-1- 2025:CGHC:24217 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WP227 No. 540 of 2021 Chaturbhuj Pradhan S/o Bhim Pradhan Aged About 47 Years R/o Village Palsapali, Tahsil Basna, District Mahasamund Chhattisgarh. ... Petitioner versus 1 - Amar Pradhan S/o Chaturbhuj Pradhan Aged About 22 Years R/o Village Palsapali, Tahsil Basna, District Mahasamund Chhattisgarh., District : Mahasamund, Chhattisgarh 2 - Smt. Bilasini W/o Chaturbhuj Pradhan Aged About 38 Years R/o Village Palsapali, Tahsil Basna, District Mahasamund Chhattisgarh., District : Mahasamund, Chhattisgarh ... Respondent(s) (Cause Title is taken from Case Information System) For Petitioner : Mr. Manoj Paranjpe, Advocate For Respondent No.1 : Mr. Surfaraj Khan, Advocate For Respondent No.2 : None though served Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board 16.06.2025 1) The petitioner has challenged the order passed by the First Additional Civil Judge, Class-II, Basna, District Mahasamund, in Civil Suit No. 13A/2019 dated 21.09.2021, whereby the petitioner/defendant No.1 has been directed to Digitally signed by NADIM MOHLE -2- undergo a DNA test by providing a blood sample to ascertain the paternity of the plaintiff. 2) The facts of the present case are that respondent No.1 filed a civil suit for declaration of title and permanent injunction, claiming a right over the property of the petitioner to the extent of 1/3rd share, inter alia on the ground that the petitioner is his biological father. It is further pleaded that respondent No.2, who is the mother of the plaintiff, was sexually exploited by the petitioner in the year 1999, and an offence punishable under Sections 376 and 506-II of the IPC was registered against him. However, he was acquitted vide judgment dated 31.12.1999. According to the plaint averments, the plaintiff was born on 10.09.1999, whereas the date of the incident was four months prior to the date of the FIR. 3) The suit was filed by the plaintiff on 30.07.2019. The petitioner/defendant No.1 filed a written statement and denied the plaint averments. The petitioner denied the paternity too. 4) The learned Trial Court framed issues and thereafter on 19.01.2020, the plaintiff moved an application for a DNA test to ascertain the paternity. The application was replied to by the petitioner. The learned Trial Court taking into consideration the facts and circumstances of the case, allowed the application for a DNA test vide order dated 21.09.2021. Against the said order, the present petition has been filed. 5) Mr. Paranjpe, learned counsel for the petitioner would submit that respondent -3- No.1/plaintiff could not establish the relationship between the petitioner and respondent No.2. He would further contend that in the absence of any prima facie material, the learned Trial Court committed an error of law in allowing the application for DNA Test. He would further submit that normally, a Court should not order a DNA test in the absence of a prima facie case. He would also submit that to ascertain the legitimacy or illegitimacy of a child, such an order should not be passed. He would contend that the plaintiff has an opportunity before the learned Trial Court to prove the legitimacy by leading evidence according to the law. 6) Mr. Paranjpe has placed reliance on the judgment passed by the Hon’ble Supreme Court in the matter of Ivan Rathinam v. Milan Joseph [2025 SCC OnLine SC 175]. 7) On the other hand, Mr. Surfaraj Khan, learned counsel for respondent No.1, would oppose the submissions made by Mr. Paranjpe. He would submit that the mother of the plaintiff was sexually exploited by the petitioner. He would contend that due to lack of evidence, the petitioner was acquitted by the learned Criminal Court by extending the benefit of doubt. He would further contend that immediately nine months from the date of the incident, respondent No.1/plaintiff was born on 10.09.1999. However, the fact of relationship between the petitioner and respondent No. 2 and the paternity cannot be established or proved by leading oral evidence; therefore, the DNA test was sought by the plaintiff before the learned Trial Court. He would also contend -4- that if the DNA test is not conducted, it would be impossible for respondent No. 1 to prove his case. He would further submit that the plaintiff is not only claiming a share in the property but also claiming his identity. In support thereof, he placed reliance on the judgment passed by this Hon’ble Supreme Court in the matter of Bhabani Prasad Jena v. Orissa State Commission for Women (2010) 8 SCC 633 and the judgment passed by this Court in the matter of Tej Kumar v. Padmalochan and Ors. [WP(227) No.586 of 2022, decided on 04.03.2025]. 8) I have heard learned counsel for the parties and perused the documents. 9) Admittedly, an FIR was lodged against the petitioner for the commission of offences punishable under Sections 376 and 506-II of the IPC. The petitioner was tried and acquitted extending the benefit of doubt. According to the facts mentioned in the judgment of acquittal, the incident had taken place four months prior to the date of the FIR i.e., 16.05.1999, whereas the date of birth of the plaintiff is 10.09.1999. 10) The plaintiff, after attaining the age of majority, filed a suit claiming 1/3rd share in the property of the petitioner. The pleadings made by the plaintiff were denied by the petitioner; therefore, the occasion arose to move an application for a DNA test, which was allowed by the learned Trial Court. 