Allowed

Rajesh Kumari W/O Rajendra Kumar v. Badrunnisha W/O Bundu

Rajasthan HC2 Aug 2024CW/8744/2023

Case brief

AI extract

What is this about?

The High Court of Rajasthan allowed a writ petition challenging a trial director ordering DNA tests on a child and parents. The court held such tests are irrelevant to election disputes, infringe privacy rights, and are prejudicial to the child's future, relying on Supreme Court and coordinate bench precedents.

What did the court decide?

The writ petition is allowed. The impugned order dated 05.05.2023 directing DNA tests is quashed and set aside. Pending applications are disposed of.

Rajesh Kumari W/O Rajendra Kumar Vs Badrunnisha… — Writ and Judicial Review | Rajasthan HC (2024)

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[2024:RJ-JP:33414]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Writ Petition No. 8744/2023

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Rajesh Kumari W/o Rajendra Kumar, Resident Of Ward No 7 Village Gadarwada Noorji Tehsil Khanpur District Jhalawar (Raj)

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----Petitioner

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Versus

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1. Badrunnisha W/o Bundu, Aged About 51 Years, Resident Of Ward No 8 Village Gadarwada Noorji Tehsil Khanpur District Jhalawar (Raj.)

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Chief Election Officer(Panchayat) (District Collector), Jhalawar Mini Sachivalay Kota Road Jhalawar Tehsil Jhalrapatan District Jhalawar (Raj.)

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----Respondents

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For Petitioner(s)	: Mr. Rohit Khandelwal
For Respondent(s)	: Mr. Prashant Sharma
	Mr. Ravi Singh
	Mr. Yashovardhan Agarwal

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HON'BLE MR. JUSTICE ANIL KUMAR UPMAN

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Order

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02/08/2024

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The instant writ petition has been filed by the petitioner/nonapplicant No.1 challenging the validity and legality of the order dated 05.05.2023, passed by learned District & Sessions Judge, Jhalawar in Civil Election Petition No.22/2020, directing DNA tests of child (X) and his parents along with the petitioner and her husband. Vide the impugned order dated 05.05.2023, the learned District and Sessions Judge, Jhalawar has passed the following directions:-

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“5…………………. it is ordered that the child Dhule Raj his so called mother father Mrs.Mamta and Chander Parkash and the non applicant/non petitioner No.1 Rakesh Kumari with her husband Rajender Kumar

(2 of 5)

[2024:RJ-JP:33414]

[CW-8744/2023]

Meena shall undergo the DNA test in presence of learned counsels of both the party, the Civil Clerk of this Court, the pathologist, Civil Surgeon of Government Hospital, Jhalawar on the date fixed by the superintended of hospital, Jhalawar. The DNA samples shall be taken in confidentially.

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In the year 2020, the petitioner participated in panchayat elections and after winning the same, she was elected as Sarpanch, Gram Panchayat Gadarwada Noorji, Panchayat Samiti Khanpur, Jhalawar. The respondent No.1 also participated in the said election but she could not win the said election. Thereafter, she filed election petition on various grounds before the learned District and Sessions Court Jhalawar. One of the grounds, challenging the election of the petitioner was that the petitioner has declared that she has two children whereas she has one more child and the petitioner has concealed this fact and gave wrong information. The respondent No.1 also moved an application before the learned trial court regarding DNA test of said child and his parents along with the petitioner and her husband. The learned trial court vide its order impugned dated 05.05.2023 allowed the application and directed for DNA tests, as mentioned above.

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After hearing submissions advanced by learned counsel for the parties and perusing the material available on record, this Court is of the considered opinion that the learned trial court has gravely erred in passing such direction of conducting DNA test of the persons (child and his parents) who are totally alien to the election petition proceedings. The child and his parents has

[2024:RJ-JP:33414]

[CW-8744/2023]

(3 of 5)

nothing to do with the election petition proceedings. Such directions are as good as infringement of right to privacy. The DNA test of the child and his parents would prejudice not only their privacy rights but it would also prejudicial to the future of the child subjected to the test.

