Mumbai: Bombay High Court has set aside a civil court’s order for DNA testing on a youth’s claim that he is the illegitimate son of a deceased hotelier and entitled to one-fifth of his properties.“The law is settled that a DNA test is not to be directed in a routine matter. Parties should be directed to first prove the factum of paternity. Only if the court is unable to draw inference based on such evidence and comes to a conclusion it is impermissible to resolve the controversy, it may direct a DNA test but not otherwise,” said Justice Sandeep Marne on Tuesday. He allowed a petition filed by the hotelier’s legal heirs — wife and three children.The teenager in 2016 (then 9 years old) filed a partition suit, through his mother, in Nashik civil court. He stated that due to the extramarital relationship between the hotelier and his mother, he was born in Feb 2007. The hotelier passed away in May 2016. After his family denied the plaintiff’s claim of being his illegitimate son, in March 2018 he applied for a DNA test to prove it. The trial court, on Sept 4, 2018, directed the regional forensic science laboratory to conduct a DNA test of the plaintiff and any of the three children. The family moved HC.Justice Marne agreed with their advocate Rajan Pawar that without making an attempt to prove his assertions, the plaintiff directly applied for the conduct of a DNA test. The plaintiff’s advocate Amey Deshpande said a DNA test is the only way he can prove his status as an illegitimate son.Justice Marne said the plaintiff would have to lead evidence to prove his various averments, including the extramarital relationship and that his birth is attributable only to it. “Mere assertion by the plaintiff and denial thereof by defendants cannot be a reason for the court to undertake the exercise of collection of evidence by directing parties to DNA test,” he added.Referring to the law on DNA testing, Justice Marne said “it should be considered only in exceptional and deserving cases where evidence is insufficient to resolve the controversy.” However, he granted the teenager liberty to apply afresh for a DNA test after “demonstrating that evidence on record makes it impossible for the trial court to decide the controversy.”