11)In the matter of Ivan Rathinam (supra), the Hon’ble Supreme Court has held that an application for a DNA test cannot be allowed without considering the right to life and personal liberty under Article 21 of the Constitution of India, -5- including the right to privacy. It is also held that the right to dignity encapsulates the right to privacy, and being forcibly subjected to a DNA test infringes on this right and opens one up to scrutiny by the outside world. Paragraphs 38 to 40 are reproduced as under: “38. In this context, while permitting an enquiry into a person’s paternity vide a DNA test, we must be mindful of the collateral infringement of privacy. For this, the court must satisfy itself that the threshold for the above- mentioned three conditions is satisfied. If even one of these conditions fails, it is considered an unwarranted invasion of privacy and consequently, of life and personal liberty as embodied in Article 21 of the Constitution. 39.Similarly, when dealing with the right to dignity, this Court, in X2 v. State (NCT of Delhi), 35 held that the right to dignity encapsulates the right of every individual to be treated as a self- governing entity having intrinsic value. It means that every human being possesses dignity merely by being a human, and can make self-defining and self- determining choices. Further, this Court held that the right to dignity is intertwined with the right to privacy. This means that a person can exercise his right to privacy in order to protect his right to dignity and vice-versa. Together, these rights protect an individual’s ability to make the most intimate decisions regarding his life, including sexual activity, 36 whether inside or outside the confines of marriage. 40. Forcefully undergoing a DNA test would subject an individual’s private life to scrutiny from the outside world. That scrutiny, particularly when concerning matters of infidelity, can be harsh and can eviscerate a person’s reputation and standing in society. It can irreversibly affect a person’s social and professional life, along with his mental health. On account of this, he has the right to undertake certain actions to protect his dignity and privacy, including refusing to undergo a DNA test.” 12) Further, the Hon’ble Supreme Court in Paragraphs 46 & 47 held that while dealing with the issue of DNA testing, the Court should balance the interests of both parties and must consider whether it is possible to reach a conclusion -6- without such a test. It is also held that if evidence can be laid to prove legitimacy, there is no need to pass an order for a DNA test, but once insufficiency is apparent, the Court must consider the interest of the party and must inform whether it is necessary to pass such an order. The relevant Paragraphs 46 & 47 are reproduced herein-below:- “46. When dealing with the eminent need for a DNA test to prove paternity, this Court balances the interests of those involved and must consider whether it is possible to reach the truth without the use of such a test. 37 47. First and foremost, the courts must, therefore, consider the existing evidence to assess the presumption of legitimacy. If that evidence is insufficient to come to a finding, only then should the court consider ordering a DNA test. Once the insufficiency of evidence is established, the court must consider whether ordering a DNA test is in the best interests of the parties involved and must ensure that it does not cause undue harm to the parties. There are thus, two blockades to ordering a DNA test: (i) insufficiency of evidence; and (ii) a positive finding regarding the balance of interests. ” 13) In the matter of Bhabani Prasad Jena (supra), the Hon'ble Supreme Court held that in matters where the paternity of a child is in issue before the Court, the use of a DNA test is an extremely delicate and sensitive aspect. One view is that when modern science gives the means of ascertaining the paternity of a child, there should not be any hesitation to use those means whenever the occasion requires. 14) In the matter of Tej Kumar (supra), in Paragraph 15, it has been held that if the petitioner/defendant No.1 fails to come forward for the DNA test, the Court may draw an adverse inference against him in accordance with Section 114(h) of the Evidence Act, as held by the Hon'ble Supreme Court in the matter of Aparna -7- Ajinkya Firodia v. Ajinkya Arun Firodia [(2024) 7 SCC 773]. 15) From a perusal of the pleadings made in the plaint and the other documents annexed with the writ petition, it appears that the issue of paternity, as alleged by the plaintiff, cannot be proved by oral evidence alone. 16)The Hon’ble Supreme Court, while dealing with such a situation, held that if the evidence is insufficient to come to a finding, only then the court should consider ordering a DNA test. 17)Taking into consideration the law laid down by the Hon’ble Supreme Court and the facts of the present case, in my opinion, the learned First Additional Civil Judge Class-II, Basna, District Mahasamund has rightly allowed the application moved by the plaintiff to conduct a DNA test; thus, I do not find any good ground to allow this writ petition. Accordingly, this writ petition is hereby dismissed. 18)Interim relief granted earlier stands vacated. Sd/- (Rakesh Mohan Pandey) Judge Nadim