Uma Alias Kela Rani Verma vs Tulsi Ram And Two Others

Alok Kumar Verma, J

This Civil Revision has been preferred under Section 115 of the Code of Civil Procedure, 1908, against the order dated 05.11.2020, passed by the Civil Judge (Senior Division), Roorkee, District Haridwar in Original Suit No.125 of 2019, “Smt. Uma alias Kela Rani Verma vs. Tulsi Ram and Others”, whereby, the application of the respondent no.1-defendant no.1, for conducting the D.N.A. test of the revisionist-plaintiff, has been allowed in a suit, filed by the revisionist-plaintiff, for partition of 1/2 share and declaration of a gift deed as void, which was alleged to have been executed by the respondent no.1 in favour of the respondent nos. 2 and 3.

The factual matrix that may be relevant for considering the challenge of the revisionist-plaintiff, is as follows –

The revisionist-plaintiff, aged about 49 years, filed a suit against the respondent no.1-defendant no.1 along with other defendants. According to the plaintiff, the plaintiff is a natural daughter of the respondent no.1. The respondent no.1-defendant no.1 filed his written statement and according to him, the revisionist-plaintiff is not his natural daughter. According to the respondent no.1, the revisionist is a natural daughter of Mr. Paltu Ram, the brother-in-law of the respondent no.1. Mr. Paltu Ram is not a party in the Original Suit. After filing the written statement, the respondent no.1 moved an application for conducting the D.N.A. Test of the plaintiff.

Heard Mr. T.A. Khan, the learned Senior Advocate assisted by Ms. Divya Jaiswal, learned counsel holding brief of Mr. Vinay Bhatt, the learned counsel for the revisionist and Mr. Anshu Kumar, the learned counsel for the respondents.

Admittedly, the revisionist-plaintiff had completed her primary education, she cleared her Junior High School in the year, 1983, High School in the year, 1985, her Intermediate in the year, 1987, completed her Graduation in the year, 1989 & Post Graduation in the year, 1995 and lastly, completed her LL.B. examination in the year, 1999.

These facts are also admitted between the parties that in all the said educational certificates, the father’s name of the revisionist was written as Mr. Tulsi Ram, the respondent no.1-defendant no.1. The respondent no.1 was a Government employee and whenever and wherever, he posted, the revisionist was given the education in the schools/colleges of that District or surrounding district.

The learned counsel for the respondents submitted that the name of the respondent no.1 was written in the said educational certificates of the revisionist as her father, because the revisionist was residing with him (respondent no.1). The learned counsel for the respondents fairly conceded that after 49 years, the issue of paternity of the revisionist has been challenged, because the revisionist has filed the Original Suit claiming her right in the property of her mother Smt.Gyano Devi, the wife of the respondent no.1-defendant no.1.

The learned counsel for the respondents also admitted that at this stage, there is no prima facie evidence to show that the revisionist is a natural daughter of Mr. Paltu Ram.

It is well settled that merely because either of the parties have disputed a factum of the paternity does not mean that the court should direct D.N.A. test. The court cannot direct the D.N.A. test without hearing the person concerned. In so far as the present case is concerned, Mr. Paltu Ram is not a party in the suit. The learned Trial Court overlooked a very material aspect that the plea of paternity has been raised after 49 years, and according to the respondent no.1-defendant no.1, the natural father of the revisionist is Mr. Paltu Ram, the brother-in-law of the respondent no.1-defendant no.1. However, Mr. Paltu Ram is not a party in the suit and no prima facie evidence is on record to show that the revisionist is a natural daughter of Mr. Paltu Ram.

In these circumstances, after framing the issues, the parties should be directed to lead their evidence to prove or disprove the factum of paternity and then only, if the court finds it impossible to draw any inference on the basis of such evidence on record or the said controversy cannot be resolved without D.N.A. Test, it may direct D.N.A. Test, if necessary for a right decision of the civil lis, and not otherwise. It is also settled law that the court should not hesitate to direct D.N.A. Test, if it is in the best interest of a child.

The learned counsel for the respondents has relied upon a judgment of the Hon’ble Supreme Court passed in “Kanthamma vs. K. Shettappa & Others”, 2014 (1) Civil Court Cases 817 (SC), whereby the Hon’ble Court had allowed the test for conducting D.N.A.

The learned Senior Advocate appearing for the revisionist submitted that in that case, the Hon’ble Suprme Court had allowed to conduct D.N.A. test in the best interest of child and in the present case, the relief seeking for D.N.A. test is not in the interest of the child but, in his own interest (respondent no.1-defendant no.1). The learned Senior Advocate submitted that evidence are available on the record to prove the relationship between the revisionist and the respondent no.1, therefore, the learned trial court should refrain from ordering D.N.A. test. To support his contentions, he has relied upon the judgment dated 01.10.2021, passed by the Hon’ble Supreme Court in Civil Appeal No.6153 of 2021, “Ashok Kumar vs. Raj Gupta & Others”.

The paternity of a child is an extremely delicate and sensitive aspect. The direction for D.N.A. test should not be given by the court in a routine manner, whenever, such a request is made. The court should exercise such a power, if the party has a strong prima facie case and there is sufficient material before the court. An order for D.N.A. test can be given by the court, only if a strong prima facie case is made out for such a course.

Looking to the case from all angles, it can be safely said that there exists no prima facie case in favour of the respondent no.1-defendant no.1 warranting such directions.

Consequently, the impugned order dated 05.11.2020, passed by the Civil Judge (Senior Division), Roorkee, District Haridwar in Original Suit No.125 of 2019, “Smt. Uma alias Kela Rani Verma vs. Tulsi Ram and Others”, is set aside. The present revision stands allowed leaving the parties to bear their respective costs.