Rajasthan High Court

Rajesh Kumari W/O Rajendra Kumar vs Badrunnisha W/O Bundu ... on 2 August, 2024

Author: Anil Kumar Upman

Bench: Anil Kumar Upman

[2024:RJ-JP:33414]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

                 S.B. Civil Writ Petition No. 8744/2023

Rajesh Kumari W/o Rajendra Kumar, Resident Of Ward No 7
Village Gadarwada Noorji Tehsil Khanpur District Jhalawar (Raj)
                                                                    ----Petitioner
                                    Versus
1.       Badrunnisha W/o Bundu, Aged About 51 Years, Resident
         Of Ward No 8 Village Gadarwada Noorji Tehsil Khanpur
         District Jhalawar (Raj.)
2.       Chief Election Officer(Panchayat) (District Collector),
         Jhalawar Mini Sachivalay Kota Road Jhalawar Tehsil
         Jhalrapatan District Jhalawar (Raj.)
                                                                 ----Respondents

For Petitioner(s)         :     Mr. Rohit Khandelwal
For Respondent(s)         :     Mr. Prashant Sharma
                                Mr. Ravi Singh
                                Mr. Yashovardhan Agarwal



           HON'BLE MR. JUSTICE ANIL KUMAR UPMAN

                                     Order

02/08/2024

The instant writ petition has been filed by the petitioner/non-

applicant No.1 challenging the validity and legality of the order

dated 05.05.2023, passed by learned District & Sessions Judge,

Jhalawar in Civil Election Petition No.22/2020, directing DNA tests

of child (X) and his parents along with the petitioner and her

husband. Vide the impugned order dated 05.05.2023, the learned

District and Sessions Judge, Jhalawar has passed the following

directions:-

"5...................... it is ordered that the child Dhule Raj his so called mother father Mrs.Mamta and Chander Parkash and the non applicant/non petitioner No.1 Rakesh Kumari with her husband Rajender Kumar

[2024:RJ-JP:33414] (2 of 5) [CW-8744/2023]

Meena shall undergo the DNA test in presence of learned counsels of both the party, the Civil Clerk of this Court, the pathologist, Civil Surgeon of Government Hospital, Jhalawar on the date fixed by the superintended of hospital, Jhalawar. The DNA samples shall be taken in confidentially.

In the year 2020, the petitioner participated in panchayat

elections and after winning the same, she was elected as

Sarpanch, Gram Panchayat Gadarwada Noorji, Panchayat Samiti

Khanpur, Jhalawar. The respondent No.1 also participated in the

said election but she could not win the said election. Thereafter,

she filed election petition on various grounds before the learned

District and Sessions Court Jhalawar. One of the grounds,

challenging the election of the petitioner was that the petitioner

has declared that she has two children whereas she has one more

child and the petitioner has concealed this fact and gave wrong

information. The respondent No.1 also moved an application

before the learned trial court regarding DNA test of said child and

his parents along with the petitioner and her husband. The

learned trial court vide its order impugned dated 05.05.2023

allowed the application and directed for DNA tests, as mentioned

above.

After hearing submissions advanced by learned counsel for

the parties and perusing the material available on record, this

Court is of the considered opinion that the learned trial court has

gravely erred in passing such direction of conducting DNA test of

the persons (child and his parents) who are totally alien to the

election petition proceedings. The child and his parents has

[2024:RJ-JP:33414] (3 of 5) [CW-8744/2023]

nothing to do with the election petition proceedings. Such

directions are as good as infringement of right to privacy. The DNA

test of the child and his parents would prejudice not only their

privacy rights but it would also prejudicial to the future of the child

subjected to the test.

In case of Deepak Soni vs Anamika (S.B. Civil Writ

Petition No.1015/2023, decided on 26.05.2023), the

Coordinate Bench of this Court at Jodhpur, even in a matrimonial

dispute, declined to pass orders for conducting DNA paternity test

of a child. The Coordinate Bench observed that the child cannot be

used as a pawn in a divorce litigation, where either of the parents

want to get rid of the spouse as it would not only cause an

unfathomable misery upon the rights of the child, but also create

a permanent dent in his existence/Psyche. The Bench also

observed that the pain of winning or losing a battle of divorce

amongst the contesting spouses is much trivial when compared

with the rights of the child to have dignity and parenthood.

Thus, when in matrimonial dispute, such prayer can be

turned down, then what to talk about such thing in a case

pertaining to election matter. The Courts must refrain themselves

to pass such a direction for DNA paternity test especially when

such direction would be invasive to the physical autonomy of a

person. Such directions may be passed only in exception

circumstances. Merely because something is permissible under the

law cannot be directed as a matter of course to be performed. The

respondent-applicant cannot be allowed to take such recourse in

proving her case. She may produce any other evidence in support

of her case. The Hon'ble Supreme Court in the case of Inayath

[2024:RJ-JP:33414] (4 of 5) [CW-8744/2023]

Ali & Anr. versus State of Telangana & Anr. : 2022 LiveLaw

(SC) 869 has observed that the children are not the material

objects to be sent for forensic analysis. The Hon'ble Apex Court

has observed as under:-

"6. In the present proceeding, we are taking two factors into account which have been ignored by the Trial Court as also the Revisional Court. The Trial Court allowed the application of the respondent no.2 mechanically, on the premise that the DNA fingerprint test is permissible under the law. High Court has also proceeded on that basis, referring to different authorities including the case of Dipanwita Roy v. Ronobroto Roy [2015 (1) SCC 365]. The ratio of this case was also examined by the Coordinate Bench in the decision of Ashok Kumar (supra).

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:- "Birth during marriage, conclusive proof of legitimacy.--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."

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.

[2024:RJ-JP:33414] (5 of 5) [CW-8744/2023]

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 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 Court's direction.

10. We, accordingly, allow the appeal and set aside the judgment of the High Court. Consequentially, the order of the Trial Court passed on 17th October, 2014 in Crl.M.P. No. 92 of 2014 arising out of S.C.No. 70/2012 shall also stand set aside."

In view of the aforesaid facts and circumstances of the case,

this Court is of the view that writ petition deserves acceptance.

Accordingly, the writ petition is allowed. The impugned order

dated 05.05.2023 passed by learned District & Sessions Judge,

Jhalawar in Election Petition No.22/2020 is quashed and set aside.

Pending application (s), if any, also stands disposed of. There is no

order as to costs.

(ANIL KUMAR UPMAN),J

LALIT MOHAN /232