The Orissa High Court has maintained that directing the DNA test of a child on the face of admission of the mother would be an insult to her motherhood and against the law.

This was observed by Justice BP Routray, the single bench judge of the Orissa High Court, which rejected a petition to direct DNA test of an opponent party in a property partition case. The opposition party had challenged the trial court's judgment, which rejected to direct the DNA test of a person.

"I do not see this as a fit case to be directed for DNA test of the man in this case. No infirmity is seen in the order of the learned trial court refusing the prayer of the petitioner. Resultantly, the Civil Miscellaneous Petition (CMP) is dismissed," Justice Routray said in a judgment on September 1.

The court also said that the man in question is now 58 years old. So the trial court has rightly observed that direction for DNA test at this stage would not bring any fruitful result, the order said.

In the case at hand, Justice Routray said, admittedly, the suit is for partition where the opposition party disputes the parentage of a man despite the evidence of his mother.

The man's mother has stated in her cross-examination that the man is her son through Thuta Budula. Moreover, the opposition party does not dispute the status of the mother as the wife of Thuta Budula, who is dead now, nor does he dispute valid marriage between Thuta Budula and the mother at any point of time.

The opposition party, being a third person, is also not authorised to do so, the court observed and maintained that in such a situation, directing a DNA test of the child on the face of admission of the mother would be an insult to her motherhood and against the law enumerated in section 112 of the Evidence Act.

Apart from this, the court said, it is inconceivable how the DNA test would be relevant in a case of partition where the status of the parties as members of joint family is required to be seen to determine their respective shares.

"It is important to be reminded here that recognition of a person as son of another is not required to be determined through blood relation only, and what is important is his recognition in the society as such," the court said.

The court also said, "In our view, when there is apparent conflict between the right to privacy of a person not to submit himself forcibly to medical examination and duty of the court to reach the truth, the court must exercise its discretion only after balancing the interests of the parties and on due consideration whether for a just decision in the matter, DNA test is eminently needed".

It said that DNA test in a matter relating to the paternity of a child should not be directed by the court as a matter of course or in a routine manner, whenever such a request is made.

The court has to consider diverse aspects, including presumption under Section 112 of the Evidence Act; pros and cons of such order and the test of "eminent need", whether it is not possible for the court to reach the truth without use of such test, Justice Routray said in the judgment.