Determination Of Paternity Not Moot Point When Factum Of Marriage Itself Is Disputed: P&H High Court Sets Aside Order For DNA Test In Maintenance Plea

The petitioner, on the basis of evidence which she chooses to lead has to establish her marriage as the same is being disputed by the respondent.

The bench comprising Justice Suvir Sehgal further added that determining the paternity of the child is not the moot question in the instant case where the factum of marriage itself is disputed by the respondent.

The petitioner, on the basis of evidence which she chooses to lead has to establish her marriage as the same is being disputed by the respondent. This Court therefore, is of the opinion that determining the paternity of the child is not the moot point.

In the instant case, the petitioner claimed maintenance from the respondent alleging that she is his legally wedded wife and a child was born out of the wedlock. No claim was raised on behalf of the minor. Therefore, the court opined that the petitioner should establish her marriage first because the same is being disputed by the respondent.

Court further considered the judgement in Dipanwita Roy Versus Ronobroto Roy 2014 (4) RCR (Civil) 724 wherein it was held that if the direction to hold DNA test to determine the paternity of the child can be avoided, then it should be avoided so that the legitimacy of a child is not put to peril.

As far as the judgement in Nandlal Wasudeo Badwaik Versus Lata Nandlal Badwaik and another (2014) 2 SCC 576, is concerned, the court held that the facts in both the cases are totally different. Therefore, the reliance placed on this judgement by the counsel for the respondent cannot be accepted.

In view of the above discussion, this Court allowed the petition and concluded that the order passed by the Family Court directing the petitioner to undergo a blood test is not warranted in the facts and circumstances of the present case. Consequently, impugned order cannot be sustained.

Case Title : Smt. Satya Roopa Sinha v. Sarwan Kumar Mehto

Citation: 2022 LiveLaw (PH) 148

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