1 2025:CGHC:10541 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WP(227) No. 586 of 2022 • Tej Kumar S/o Late Raghuram Sahu Aged About 55 Years R/o Village Jamjuda, Police Station Sankra, Tahsil Pithoura, District Mahasamund, Chhattisgarh, Mo. No. 7247025225 ... Petitioner Versus 1. Padmalochan S/o Tej Kumar Sahu Aged About 31 Years R/o Village Jamjuda, Police Station Sankra, Tahsil Pithoura, District : Mahasamund, Chhattisgarh …Plaintiff/Respondent No.1 2. Nan Bai W/o Late Raghuram Sahu Aged About 75 Years R/o Village Jamjuda, Police Station Sankra, Tahsil Pithoura, District : Mahasamund, Chhattisgarh 3. Preetam Lal S/o Tej Kumar Sahu Aged About 28 Years R/o Village Jamjuda, Police Station Sankra, Tahsil Pithoura, District : Mahasamund, Chhattisgarh 4. Manoj S/o Tej Kumar Sahu Aged About 27 Years R/o Village Jamjuda, Police Station Sankra, Tahsil Pithoura, District : Mahasamund, Chhattisgarh 5. Tarendra @ Narendra S/o Tej Kumar Sahu Aged About 26 Years R/o Village Jamjuda, Police Station Sankra, Tahsil Pithoura, District : Mahasamund, Chhattisgarh 6. Ku. Sachi Sahu D/o Raghuram Sahu Aged About 42 Years R/o Village Jamjuda, Police Station Sankra, Tahsil Pithoura, District Mahasamund Chhattisgarh. At Present R/o LIC Colony Mova Raipur, Tahsil And District Raipur, Chhattisgarh. 7. Smt. Prabha Bai D/o Tej Kumar Sahu Aged About 51 Years R/o Village Jamjuda, Police Station Sankra, Tahsil - Pithoura, District : Mahasamund, Chhattisgarh 8. State Of Chhattisgarh Through Collector Mahasamund, District : Mahasamund, Chhattisgarh …Defendants No. 2 to 8/respondents No. 2 to 8 ... Respondents Digitally signed by RAMESH KUMAR VATTI 2 For Petitioner : Mr. Ratnesh Kumar Agrawal with Ms. Prabha Sharma, Advocates For Respondent No. 1 For Respondent No. 8/State : : Mr. Surfaraj Khan, Advocate Ms. Neelima Singh Thakur, Panel Lawyer Hon’ble Shri Justice Rakesh Mohan Pandey Order on Board 04/03/2025 1. Defendant No. 1/petitioner has challenged the order dated 16.08.2022 passed by the learned Additional District Judge (FTC), Mahasamund, in Civil Appeal No. 01/2018, wherein and whereby an application under Section 151 of CPC moved by the plaintiff/respondent No.1 to conduct DNA test was allowed. 2. The facts of the present case are as under:- Respondent No. 1/plaintiff instituted a suit for declaration of title and recovery of possession in respect of the suit house and lands shown in Schedules “A” and “B” on the ground that he is the son of petitioner/defendant No. 1 and Smt. Prabha Bai – respondent/ defendant No. 7. It was further pleaded that the petitioner and respondent No. 7 were married according to the custom/Choodi Marriage. The petitioner/defendant No. 1 filed a written statement and denied the plaint averments. The petitioner had taken a specific plea that he is not the biological father of the plaintiff and respondent No. 7 is not his wife. The learned trial Court framed issues, the parties led evidence and vide judgment and decree dated 28.11.2017, the suit filed by the plaintiff was dismissed. The plaintiff/respondent No. 1 preferred a first appeal before the learned Additional District Judge (FTC), 3 Mahasamund which was registered as Civil Appeal No. 01/2018. During the pendency of the appeal, the plaintiff moved an application under Section 151 of CPC seeking a direction to conduct a DNA test to ascertain the paternity of the plaintiff with the petitioner. The petitioner/defendant No. 1 filed a reply to the said application and stated that he cannot be compelled to go for the DNA test as such the direction or order infringes his right to privacy. The learned first Appellate Court vide order dated 16.08.2022 allowed the application on the ground that the issue of paternity of the plaintiff is involved. The petitioner/defendant No.1 has filed this petition assailing the order dated 16.08.2022. 