1 2025:CGHC:30386 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WP227 No. 998 of 2024  Shyamal Mallick S/o Late Santosh Mallick Aged About 52 Years R/o Durpa Road, Korba, Tahsil And District Korba Chhattisgarh ... Petitioner(s) versus 1. Mamta Das D/o Late Shri C.R. Das Aged About 39 Years Caste Panika, R/o Indira Market, Behind Sector-6, Indira Market, Balco Nagar, Tahsil And District Korba Chhattisgarh 2. Mimansha Mallick D/o Shyamal Mallick Aged About 10 Years Minor Represented Through Mother And Natural Guardian Mamta Das, Aged About 39 Years, D/o C.R. Das, R/o Indira Market, Behind Sector-6, Indira Market, Balco Nagar, Tahsil And District Korba Chhattisgarh ... Respondent(s) For Petitioner : Mr. Samsun Samuel Masih, Advocate For Respondents : Dr. Nirmal Shukla, Senior Advocate along with Mr. Rahul Vats, Advocate Hon’ble Shri Justice Rakesh Mohan Pandey Judgment On Board 03-07-2025 1) By way of this petition, petitioner has sought following relief(s):- “10.1 That this Hon'ble Court may kindly be pleased to call the records of court below, for kind perusal of this Hon'ble Court. 2 10.2 That this Honble Court may kindly be pleased to set-aside the impugned order dated 08.10.2024 and further be pleased to reject the application under Section 151 of CPC filed by the respondents. 10.3 That, any other relief/order which may deem fit and just in the facts and circumstances of the case including award of the costs of the petition may be given.” 2) Facts of the present case are that respondents filed application under Section 125 of Cr.P.C. before the learned Family Court, Korba claiming therein maintenance inter-alia on the ground that there was illicit physical relationship between petitioner and respondent No. 1. It was pleaded that respondent No. 2 was born as a result of their relationship. The learned Family Court rejected the application vide order dated 22.02.2012 holding that respondent No. 2 is not the illegitimate child of petitioner. The respondents preferred revision against the order dated 22.02.2012 by filing Cr.R. No. 179 of 2012 before the High Court wherein application seeking permission to get DNA Test was moved and same was rejected vide order dated 04.02.2013 and it was observed that respondents may file suit for declaration under Section 34 of Specific Relief Act, 1963 [hereinafter to be referred as “Act, 1963”] regarding status of respondent No. 2. Respondent No. 2 filed Special Leave to Appeal (Cri.) No. 3832 of 2013 before the Hon’ble Supreme Court and it was dismissed vide order dated 08.05.2013. 3 3) Thereafter, respondents filed suit under Section 34 of the Act, 1963 before the learned Family Court, Korba seeking declaration to the effect that respondent No. 2 is the illegitimate child and has been born from the physical relationship between petitioner and respondent No. 1. During pendency of suit, respondents moved application under Section 151 of CPC before the learned Family Court to conduct DNA Test on 27.09.2018. Petitioner filed reply to the said application wherein it was stated that earlier application to conduct DNA Test has already been rejected and that order has been affirmed by the Hon’ble Supreme Court. Learned Family Court after hearing the parties, allowed the application moved under Section 151 of CPC vide order dated 08.10.2024 and directed the parties to provide blood samples to conduct DNA Test. 4) Learned counsel for the petitioner submits that order dated 08.10.2024 is bad in law and the Court cannot order DNA Test as a matter of course for the reason that the parties cannot be allowed to collect evidence through the Court. He further submits that order passed by the learned Family Court whereby petitioner has been compelled to prove blood sample is in violation of his right to privacy. He also submits that application moved by the respondents to conduct DNA Test was earlier rejected by the High Court in Cr.R. No. 179 of 2012 and same was affirmed by the Apex Court. During course of the argument, he contends that the 4 suit filed by respondents before the learned Family Court is not maintainable as per the law laid down by the Hon’ble Supreme Court in the matter of Ivan Rathinam Versus Milan Joseph 1 passed in Criminal Appeal No. 413 of 2025, wherein it is held that Family Court could not entertain any proceeding for a declaration as to the legitimacy of any person without any claim on the marital relationship. It is also held such issue will not fall within the exclusive jurisdiction of Family