# Jai Prakash v. Kumari Anjali & Anr

- **Citation:** (2019) 2 ILRA 1504
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-08-19
- **Case number:** Mattes Under Article 227 No. 5594 of 2019
- **Bench:** Manoj Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jai-prakash-v-kumari-anjali-anr-44599
- **Pages:** 4

## Headnote

A. Indian Evidence Act, 1872 - Section
112 - presumption u/s. 112 -attracted unless
shown parties to marriage had no access to
each other when child was born. DNA test to
determine paternity-not to be directed as a
matter of cause.

Held: - A DNA test to determine paternity of
child should not be directed as a matter of
course. The court has to consider various
diverse aspects including presumption under
Section 112 of the Evidence Act. At this
juncture applying the test of 'eminent need'
laid down by the Supreme Court in Bhabani
Prasad Jena (supra), this court finds no
illegality in the view taken by the court below
to
warrant
interference
in
exercise
of
supervisory power under Article 227 of the
Constitution.

Writ Petition dismissed (E-8)

List of Cases Cited: -

## Text

1504 INDIAN LAW REPORTS ALLAHABAD SERIES
possession of the disputed property but
the learned counsel for the petitioner has
failed even to point out any such evidence
or document. The only basis of the claim
of the petitioner or objection under Order
XXI Rule 97 C.P.C. is the alleged
unregistered agreement to sell allegedly
executed by the power of attorney holder
of
the
erstwhile
owner.
Thus,
an
agreement which does not even reflect
transfer of possession of the disputed
property, cannot entitle the petitioner for
the benefit of order Order XXI Rule 97
C.P.C.

17. In Bate Krishna Damani
(dead) by Lrs. Vs. Kailash Chand
Srivastava and another, 1995 supp. (1)
SCC 477 (para 4 and 5), in matters of
obstructing execution of decree in a rent
case, Hon'ble Supreme Court observed on
the facts of that case that there was sheer
abuse of the process of court resulting in
thwarting execution of a valid decree
during its subsistence. In Mani Nariman
Daruwala @ Bharucha (D) through
Lrs. Vs. Phiroz N. Bhatena and others,
(1991) 3 SCC 141 (paragraph 18),
Hon'ble Supreme Court laid down the law
with regard to scope of interference under
Article 227 of the Constitution of India
and held as under :-

"18. Was the High Court justified in
taking this view and in upsetting the
finding recorded by the Appellate Bench?
While considering this question it has to
be borne in mind that the High Court was
exercising its jurisdiction under Article
227 of the Constitution of India. In the
exercise of this jurisdiction the High
Court can set aside or ignore the findings
of fact of an inferior court or tribunal if
there was no evidence to justify such a
conclusion and if no reasonable person
could
possibly
have
come
to
the
conclusion which the court or tribunal
who (sic) has come or in other words it is
a finding which was perverse in law.
Except to the limited extent indicated
above the High Court has no jurisdiction
to interfere with the findings of fact (See:
Chandavarkar Sita Ratna Rao v. Ashalata
S. Guram). Applying these test we are
unable to persuade ourselves to hold that
the findings recorded by the Appellate
Bench suffer from such an infirmity so as
to justify interference with the said finding
under Article 227 of the Constitution."

18. The judgments relied by the
learned counsel for the petitioner are
clearly distinguishable on facts of the
present case and do not support the case
of the petitioner.

19. For all the reasons aforestated, I
do not find any merit in this petition.
Consequently, the petition fails and is
hereby dismissed with cost.
----------
(2019)10ILR A 1504

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.08.2019

BEFORE

THE HON'BLE MANOJ KUMAR GUPTA, J.

Mattes Under Article 227 No. 5594 of 2019

Jai Prakash ...Petitioner
Versus
Kumari Anjali & Anr. ...Respondents

Counsel for the Petitioner:
Sri Paras Nath Singh

Counsel for the Respondents:
-----
2 All. Jai Prakash Vs Kumari Anjali & Anr.
1505
A. Indian Evidence Act, 1872 - Section
112 - presumption u/s. 112 -attracted unless
shown parties to marriage had no access to
each other when child was born. DNA test to
determine paternity-not to be directed as a
matter of cause.

