Case Note & Summary
This writ petition was filed before the Bombay High Court challenging an order of the Joint Civil Judge, Senior Division, Kolhapur, passed in Special Civil Suit No. 37 of 2009. The suit was filed by the original plaintiff, claiming partition of property and a declaration that a sale deed was illegal, based on the assertion that he was the son of the original owner, Bashir Kulkarni. The defendants, including the petitioners, denied this relationship. During the proceedings, the plaintiff filed an application under Exhibit 72 seeking a DNA test of himself and the defendant nos. 2 to 6 (the daughters and step-sisters) to establish paternity. The trial court allowed the application on 17th June 2011, ordering the parties to undergo DNA testing. After this order, three of the original defendants filed affidavits on 23rd September 2011, accepting that the plaintiff was indeed the step-son or step-brother, being born to Bashir Kulkarni’s first wife Noorbi. Despite these admissions, the petitioners continued to challenge the DNA test order, arguing that such a test could not be ordered casually and only when the evidence on record was insufficient to prove the relationship. The petitioner’s counsel placed reliance on the Supreme Court’s dictum to this effect. The respondent no.1 (plaintiff) relied on the affidavits to argue that the DNA test was no longer necessary. The High Court, after hearing the parties, held that a DNA test cannot be ordered as a matter of routine. The correct approach is for the trial court to first evaluate whether the existing evidence is sufficient to establish the relationship. If it concludes that the evidence is insufficient, then it may direct a DNA test. In the present case, the trial court had skipped this step and directly ordered the test. Moreover, the subsequent filing of affidavits admitting the plaintiff’s paternity altered the circumstances, making the immediate need for a DNA test questionable. The court set aside the impugned order dated 17th June 2011, and allowed the petition to that extent. It was clarified that if, at a later stage, the trial court finds that the evidence on record is insufficient to prove the relationship, it may direct the parties to undergo a DNA test. Respondent no.4 was deleted at the petitioners’ risk. The rule was made absolute, and no order as to costs. The decision thus favored the petitioners by quashing the premature direction for DNA testing, while preserving the trial court’s power to order such a test if warranted after proper assessment of evidence.
Headnote
A) Civil Procedure - DNA Test - Principle that DNA test cannot be ordered as a matter of course; must be based on insufficiency of evidence - Directions to trial court to first evaluate evidence before ordering DNA test - Not mentioned - In a partition suit, the plaintiff sought a DNA test to prove paternity. The trial court allowed it without first determining if the evidence was insufficient. After the order, defendants filed affidavits admitting the relationship. The High Court held that a DNA test should only be ordered if the trial court concludes that evidence on record is insufficient; the impugned order was set aside, with liberty to the trial court to order DNA test if evidence found insufficient. (Paras 2-5)
Issue of Consideration
Whether the trial court was justified in ordering DNA test without first determining that the evidence on record was insufficient to prove the relationship between the parties.
Final Decision
The impugned order dated 17-06-2011 is set aside. The trial court may direct DNA test in the event it finds the evidence on record insufficient to prove the relationship. The writ petition is allowed to the aforesaid extent, and rule is made absolute.
Law Points
- DNA test cannot be ordered as a matter of course
- may only be ordered if evidence on record is insufficient to establish relationship
- subsequent affidavits admitting paternity obviates need for DNA test
- trial court must first conclude evidence insufficient before ordering DNA test