3. Mr. Ratnesh Kumar Agrawal, learned counsel appearing for the petitioner/defendant No. 1 would argue that the petitioner cannot be compelled to go for the DNA test. He would contend that a specific plea was taken by the petitioner in the written statement before the trial Court that he is not a biological father of the plaintiff, but no application was moved by the plaintiff for the DNA test. He would further contend that the application to conduct the DNA test has been moved at the appellate stage with the intent to harass the petitioner and the same has been allowed by the learned first Appellate Court. He would further submit that the direction issued by the first Appellate Court is contrary to the law laid down by the Hon'ble Supreme Court in the matter of Aparna Ajinkya Firodia Vs. Ajinkya Arun Firodia, reported in (2024) 7 SCC 773. He would also submit that the plaintiff failed to establish the fact that there was a marriage between defendant No. 1 and defendant No. 7. He would pray to set aside the order passed by the first Appellate Court dated 16.08.2022. 4 4. Mr. Surfaraj Khan, learned counsel appearing for the plaintiff/respondent No. 1 would oppose the submissions made by Mr. Ratnesh Kumar Agrawal. He would submit that as the petitioner/defendant No. 1 is not ready to comply with the direction issued by the learned first Appellate Court for DNA test, the learned Court below should draw an adverse inference against the petitioner according to the provisions of Section 114(h) of the Evidence Act. In support thereof, he placed reliance on the judgment passed by the Hon'ble Supreme Court in the matter of Dipanwita Roy Vs. Ronobroto Roy, (2015) 1 SCC 365. He also placed reliance on the judgment passed by the Hon'ble Supreme Court in the matter of Aparna Ajinkya Firodia (supra). He would also submit that the petitioner is the biological father of respondent No.1/plaintiff. He would contend that the petitioner disputed and denied this fact in the written statement, therefore, an application was moved by the plaintiff before the learned first Appellate Court. He would further contend that the plaintiff is deprived of his right over the suit property as well as the status of a son and without conducting the DNA test, the status of the plaintiff cannot be ascertained, therefore, the learned first Appellate Court rightly allowed the application moved by the plaintiff. He would state that the petition deserves to be dismissed. 5. Ms. Neelima Singh Thakur, learned Panel Lawyer appearing for the State/respondent No. 8 would support the order dated 16.08.2022 passed by the first Appellate Court. 6. I have heard learned counsel for the parties and perused documents available on the record. 5 7. A perusal of the order passed by the learned first Appellate Court would show that defendant No.1/petitioner disputed and denied the fact that he is a biological father of the plaintiff/respondent No. 1. A suit was filed by the plaintiff claiming therein right over 1/3rd share in the ancestral property on the ground that the petitioner is his father. The learned First Appellate Court after appreciating the contentions raised by both parties allowed the application vide order dated 16.08.2022. 8. Mr. Ratnesh Kumar Agrawal, learned counsel for the petitioner would submit that the petitioner is not ready to go for the DNA test. 9. In the matter of Narayan Dutt Tiwari Vs. Rohit Shekhar and Another, reported in (2012) 12 SCC 554, the Hon'ble Supreme Court held that the adverse inference may be drawn on refusal to comply with a direction for medical examination. The relevant paras- 54 and 55 are reproduced herein below:- “54. We also find the drawing of adverse inference from refusal to comply with the direction for medical examination to be not sufficient to satiate the need found by the Court. A legal fiction under Section 114 of the Evidence Act, as adverse inference is, is not a reality but which the said provision requires the Court to accept as reality. The Court is not bound to or obliged to draw such adverse inferences (see Emperor v. Sibnath Banerjee, AIR 1943 FC 75, Dhanvantrai Balwantrai Desai v. State of Maharashtra, AIR 1964 SC 575 and Fakir Mohd. v. Sita Ram, (2002) 1 SCC 741). 