Held: - A DNA test to determine paternity of
child should not be directed as a matter of
course. The court has to consider various
diverse aspects including presumption under
Section 112 of the Evidence Act. At this
juncture applying the test of 'eminent need'
laid down by the Supreme Court in Bhabani
Prasad Jena (supra), this court finds no
illegality in the view taken by the court below
to
warrant
interference
in
exercise
of
supervisory power under Article 227 of the
Constitution.

Writ Petition dismissed (E-8)

List of Cases Cited: -

1. Goutam Kundu vs State of West Bengal,
1993 ACC 416

2.
Bhabani
Prasad
Jena
vs.
Convenor
Secretary, Orissa State Commission for Women
and another, 2010 8 SCC 633

3. Dipanwita Roy vs Ronobroto Roy, 2015 (1)
SCC 365

(Delivered by Hon'ble Manoj Kumar
Gupta, J.)

1. By impugned order dated
30.4.2019 the Additional Principal Judge,
Family Court, Basti has rejected an
application made by the petitioner for
getting DNA test of Km. Anjali (opposite
party No.1) conducted by a team of
medical experts.

2. The opposite parties brought suit
for maintenance against the petitioner
being Original Suit No.519 of 2011.
According to the opposite parties, they are
daughter-in-law
and
grand
daughter
respectively of the petitioner herein.
Opposite party No.2 was married to
Santosh Kumar, son of the petitioner on
17.5.2006 and vidai ceremony took place
on 18.5.2006. She was brought to her inlaws house at Mauza Hariharpur and she
started living with her husband. Out of the
said wedlock, opposite party No.1 was
born. She is stated to be of four years of
age in the year 2011 when the suit was
instituted. Santosh Kumar, husband of
opposite party no.2 and father of opposite
party no.1 died on 29.12.2007. Since the
opposite parties do not have any source of
livelihood, they filed the suit in question.

3. The petitioner filed an application
dated 25.4.2017 alleging that opposite
party no.2 had before entering into
matrimonial alliance with his son Santosh
Kumar married different persons and even
after death of Santosh Kumar, she had
remarried. It was alleged that opposite
party No.1 was not born out of the
wedlock between opposite party No.2 and
his son Santosh Kumar. Therefore prayer
was made for getting DNA test of
opposite party no.1 conducted by a team
of medical experts.

4. The application was opposed by
the opposite parties. They brought on
record
extract
from
family
register
wherein opposite party No.1 is shown as
daughter of Santosh Kumar.

5. The trial court, placing reliance
on the judgement of the Supreme Court in
Goutam Kundu vs State of West
Bengal, 1993 ACC 416 held that the
presumption under Section 112 of the
Indian Evidence Act, 1872 is attracted in
such matters and unless it is shown that
the parties to the marriage had no access
to each other at any time when the
1506 INDIAN LAW REPORTS ALLAHABAD SERIES
daughter was born, there is no need of
getting conducted DNA test. The court
has also observed that prima facie the
documentary evidence also establishes
that opposite party No.1 is daughter of
Late Santosh Kumar and has accordingly
rejected the application.

6. Learned counsel for the petitioner
submitted that in extract of family
register, date of birth of opposite party
No.1 is shown as 24.4.2004 i.e., a date
before the marriage between opposite
party No.2 and Santosh Kumar was
solemnized.
In
other
words,
the
submission is that since opposite party
No.1 was born before marriage between
opposite party No.2 and Santosh Kumar,
therefore she was not born out of wedlock
between them.

7. Section 112 of the Evidence Act,
1872 reads thus :-

"112. Birth during marriage, conclusive
proof of legitimacy-- The fact that any person
was born during the continuance of a valid
marriage between his mother and any man, or
within two hundred and eighty days after its
dissolution, the mother remaining unmarried,
shall be conclusive proof that he is the
legitimate son of that man, unless it can be
shown that the parties to the marriage had no
access to each other at any time when he
could have been begotten."