Court. Relevant paras 57 and 58 are reproduced herein below : 57. In Renubala Moharana v., Mina Mohanty (supra), this Court was confronted with a set of facts similar to the present dispute. In the captioned matter, the child therein was contended not to have been the mother's husband's offspring, despite being conceived during the subsistence of the marriage. The appellants therein filed a petition before the Family Court "to declare that their son was the father of the minor Child, and not the mother's husband." This Court held that the Family Court could not entertain any proceedings for declaration as to the legitimacy of any person without any claim on the marital relationship. 58. The jurisdiction conferred upon the Family Court is for the settlement of issues arising out of matrimonial causes. A matrimonial cause essentially relates to the rights of marriage between a husband and wife In the instant case, there is no claim regarding the marital relationship between the Respondent's mother and Mr. Raju Kurian, and instead, it pertains to an alleged extra-marital relationship between the Appellant and the Respondent's mother. This matter, therefore, cannot be construed to fall within the exclusive jurisdiction of the 1. 2025 LiveLaw SC 118 5 Family Court and was thus, rightly entertained by the Munsiff Court and subsequently, the Sub-Judge. He has placed reliance on the judgment rendered by the High Court Of Kerala in matter of Sujith Kumar S Versus Vinaya S in OP(Crl.) No. 631 of 2023 wherein it is held in para 8(iv) that “Merely because either of the parties have disputed a factum of paternity, it does not mean that the Court should direct DNA test or such other test to resolve the controversy. The parties should be directed to lead evidence to prove or disprove the factum of paternity and only if the Court finds it impossible to draw an inference based on such evidence, or the controversy in issue cannot be resolved without DNA test, it may direct DNA test and not otherwise”. He has also placed reliance on the judgment rendered by the High Court Of Kerala in matter of Bharat Kumar Versus Selma Mini in WPC No. 33380 of 2005, in para 4 it is held that “The jurisdiction conferred on the Family Court is settlement of issues arising out of matrimonial causes. Matrimonial cause is a cause relating to rights of marriage between husband and wife. Paternity and legitimacy are two different concepts. Paternity by itself may not, in all circumstances, be a matrimonial cause, as in the instant case. Paternity is the state or fact of being the father of a particular child. Legitimacy of a child is its right to be officially accepted as such.” It is further held that “The Family Court gets jurisdiction to go into the investigation on the paternity of a 6 person only if such a question arises in a matrimonial cause.” He prays to allow this petition. 5) On the other hand, learned Senior counsel appearing on behalf of respondents opposes. He submits that petitioner has suppressed material facts as he, himself has filed two writ petitions before this Court bearing WP227 No. 837 of 2019 and WP227 No. 839 of 2019. He further submits that in WP227 No. 837 of 2019, petitioner has challenged the order dated 22.10.2019 passed in Case No. 71A/2017 whereby the Judge, Family Court, Korba rejected the application moved by petitioner under Section 151 of CPC making prayer for deferred hearing on the application for DNA examination. He also submits that in WP227 No. 839 of 2019, petitioner had challenged the same order by which the application filed for DNA examination to ascertain parentage of respondent No. 2 was allowed. He contends that petitioner also suppressed material facts to the effect that he had consented for collection of blood sample and his blood sample was collected on 04.07.2024. He further contends that petitioner is an Advocate having long practice in the District Court, Korba ; respondent No. 1 after passing L.L.B. examination, joined the office of petitioner as Junior Advocate ; respondent No. 1 was sexually assaulted by the petitioner and FIR was lodged against him ; respondent No. 1 conceived and gave birth to respondent No. 2. He also contends that respondents filed suit under Section 34 of the Act, 1963 for declaration to the effect that petitioner is the biological father of 7 respondent No. 2 before the learned Principal Judge, Family Court, Korba and it was registered as Case No. 71A/2017. He argues that petitioner was acquitted by the Criminal