. RAJKALI W/O RADHIKA PATEL, AGED ABOUT 58
YE A R S , OCCUPATION: HOUSEWIFE VILLAGE
PACHOKHAR TEHSIL AND POLICE STATION
CHURHAT DISTRICT SIDHI (MADHYA PRADESH)

2. MUNNALAL PATEL S/O RADHIKA PATEL, AGED
ABOUT 47 YEARS, OCCUPATION: FARMER R/O
VILLAGE PACHOKHAR TEHSIL AND P.S.
CHURHAT DISTRICT SIDHI (MADHYA PRADESH)

3. RAJESH PATEL S/O RADHIKA PATEL, AGED
ABOUT 47 YEARS, OCCUPATION: FARMER R/O
VILLAGE PACHOKHAR TEHSIL AND P.S.
Signature Not Verified
CHURHAT DISTRICT SIDHI (MADHYA PRADESH)
Signed by: SHUBHAM
THAKKER
Signing time: 1/6/2023
4:05:14 PM
2

4. LAL BAHADUR PATEL S/O RAMSWAROOP PATEL,
AGED ABOUT 48 YEARS, OCCUPATION: FARMER
R/O VILLAGE PACHOKHAR TEHSIL AND P.S.
CHURHAT DISTRICT SIDHI (MADHYA PRADESH)

5. RAMKRISHNA S/O RAMSWAROOP PATEL, AGED
ABOUT 45 YEARS, OCCUPATION: FARMER R/O
VILLAGE PACHOKHAR TEHSIL AND P.S.
CHURHAT DISTRICT SIDHI (MADHYA PRADESH)

6. ASHOK KUMAR S/O RAMSWAROOP PATEL, AGED
ABOUT 41 YEARS, OCCUPATION: FARMER R/O
VILLAGE PACHOKHAR TEHSIL AND P.S.
CHURHAT DISTRICT SIDHI (MADHYA PRADESH)

7. RAMDARAS KUMAR S/O RAMSWAROOP PATEL,
AGED ABOUT 38 YEARS, OCCUPATION: FARMER
R/O VILLAGE PACHOKHAR TEHSIL AND P.S.
CHURHAT DISTRICT SIDHI (MADHYA PRADESH)

8. MOTILAL PATEL S/O VIDHYA PRASAD PATEL,
AGED ABOUT 46 YEARS, OCCUPATION: FARMER
R/O VILLAGE PACHOKHAR TEHSIL AND P.S.
CHURHAT DISTRICT SIDHI (MADHYA PRADESH)

9. JAWAHARLAL S/O VIDHYA PRASAD PATEL, AGED
ABOUT 43 YEARS, OCCUPATION: FARMER R/O
VILLAGE PACHOKHAR TEHSIL AND P.S.
CHURHAT DISTRICT SIDHI (MADHYA PRADESH)

10. JAGAT KUMAR PATEL S/O VIDHYA PRASAD
PATEL, AGED ABOUT 40 YEARS, OCCUPATION:
FARMER R/O VILLAGE PACHOKHAR TEHSIL AND
P.S. CHURHAT DISTRICT SIDHI (MADHYA
PRADESH)

11. RAMNARESH S/O VIDHYA PRASAD PATEL, AGED
ABOUT 37 YEARS, OCCUPATION: FARMER R/O
VILLAGE PACHOKHAR TEHSIL AND P.S.
CHURHAT DISTRICT SIDHI (MADHYA PRADESH)

12. THE STATE OF M.P. THROUGH THE COLLECTOR
SIDHI DISTRICT SIDHI (MADHYA PRADESH)

.....RESPONDENTS
(NONE FOR THE RESPONDENTS )

This petition coming on for admission this day, th e court passed the
Signature Not Verified
Signed by: SHUBHAM
THAKKER
Signing time: 1/6/2023
4:05:14 PM
3
following:
ORDER

Learned counsel for petitioner contends that in the present case vide impugned order dated 14.11.2022, an application moved by the present petitioner under Section 112 of Indian Evidence Act, 1872 has been rejected by the trial Court.

