Leela vs Ram Jattan

K. Kannan, J.—The order under challenge is at the instance of the mother of the child whose custody, a person claiming to be a father sought for, through an application u/s 25 of the Guardian and Wards Act. The application came to be filed by the alleged father that the child was actually born to her in association with the petitioner. She was denying her status as a wife of the petitioner in the main petition and also the paternity of the child to the alleged husband. The power to compel a person to undertake a DNA test is not an automatic right but it is circumscribed by several limitations as found in decisions of the Hon''ble Supreme Court in Goutam Kundu Vs. State of West Bengal and another, ; Shri Banarsi Dass Vs. Mrs. Teeku Dutta and Another, and Sharda Vs. Dharmpal, . However, the Court below has exercised it discretion and has passed an order directing the DNA Test to be conduced from FSL, Madhuban, Haryana.

Learned Counsel for both the parties represent that they do not know whether the order had been carried out since there had been no order to stay. In a case for custody of a child by a person claiming to be the father and the mother of the child denies that there was even a marriage with the man claiming to be the father, application u/s 25 of the Guardian and Wards Act itself cannot be maintained. The proceedings under the Guardian and Wards Act can extend no more than providing for guardianship or for custody in matters of admitted relationships. If the relationship of the man claiming to be the father is denied as the husband of the mother of the child, the remedy shall be only by means of an independent suit for declaration of such status. As of now, even if the child''s paternity to the petitioner before the lower Court is established, he still cannot, obtain custody, since a putative father is not a lawful guardian. In case of illegitimate child, the another alone is the guardian.

If the order impugned is already complied with and the proceedings have come to a conclusion, the revision will be treated as in fructuous. On the other hand, if the proceedings are still pending before the Court and the order dated 22.03.2001 has not been given effect to it shall not be given effect to. The Trial Court is directed to take up the issue of maintainability of the petition u/s 25, in the face of a denial of the marriage itself as a preliminary issue before considering the entitlement of the person claiming to be the father for custody of the child.

The civil revision petition is disposed of in the above terms.