Smt. Rajni Agarwal vs Smt. Sushma Agarwal and Others

Krishna Murari, J.—Heard learned Counsel for the Petitioner.

Factual matrix of the case giving rise to the dispute, are as under.

The Plaintiff (Respondent No. 1 herein) filed suit seeking a decree to be declared the sole surviving legal heirs of her deceased husband Vijay Shanker Agarwal and entitled to all monetary benefits and to all assets left behind by the deceased. A decree of permanent injunction was also claimed to restrain the Defendants No. 1 and 2 (Respondents No. 3 and 4 herein) from disbursing the monetary benefits after the death of Vijay Shanker Agarwal or to give employment in his place either to Defendant No. 3 or to any other person. During the pendency of the proceedings, an amendment application was moved to implead the Plaintiff No. 2 in the array of parties on the ground that she was born out of wedlock of Respondent No. 1 and late Vijay Shanker Agarwal. The Respondent No. 5 herein also got impleaded herself on the allegation that she was the daughter out of wedlock between Petitioner-Defendant No. 3 and late Vijay Shanker Agarwal. The suit was filed by the Plaintiff-Respondent on the allegation that late Vijay Shanker Agarwal was initially married with Petitioner-Defendant No. 3 Smt. Rajni Agarwal but later on marriage was dissolved in proceedings of case No. 159 of 1994 vide order dated 21.5.1995 passed by Civil Judge (Senior Division), Budaun and thereafter on 2.10.1995 late Vijay Shanker Agarwal married the Plaintiff-Respondent No. 1 and were living as husband and wife. During the pendency of the suit proceedings, an application was filed by Defendant-Petitioner with a prayer that Plaintiff No. 2 Km. Rakhi Agarwal impleaded in the proceedings on that allegation that she was born out of wedlock of Plaintiff No. 1 and late Vijay Shanker Agarwal be subjected to D.N.A. test and the same be matched with D.N.A. sample of Defendant No. 5 by a recognized laboratory. Trial court dismissed the application. The Petitioner went up in revision which has also been dismissed. Aggrieved by the two orders, the present petition has been filed.

Both the courts below have rejected the application on the ground that Plaintiff No. 1 sought a declaration to be legally wedded wife of the deceased and that Plaintiff No. 2 (Respondent No. 2 herein) was born out of their wedlock and thus the only controversy requiring proof was whether the Plaintiff-Respondent No. 1 was legally wedded wife of deceased and Plaintiff No. 2 was born out of wedlock. If the Plaintiff fails to establish the foundation on which the suit has been filed it will fail and thus, there was no good reason or ground for comparison of D.N.A. of Plaintiff-Respondent No. 2 herein and Respondent No. 5 herein (both of whom were claiming daughters of late Vijay Shanker Agarwal).

Since what was required to be proved by the Plaintiff was a valid and legal marriage with late Vijay Shanker Agarwal as such two courts below do not appear to have committed any illegality in rejecting the application for comparison of D.N.A. of Respondent No. 2 herein and Defendant-Respondent No. 5, herein, in order to establish their paternity and there was no dispute in this regard. The revisional court has further rightly held that in case the Plaintiff-Respondent No. 1 is able to establish her legal and valid marriage the provisions of Section 112 of the Evidence Act will automatically come into play in order to establish the paternity of Plaintiff-Respondent No. 2.

The Hon''ble Apex Court in the case of Banarsi Dass v. Teeku Dutta and Anr. 2005 (3) ALD 78 (SC), while considering the dispute with respect to estate of the parties claiming succession certificate has observed as under:

In order to succeed in the succession application the applicant has to adduce cogent and credible evidence in support of the application. The Respondents, if they so choose, can also adduce evidence to oppose grant of Succession Certificate. The, trial court erroneously held that the documents produced by the Respondents were not sufficient and relevant for the purpose of adjudication and D.N.A. test was conclusive. This is not a correct view. It is for the parties to place evidence in support of their respective claims and establish their stands. D.N.A. test is not to be directed as a matter of routine and only in deserving cases such a direction can be given.

Reference may also be made to the judgment of the Hon''ble Apex Court in the case of Goutam Kundu Vs. State of West Bengal and another, wherein the question of conducting blood test to establish paternity of the child has been summarized as under:

From the above discussion it emerges:

(1) that courts in India cannot order blood test as a matter of course;

(2) where-ever applications are made for such prayers in order to have roving inquiry, the prayer for blood test cannot he entertained.

(3) There must be a strong prima facie case that the husband must establish non-access in order to dispel the presumption arising u/s 112 of the Evidence Act.

(4) The Court must carefully examine as to what would be the consequence of ordering the blood test; whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman.

(5) No one can be compelled to give sample of blood for analysis.

In the case in hand, since the dispute was not in respect of paternity of Plaintiff-Respondent No. 2 and Defendant-Respondent No. 5 and only thing required to be established in order to succeed in the suit was a valid marriage between the Plaintiff and deceased Vijay Shanker Agarwal. The case did not fall in the category where D.N.A. test was required to be ordered.

In view of the above, two courts below have committed no illegality in rejecting the application filed by the Petitioner and the impugned orders do not call for any interference. The writ petition accordingly fails and stands dismissed in limine.