Court in criminal case ; application was moved by respondents to conduct DNA Test and thereafter, application under Section 151 of CPC was moved by the petitioner to defer the hearing of application till evidence is recorded. He further argues that application was rejected on 22.10.2019 and respondent No. 1 was directed to deposit expenses for DNA Test. He also argues that both the orders were challenged by petitioner by filing WP227 No. 837 of 2019 and WP 227 No. 839 of 2019 before this Court. He avers that those writ petitions were partly allowed vide order dated 19.12.2013 and learned Family Court was directed to keep the application for DNA Test deferred till completion of evidence from both the sides. He further avers that initially, right over the property was claimed by the respondents, but later on relief clause was amended and respondents sought only declaration with regard to paternity. 6) During course of argument, learned Senior counsel has placed on record the order passed in WP227 No. 31 of 2024 wherein issue regarding lack of jurisdiction of Family Court was challenged by petitioner. In this regard, he submits that petitioner had moved application under Order 7 Rule 10 of CPC challenging maintainability of civil suit under provisions of Section 34 of Act, 1963. He further submits that co-ordinate Bench after dealing with 8 Sections 7, 8 and 20 of Family Courts Act, 1984, dismissed the writ petition holding that “relief sought by the plaintiff/ respondent No. 1 falls within jurisdiction of Family Court as the plaintiff in paragraph 16(a) has sought for declaration that plaintiff No. 2 be declared as illegitimate child of plaintiff No. 1 and defendant.” He also submits that the issue regarding jurisdiction of Family Court has already been decided and the petitioner cannot be permitted to re-agitate this issue. He submits that this petition deserves to be dismissed. 7) I have heard learned counsel for the parties and perused the documents placed on record. 8) In the present case, respondent No. 1 moved application under Section 125 of Cr.P.C. before the learned Family Court and same was dismissed vide order dated 22.02.2012. Respondents preferred Cr.R. No. 179 of 2012 and during its pendency, application seeking permission to get DNA Test was moved. Co- ordinate Bench vide order dated 04.02.2013 rejected the application and dismissed the Cr.R. No. 179 of 2012 but granted liberty in favor of respondents to file a suit under Section 34 of Act, 1963 for declaration regarding status of respondent No. 2. SLP preferred by respondent No. 2 was dismissed by the Hon’ble Supreme Court vide order dated 08.05.2013. Thereafter, respondents instituted a civil suit seeking declaration to the effect that petitioner is the biological father of respondent No. 2 before 9 the learned Family Court, Korba. In the Civil Suit, an application to order DNA Test was moved and same was allowed directing respondent No. 1 to deposit expenses for DNA Test. The application moved by petitioner to defer the hearing of said application was rejected. 9) Petitioner filed two writ petitions i.e. WP227 No. 837 of 2019 and WP227 No. 839 of 2019 challenging the order dated 22.10.2019 passed by the learned Family Court in Case No. 71A/2017. Both writ petitions were partly allowed and Family Court was directed to consider the application for DNA Test after completion of evidence from both the sides. Respondents moved another application seeking permission for conducting DNA Test before the Family Court which was allowed vide order dated 08.10.2024 wherein the Family Court observed that application seeking permission to conduct DNA Test is being considered after completion of evidence of both the parties. Petitioner has challenged this order by filing the instant writ petition. 10)It is pertinent to mention that petitioner had filed WP227 No. 31 of 2024 prior to the order dated 08.10.2024 challenging the order dated 15.12.2023 whereby the application moved by petitioner under Order 7 Rule 10 of CPC was rejected and in that application, petitioner had challenged the maintainability of civil suit under Section 34 of the Act, 1963 before learned Family 10 Court. Co-ordinate Bench in paras 13 and 14 while dismissing the petition held as under :- 13. From the above stated legal provisions of the Family Courts Act and also considering the object of the establishment of the Family Courts Act, it is quite vivid, that in case there is dispute on the matrimonial status of any person a