55. A presumption is not in itself evidence but only makes a prima facie case for parties in whose favour it exists (see Sodhi Transport Co. v. State of U.P., (1986) 2 SCC 486). As far back as in Damisetti Ramchendrudu v. Damisetti Janakiramanna, AIR 1920 PC 84 it was held that presumption cannot displace adequate evidence. The Supreme Court also in Mohanlal Shamji Soni v. Union of India, 1991 Supp (1) SCC 271 held that it is the rule of law in evidence that the best available evidence should be brought before the court to prove a fact or the points in issue and the court ought to take an active role in the proceedings in finding the truth and administering justice.” 6 10. In the matter of Aparna Ajinkya Firodia (supra), the Hon'ble Supreme Court allowed the appeal and set aside the order whereby the application for the DNA test was allowed. The relevant para- 105 is reproduced herein below:- “105. Therefore, I concur wholeheartedly with my learned Sister that the Family Court as well as the High Court were wrong in allowing the application of the respondent for subjecting the child to DNA test. Therefore, the appeal deserves to be allowed and accordingly it is allowed. However, this shall not preclude the respondent husband from leading any other evidence to establish the allegations made by him against the appellant in the petition for divorce.” Aparna Ajinkya Firodia (supra) was a case where the marriage between the parties was not in dispute, but in the present case, the petitioner has disputed the factum of marriage. Further, the petitioner has refused to go for the DNA test, therefore an adverse inference may be drawn against the petitioner according to the provisions of Section 114(h) of the Evidence Act. 11. The Hon'ble Supreme Court in the matter of Aparna Ajinkya Firodia (supra), in para- 97 held as under:- “97. Coming to the presumption under Section 114(h), the contention of the respondent is obviously misplaced. An adverse inference, in law, can be drawn only against the person who refuses to answer a question. In the case on hand, the appellant has a dual role to play, namely, that of the respondent’s wife and that of Master Arjun’s mother. If the appellant does or refuses to do something, for the purpose of deriving a benefit to herself, an adverse inference can be drawn against her. But in her capacity as a mother and natural guardian if the appellant refuses to subject the child to DNA test for the protection of the interests and welfare of the child, no adverse inference of adultery can be drawn against her. By refusing to subject the child to DNA test, she is actually protecting the best interests of the child. For protecting the best interests of the child, the appellant 7 wife may be rewarded, but not punished with an adverse inference. By taking recourse to Section 114(h), the respondent cannot throw the appellant to a catch-22 situation.” 12. As the marriage between the petitioner and respondent No. 7 is in dispute, the legitimacy of the child born is also in dispute and the plaintiff/child himself approached the Court to prove the fact that the petitioner is his biological father and that was the reason the learned first Appellate Court allowed the application. 13. In the matter of Bhabani Prasad Jena Vs. Orissa State Commission for Women, reported in (2010) 8 SCC 633, the Hon'ble Supreme Court held that in a matter where the paternity of a child is in issue before the Court, the use of 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. Taking into consideration the law laid down by the Hon'ble Supreme Court; the stand of the petitioner/defendant No.1 and the claim of the plaintiff/respondent No. 1, in the opinion of this Court, the petition deserves to be and is hereby dismissed. 15. If the petitioner/defendant No.1 fails to come forward for the DNA test, the learned First Appellate Court may draw an adverse inference against him according to the provisions of Section 114(h) of the Evidence Act as held by the Hon'ble Supreme Court in the matter of Aparna Ajinkya Firodia (supra). Sd/- (Rakesh Mohan Pandey) Judge vatti