DHIRENDRA MISHRA,J. - (1.)HEARD on admission. The petitioner has filed this petition under Article 227 of the Constitution of India against the order dated 1-3-2008 passed by the learned 1st Additional Principal, Family Court, Durg in which the learned Family Court allowing the application of the applicant/respondent herein has held that to decide whether the respondent/applicant is the son of the petitioner/non-applicant, conducting Deoxyribonucleic Acid test (for short 'DNA') is necessary. Respondent/applicant has been further directed to deposit the account payee draft payable to the Director, CDFD, Hyderabad for taking further action for conducting proceeding for DNA test. Mr. Tiwari, learned Counsel for the petitioner vehemently argued that DNA test cannot be directed as a matter of routine and only in deserving cases such direction can be given. In the first round of litigation between the same parties the petitioner by way of W.P. (c) No. 1010/07 had challenged the order dated 12-6-2002 passed by the Family Court, Durg by which DNA test was ordered and this Court vide order dated 12-3-2007 (Annexure P-1) had partly allowed the petition with an observation that the paternity can be proved from other evidences and also from the fact that both the persons were having physical relations when Kiranbai conceived and a child was born during that period, as a result of their relationship. This is for a person who is interested in denying the factum of physical relations and birth of a child during that period to rebut the allegation of the mother of the son. Applying the well settled principles of law, to the facts of the present case, it appears that the Court below has not examined the paternity on the basis of other evidences before directing DNA test. With the aforesaid observations the petition was remitted to the Family Court, Durg with a direction to decide the issue on the basis of other evidences before passing a direction for DNA test.
(2.)RELYING upon the various judgments it was argued that the learned Family Court without affording opportunity of hearing to the petitioner and the respondent and without following the provisions of settled law has allowed the application for DNA test. I have heard learned Counsel for the petitioner. After the matter was remitted to the Family Court, evidence of rival parties was recorded. Kiran Bai, mother of child, and her witnesses have deposed that the mother of the child is a widow lady, she came into contact with the petitioner, developed physical relationship with him and the child was born through that relationship, whereas, the petitioner has denied the paternity of the child.
Learned Family Court after considering the evidence available on record of both the parties has allowed the application of the respondent for DNA test with an observation that considering the evidence of witnesses, DNA test is necessary for deciding the paternity of the respondent child and accordingly, directed the non-applicant/respondent herein to deposit necessary expenses for conducting DNA test. In the matter of Banarasi Dass v. Teeku Dutta (Mrs.) and Anr. : (2005)4SCC449 , Smt. Teeku Dutta applied for succession certificate in respect of properties of deceased claiming that she was his daughter and only surviving Class-1 legal heir under the Hindu Succession Act, 1956. The objectors disputed her paternity and stated that she was not the daughter of the deceased and in fact, she was daughter of Ramsharan Das Sharma and since the deceased and his wife were dead it is not possible to subject them DNA test and compare with DNA test of Teeku Dutta and therefore, the DNA test of Ram Saran Dass and Teeku Dutta would conclusively suggest the paternity of Teeku Dutta.

(3.)TNE Hon'ble Supreme Court referring Section 112 of the Evidence Act, 1872 held that where the husband and wife were living together during the lifetime of the conception but the DNA test revealed that the child was not born to the husband, the conclusiveness of presumption under Section 112 of the Evidence Act would remain irrebuttable and considering the facts of that case rejected the appeal and upheld the order whereby DNA test was refused. However, the ration of law laid down in the above case is not applicable in the facts of the present case.
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