It is contended by counsel for petitioner that in the present case the suit has been filed by the present petitioner seeking declaration, permanent injunction as well as partition. It is contended by counsel that in the plaint there are specific averment in paragraph 6 of the plaint that the petitioner No.3 is a daughter of respondent No.3/defendant No.3 - Rajesh Patel. It is contended by counsel that as the said fact was disputed by the defendant by filing a written statement, an application under Section 112 of Indian Evidence Act, 1872 was filed by the petitioner and a prayer was made for carrying out DNA Test of plaintiff No.3 as well as defendant No.3 which has been declined by the Court. It is contended by counsel that in the present case, looking to the issue involved in the matter, the trial Court ought to have allowed the application but the same has been declined. It is contended by counsel that the Apex Court in the case of Rohit Shekhar Vs. Narayan Dutt Tiwari & Anr. reported in 2012 (12) SCC 554 has considered the relevancy of DNA testing and thus, in view of the law laid down by the Apex Court in the present case, the application of the

petitioner ought to have been allowed.

It is further contended by counsel that even in the light of Division Bench decision of Delhi High Court in the same case of Rohit Shekhar (supra), the application filed by the petitioner under Section 112 could not have been rejected.

Signature Not Verified Signed by: SHUBHAM THAKKER Signing time: 1/6/2023 4:05:14 PM

Heard the submission advanced on behalf of the petitioner. The Court below while taking into consideration, the petitioner's application also referred to the decision of the Apex Court in the case of Goutam Kundu Vs. State of West Bengal reported in (1993) 3 SCC 418 and also in the case of Inayath Ali & Anr. Vs. State of Telangana & Anr. 2022 LiveLaw (SC) 869 and accordingly in view of the law laid down by the Apex Court, the Court rejected the application. The Apex Court while dealing with the scope of Section 112 of Indian Evidence Act, 1872 held in Inayath Ali (supra) as follows :

7. The first factor, which, in our opinion, is of significance, is that in the judgment under appeal, blood sampling of the children was directed, who were not parties to the proceeding nor were their status required to be examined in the complaint of the respondent no.2. This raised doubt on their legitimacy of being borne to legally wedded parents and such directions, if carried out, have the potential of exposing them to inheritance related complication. Section 112 of the Evidence Act, also gives a protective cover from allegations of this nature. The said provision stipulates:- "Â€ÂœBirth during marriage, conclusive proof of legitimacy - .Â€Â"The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten."Â€Â

8. In our opinion, the Trial Court as also the Revisional Court had completely ignored the said factor and proceeded as if the children were material objects who could be sent for forensic analysis . The other factor, in our opinion, which was ignored by the said two Courts is that the paternity of the children was not in question in the subject-proceeding.

9. The substance of the complaint was not related to paternity of the children of the respondent no.2 but the question was whether the offences under the aforesaid provisions of the 1860 Code was committed against her or not. The paternity of the two daughters of the respondent no.2 is a collateral factor to the allegations on which the criminal case is otherwise founded. On the basis of the available materials, in our opinion, the case out of which this proceeding Signature Not Verified Signed by: SHUBHAM THAKKER Signing time: 1/6/2023 4:05:14 PM

arises could be decided without considering the DNA test report. This was the reasoning which was considered by the Coordinate Bench in the case of Ashok Kumar (supra), though that was a civil suit. 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 would be invasive to the physical autonomy of a person. The consequence thereof would not be confined to the question as to whether such an order would result in testimonial compulsion, but encompasses right to privacy as well. Such direction would violate the privacy right of the persons subjected to such tests and could be prejudicial to the future of the two children who were also sought to be brought within the ambit of the Trial CourtÃ¢Â€Â™s direction.

In view of the aforesaid, it is clear that in a routine course, the conduct of DNA Test cannot be ordered. It is also important that while passing such an order, a person concerned is subjected to invasion of his physical autonomy and also has direct bearing on the right to privacy of a person. The Apex Court also considered the aspect that the DNA Test may also out to be prejudicial to the future of the children who are subjected to the same. In the present case undisputedly, the plaintiff No.3 is a minor and therefore, the application filed by the petitioner under Section 112 of Indian Evidence Act, 1872 has been rightly rejected by the trial Court. Accordingly, the present petition having no substance stands dismissed. No order as to costs.

(MANINDER S. BHATTI) JUDGE Shub

Signature Not Verified Signed by: SHUBHAM THAKKER Signing time: 1/6/2023 4:05:14 PM