Shashwati Chowdhury
Published on: July 29, 2022 at 19:00 IST
The Madhya Pradesh High Court’s Gwalior Bench recently upheld the lower court’s decision to reject an application to compel an individual to submit to a DNA test in connection with an ongoing partition lawsuit.
The presumption established by Section 112 of the Evidence Act is rebuttable, according to the Court, and the petitioner will have every chance to do so during the trial.
According to the case’s facts, the petitioner’s husband had filed a civil suit for partition. After his death, an application was made to appoint the Petitioner as his legal representative. One of the respondents objected to the same, saying that Hemlata should not have been impleaded as the legal representative because she was the petitioner’s husband’s daughter.
The Petitioner subsequently made a application in accordance with Order XXVI Rule 10(A) CPC r/w Section 45 of the Evidence Act, saying that Hemlata was not her daughter and therefore prayed for her DNA test to ascertain that she was not the daughter of her husband either.
However, the trial court denied her application. Aggrieved, the petitioner brought a petition before the court to challenge the aforementioned decision of rejection.
The petitioner argued before the court that a DNA test order could be given in cases where there is a dispute over both the paternity of the person and the ownership of the property. She cited the court’s decision in Radheshyam v. Kamla Devi & Ors. to support her argument.
The Single Bench Judge G.S. Ahluwalia held that the decision of the lower court was in consonant with the jurisprudence established by the Apex Court on the relevant issue and the provisions under the Evidence Act.
“It is not the case of the petitioner that Hemlata Yadav was born prior to her marriage with late Kaptan Singh. The presumption as provided under Section 112 of Evidence Act is a rebuttable presumption and the petitioner will get every opportunity to rebut the said presumption in the trial.”
Therefore, this Court believed that by rejecting the application to order Hemlata Yadav to submit to a DNA test, the Trial Court did not err in its exercise of jurisdiction. With the aforementioned observations, the petition was dismissed accordingly, the petitioner’s prayer being rejected.