declaration in that regard has to be sought only before the Family Court. Section 20 of the Act. 1984 also provides that the provisions of this Act shall have overrriding effect and Section 8 of the Act also provides exclusion of jurisdiction which has been enumerated in Section 7 of the Act as well as proceedings under Chapter 11 of the CrPC. In the present facts of the case, the plaintiff is claiming illegitimacy of a child whether it is affirmative relief or negative relief what is important, is the declaration regarding the matrimonial status. Thus learned Family Court has not committed any illegality in rejecting the application under Order 7 Rule 10 CPC. This issue has come up for consideration before the Hon'ble Supreme Court in the case of Balram Yadav vs. Fulmaniya Yadav reported in 2016 (13) SCC 308, wherein the Hon'ble Supreme Court in paragraph 7 to 8 has held as under:- 7. Under Section 7(1) Explanation (b), a Suit or a proceeding for a declaration as to the validity of both marriage and matrimonial status of a person is within the exclusive jurisdiction of the Family Court, since under Section 8, all those jurisdictions covered under Section 7 are excluded from the purview of the jurisdiction of the Civil Courts. In case, there is a dispute on the matrimonial status of any person, a declaration in that regard has to be sought only before 11 the Family Court. It makes no difference as to whether it is an affirmative relief or a negative relief. What is important is the declaration regarding the matrimonial status. Section 20 also endorses the view which we have taken, since the Family Court Act, 1984 has an overriding effect on other laws. 8. In view of the above, the appeal is allowed. The impugned judgment of the High Court is set aside. The matter is remitted to the High Court to be decided on merits. We request the High Court to hear the appeal afresh and dispose it of expeditiously, preferably within a period of six months. 14. Considering the above stated factual position and particularly the relief sought by the plaintiff, it is quite vivid, that it falls within the jurisdiction of the Family Court as the plaintiff in paragraph 16 (a) has sought for declaration that plaintiff No.2 be declared as illegitimate child of plaintiff No.1 and defendant. 11) Petitioner has not disclosed filing of WP227 No. 837 of 2019, WP227 No. 839 of 2019 and WP227 No. 31 of 2024 in this petition. In the matter of Ivan Rathinam (supra), Hon’ble Supreme Court has held that “Family Court could not entertain any proceeding for a declaration as to the legitimacy of any person without any claim on the marital relationship”, but the issue of jurisdiction of Family Court has already been decided by co- ordinate Bench in WP227 No. 31 of 2024 [filed by petitioner himself] vide order dated 08.04.2024, therefore, this issue cannot be re-agitated by petitioner. In the entire petition, petitioner has 12 not taken a ground of lack of jurisdiction of Family Court. He has challenged the order passed by Family Court, Korba dated 08.10.2024 on the ground that earlier application for DNA Test was rejected in Cr.R. No. 179 of 2012 and that order was affirmed by the Apex Court. 12) Further, in paras 46 and 47 of Ivan Rathinam (supra), it is 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 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. 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 13 evidence; and (ii) a positive finding regarding the balance of interests. " 13) Learned Family Court allowed the application to conduct DNA Test vide order dated 08.10.2024 after completion of recording of evidence of both sides. It appears that learned Family Court found evidence insufficient to arrive at a finding with regard to paternity of respondent No. 2, therefore, application was allowed. 14) Also, petitioner has not placed any document to demonstrate that order passed in WP227 No. 31 of 2024 dated 08.04.2025 has been challenged before Hon’ble Supreme Court, thus that order has attained finality. 15) Taking into consideration the facts of present case ; the law laid down by Apex Court in matter of Ivan Rathinam (supra) and the conduct of petitioner of suppressing material facts, in my opinion, no case is made out to interfere with the order impugned. Consequently, this petition fails and is hereby dismissed. Interim relief granted earlier is hereby vacated. Sd/- (Rakesh Mohan Pandey) JUDGE Ajinkya Digitally signed by AJINKYA PANSARE Date: 2025.07.04 18:05:50 +0530