@JUDGMENTTAG-ORDER
A.S. Naidu, J.@mdashHeard Mr. Das, Learned Counsel for the petitioner and Mr. Dutta, Learned Counsel appearing for the opposite party.
2. The order dated 21.8.2003 passed by the Learned Civil Judge (Senior Division), Balasore in O.S. No. 725 of 1999-I allowing the petition filed by the wife and directing to hold DNA test at her cost is assailed in this writ petition.
3. Admittedly O.S. No. 725 of 1999-I was filed by the opposite party-wife, inter alia, praying to dissolve the marriage between the petitioner and the opposite party by a decree of divorce and for other consequential reliefs. The grounds on which the aforesaid relief is sought for is basically two fold i.e., cruelty and desertion by the husband. A written statement has been filed repudiating the averments made. In course of the proceeding a petition was filed by the petitioner-wife to direct DNA test of the blood of the husband and the child on the ground that the husband is disowning the child. Perusal of the entire pleadings clearly reveals that a case of disowning has not been made out by the plaintiff-wife. Law is well settled that DNA test should not be allowed on a matter of routine but it should be directed only in deserving cases. The Supreme Court in the case of
(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 in that the husband must establish non-access in order to dispel the presumption arising u/s 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.
4. Even otherwise directing to have a DNA test for asking would cause great prejudice to the child inasmuch as his/her parentage will became (sic.) questionable thereby putting the child in a ridiculous position. Section 112 of the Evidence Act raises a conclusive presumption:
Section 112 which raises a conclusive presumption about the paternity of the child born during the subsistence of a valid marriage, itself provides an outlet to the party who wants to escape from the rigour of that conclusiveness.
The said outlet is, if it can be shown that the parties had no access to each other at the time when the child could have been begotten the presumption could be rebutted. In other words, the party who wants to dislodge the conclusiveness has the burden to show a negative, not merely that he did not have the opportunity to approach his wife but that she too did not have the opportunity of approaching him during the relevant time. [See
5. Considering the facts and circumstances and in the touch stone of the principles of law enumerated in the preceding paragraph, this Court finds that in the case at hand a Decree for Divorce has been sought for only on the ground of cruelty and desertion by the husband and as such the question of parentage of the child is not required to be determined the petitioner-wife has to succeed only on the basis of the pleadings made by her. She cannot develop a new case in midstream of hearing. In the aforesaid scenario, this Court has no hesitation to set aside the portion of the impugned order dated 21.8.2003 directing to hold DNA test and I direct accordingly. The Trial Court shall decide the Ms strictly in consonance with the evidence adduced before it and other materials available.