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In case of Deepak Soni vs Anamika (S.B. Civil Writ Petition No.1015/2023, decided on 26.05.2023), the Coordinate Bench of this Court at Jodhpur, even in a matrimonial dispute, declined to pass orders for conducting DNA paternity test of a child. The Coordinate Bench observed that the child cannot be used as a pawn in a divorce litigation, where either of the parents want to get rid of the spouse as it would not only cause an unfathomable misery upon the rights of the child, but also create a permanent dent in his existence/Psyche. The Bench also observed that the pain of winning or losing a battle of divorce amongst the contesting spouses is much trivial when compared with the rights of the child to have dignity and parenthood.

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Thus, when in matrimonial dispute, such prayer can be turned down, then what to talk about such thing in a case pertaining to election matter. The Courts must refrain themselves to pass such a direction for DNA paternity test especially when such direction would be invasive to the physical autonomy of a person. Such directions may be passed only in exception circumstances. Merely because something is permissible under the law cannot be directed as a matter of course to be performed. The respondent-applicant cannot be allowed to take such recourse in proving her case. She may produce any other evidence in support of her case. The Hon’ble Supreme Court in the case of Inayath

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[CW-8744/2023]

(4 of 5)

Ali & Anr. versus State of Telangana & Anr. : 2022 LiveLaw (SC) 869 has observed that the children are not the material objects to be sent for forensic analysis. The Hon’ble Apex Court has observed as under:-

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“6. In the present proceeding, we are taking two factors into account which have been ignored by the Trial Court as also the Revisional Court. The Trial Court allowed the application of the respondent no.2 mechanically, on the premise that the DNA fingerprint test is permissible under the law. High Court has also proceeded on that basis, referring to different authorities including the case of Dipanwita Roy v. Ronobroto Roy [2015 (1) SCC 365]. The ratio of this case was also examined by the Coordinate Bench in the decision of Ashok Kumar (supra).

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The first factor, which, in our opinion, is of significance, is that in the judgment under appeal, blood sampling of the children was directed, who were not parties to the proceeding nor were their status required to be examined in the complaint of the respondent no.2. This raised doubt on their legitimacy of being borne to legally wedded parents and such directions, if carried out, have the potential of exposing them to inheritance related complication. Section 112 of the Evidence Act, also gives a protective cover from allegations of this nature. The said provision stipulates:“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.”

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In our opinion, the Trial Court as also the Revisional Court had completely ignored the said factor and proceeded as if the children were material objects who could be sent for forensic analysis. The other factor, in our opinion, which was ignored by the said two Courts is that the paternity of the children was not in question in the subject-proceeding.

(5 of 5)

[2024:RJ-JP:33414]

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The substance of the complaint was not related to paternity of the children of the respondent no.2 but the question was whether the offences under the aforesaid provisions of the 1860 Code was committed against her or not. The paternity of the two daughters of the respondent no.2 is a collateral factor to the allegations on which the criminal case is otherwise founded. On the basis of the available materials, in our opinion, the case out of which this proceeding arises could be decided without considering the DNA test report. This was the reasoning which was considered by the Coordinate Bench in the case of Ashok Kumar (supra), though that was a civil suit. Merely because something is permissible under the law cannot be directed as a matter of course to be performed particularly when a direction to that effect would be invasive to the physical autonomy of a person. The consequence thereof would not be confined to the question as to whether such an order would result in testimonial compulsion, but encompasses right to privacy as well. Such direction would violate the privacy right of the persons subjected to such tests and could be prejudicial to the future of the two children who were also sought to be brought within the ambit of the Trial Court’s direction. 10. We, accordingly, allow the appeal and set aside the judgment of the High Court. Consequentially, the order of the Trial Court passed on 17th October, 2014 in Crl.M.P. No. 92 of 2014 arising out of S.C.No. 70/2012 shall also stand set aside.”

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In view of the aforesaid facts and circumstances of the case, this Court is of the view that writ petition deserves acceptance. Accordingly, the writ petition is allowed. The impugned order dated 05.05.2023 passed by learned District & Sessions Judge, Jhalawar in Election Petition No.22/2020 is quashed and set aside. Pending application (s), if any, also stands disposed of. There is no order as to costs.

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(ANIL KUMAR UPMAN),J

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LALIT MOHAN /232

Rajesh Kumari W/O Rajendra Kumar v. Badrunnisha W/O Bundu

Case brief

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Rajesh Kumari W/O Rajendra Kumar v. Badrunnisha W/O Bundu

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