8. The Supreme Court in Bhabani
Prasad Jena vs. Convenor Secretary,
Orissa State Commission for Women
and another, 2010 8 SCC 633 has held
as follows :-

"22. In our view, when there is
apparent conflict between the right to
privacy of a person not to submit himself
forcibly to medical examination and duty
of the court to reach the truth, the court
must exercise its discretion only after
balancing the interests of the parties and
on due consideration whether for a just
decision in the matter DNA test is
eminently needed. DNA test in a matter
relating to paternity of a child should not
be directed by the court as a matter of
course or in a routine manner, whenever
such a request is made. The court has to
consider
diverse
aspects
including
presumption under Section 112 of the
Evidence Act; pros and cons of such
order and the test of "eminent need"
whether it is not possible for the court to
reach the truth without use of such test."

9. Again, in Dipanwita Roy vs
Ronobroto Roy, 2015 (1) SCC 365, the
Supreme Court, while reiterating the test
of 'eminent need', held as follows :-

"It is borne from the decisions
rendered by this Court in Bhabani Prasad
Jena and Nandlal Wasudeo Badwaik that
depending on the facts and circumstances
of the case, it would be permissible for a
Court to direct the holding of a DNA
examination, to determine the veracity of
the allegation(s), which constitute one of
the grounds on which the concerned party
would either succeed or lose. There can
be no dispute that if the direction to hold
such a test can be avoided it should be so
avoided. The reason, as already recorded
in various judgments by this Court is that
the legitimacy of a child should not be be
put to peril."

10. I have gone through the
pleadings made in the written statement
and I do not find any categorical plea to
the effect that the parties had no access to
each other during the marriage. The only
2 All. Gaya Prasad Tiwari Vs Allahabad Development Authority
1507
assertion in the written statement is that
after some time, opposite party No.2 left
the matrimonial house alongwith her
goods. The exact date on which she left
the matrimonial house has not been
disclosed. There is also no assertion in the
written statement that during the period
they
were
living
together
in
the
matrimonial house, they had no access to
each other. The specific case of the
opposite parties as per assertions made in
the plaint is that opposite party No.1 was
four years of age at the time of filing of
the plaint. It would mean that opposite
party No.1 was born in the year 2007.
Santosh Kumar is alleged to have died on
29.12.2007 while the presumption under
Section 112 of the Evidence Act would
stand attracted even where any person
was born within 280 days after the
marriage had come to an end (in the
instant case on account of death of
Santosh Kumar). The alleged entry
relating to date of birth of opposite party
No.1 in the family register is in serious
dispute and the said aspect is yet to be
examined during trial on basis of evidence
to be led by the parties.

11. A DNA test to determine paternity
of child should not be directed as a matter
of course. The court has to consider various
diverse aspects including presumption
under Section 112 of the Evidence Act. At
this juncture applying the test of 'eminent
need' laid down by the Supreme Court in
Bhabani Prasad Jena (supra), this court
finds no illegality in the view taken by the
court below to warrant interference in
exercise of supervisory power under Article
227 of the Constitution.

12. The petition lacks merit and is
accordingly dismissed.
----------
(2019)10ILR A 1507

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.08.2019

BEFORE

THE HON'BLE MANOJ KUMAR GUPTA, J.

Mattes Under Article. 227 No. 5026 of 2019

Gaya Prasad Tiwari ...Petitioner
Versus
Allahabad Development Authority
 ...Respondent

Counsel for the Petitioner:
Sri B.S. Pandey

Counsel for the Respondent:
Sri Devi Prasad Mishra, Sri Brijendra
Kumar

A. Code of Civil Precedure - despite order
to proceed exparte against the defendantrespondent-if
evidence
not
concludeddefendant can always appear and cross
examine witness and can recall proceedings-if
shown good cause to the court.

Held: - that even though where the evidence
of the plaintiff had not concluded, the
defendant against whom exparte proceedings
are being held, can always appear before the
trial court and pray for cross-examining the
plaintiff's witnesses. The said right of the
defendant is not taken away merely for the
reason that an order was passed on a previous
date for holding exparte proceedings against
him.

Writ Petition dismissed (E-8)

List of Cases Cited: -

1. Arjun Singh Vs. Mohindra Kumar and
others, AIR 1964 SC 993

(Delivered by Hon'ble Manoj Kumar
Gupta, J.)