In CRR(F)-117-2019-P&H HC sets aside judgment directing DNA test to be conducted to determine paternity of child of petitioner claiming maintenance; says determining child’s paternity not moot point as factum of marriage was disputed Justice Suvir Sehgal[02-06-2022]

Read Order: Smt. Satya Roopa Sinha v. Sarwan Kumar Mehto 

Monika Rahar

Chandigarh, June 10,2022:  While dealing with a revision petition assailing order of Family Court allowing respondent’s application for DNA test of the child of the petitioner in response to her maintenance petition, the High Court of Punjab and Haryana has held that since the respondent challenged the very factum of his marriage with the petitioner, the order of DNA test to determine paternity was not warranted. 

The Bench of Justice Suvir Sehgal made the above-stated observations while addressing the question of whether it is necessary to conduct the DNA test of the child in order to decide the application for maintenance instituted by the wife-petitioner under Section 125 of the Code, particularly when the child is not a claimant. 

The Bench eventually held, 

“… she [petitioner] has claimed maintenance from the respondent on the ground that she is his legally wedded wife and a child was born out of the wedlock. No claim has been raised on behalf of the minor. The petitioner, on the basis of evidence which she chooses to lead, has to establish her marriage as the same is being disputed by the respondent. This Court therefore, is of the opinion that determining the paternity of the child is not the moot point.”

The instant petition was filed under Section 401 of the Code of Criminal Procedure, 1973, (Cr.P.C.), impugning order of the Family Court, Gurugram, whereby application filed by the respondent seeking DNA test of the child of the petitioner, was allowed. 

Brief background of the case was that the petitioner approached the Family Court seeking maintenance under Section 125 of the Cr.P.C. on the ground that she got married with the respondent in 2001 and in 2005, a child was born out of this wedlock. Opposing this application, the respondent denied marital ties with the petitioner. It was stated by the respondent that he was married to Babita in the year 1998, who expired in 2002 and that the two sons born out of the wedlock were also married. He denied the paternity of the child of the petitioner. 

It was further claimed by the respondent that the petitioner, who was earning sufficiently herself, had married one Ajay in the year 2000 and ran away from there and subsequently started living with Shanker as his wife. Thereafter, the respondent filed an application for conducting the DNA test of the child. This application was resisted by the petitioner but the Trial Court allowed the application vide the order impugned. 

The counsel for the petitioner assailed the impugned order on the ground that the paternity test of the child is not required and the fatherhood of the respondent was established from the ration card, aadhar cards and school fee receipts and other record appended with the petition. 

Opposing the petition, counsel representing the respondent made a reference to the cross-examination of the petitioner, wherein she stated that she did not have any objection in case the child is subjected to DNA analysis. It was further contended that there is no absolute bar in the conducting of blood tests of the child.

The Court observed at the very outset that the petitioner claimed maintenance from the respondent on the ground that she was his legally wedded wife and a child was born out of the wedlock. But, Justice Sehgal added that no claim was raised on behalf of the minor. 

Further, the Court observed that since the factum of solemnization of marriage between the parties was in question, the petitioner, on the basis of evidence which she chooses to lead, has to establish her marriage and thus the Court was of the opinion that determining the paternity of the child was not the moot point. 

In view of the above discussion, the Court was of the view that the order passed by the Family Court directing the petitioner to undergo a blood test was not warranted from the facts and circumstances of the present case. 

Consequently, the impugned order was set aside.