1. This is a petition filed by Smt. Kanchan Bedi and her son Master Aman Bedi born on 1-7-2000 alleging that Smt. Kanchan Bedi was married to Shri Gurpreet Singh Bedi, the Defendant herein, on 22-9-1999 at Gurudwara Hemkunt Saheb. The husband, Shri Gurpreet Singh Bedi Defendant No. 1 and Plaintiff No. 1 are stated to have come back to Delhi on 27-9-1999 and to have started residing together at AG-557-D, Shalimar Bagh, New Delhi. The Defendant has denied that any marriage has taken place between him and Smt. Kanchan, and that she had liaisons with other men; and that he has not sired the child, Master Aman. It has also been alleged in the Written Statement that Ms. Kanchan was previously married. This is not disputed and a photocopy of her Decree of Divorce under Section 13-B of the Hindu Marriage Act has been filed today. There appears to be no documentary evidence to substantiate that the marriage took place at Hemkunt Saheb on 22-9-1999. For the present, even if it is assumed that no marriage took place, if it is otherwise established that the Defendant is the biological father of Master Aman, his liability and pious obligations to maintain his son would remain unaffected. If it is proved by the Plaintiff that the marriage did take place as alleged in the plaint, the effect would be that there would be an automatic presumption, albeit rebuttable, about the legitimacy of Master Aman. The Birth Certificate of Plaintiff No. 2 is on record and it declares the Defendant as the father. The registration of this birth has taken place as far back as on 27-7-2000. So far as the denials contained in the Reply to the petition are concerned this is as far as the controversy extends.

2. In order to establish the parentage of the infant Aman an application has ben filed by the Plaintiff praying that a DNA test should be ordered. This has been strenuously opposed by the Defendant whose counsel has firstly contended that the prayer is precipitate inasmuch as Issues have yet to be framed in the suit. I find no merit in this submission for the reason that the law contemplates the grant of interim maintenance and if the Plaintiff is to wait till close to the conclusion of the suit, this right would be illusory. Reliance is placed on the decision of the Honble Supreme Court in Goutam Kundu v. State of West Bengal (1993) 3 SCC 418 [LQ/SC/1993/490] : (AIR 1993 SC 2295 [LQ/SC/1993/490] ) by the Defendant, in particular to its paragraphs 18 and 26. In order to arrive at a proper understanding of that pronouncement these paragraphs are reproduced below.

"18. Blood grouping test is a useful test to determine the question of disputed paternity. It can be relied upon by courts as a circumstantial evidence which ultimately excludes a certain individual as a father of the child. However, it requires to be carefully noted no person can be compelled to give sample of blood for analysis against his/her will and no adverse inference can be drawn against him/her for his refusal."

"26. From the above discussion it emerges :-

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

(2) wherever applications are made for such prayers in order to have roving inquiry the prayer for blood test cannot be entertained.

(3) There must be a strong prima facie case in that the husband must establish non-access in order to dispel the presumption arising under Section 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."

The facts of Kundus case (supra) was that the marriage of the spouses was admitted. An application had been filed by the husband seeking a DNA test, which the Court rejected. What must have obviously weighed in the mind of the Court was that the legitimacy of the child was presumed and to subject a wife to a DNA test to establish paternity would tantamount to needlessly outraging her modesty. Even when paragraph 26 is considered it would be apparent that the first factor has been qualified and fettered by the succeeding three factors. Therefore, to construe the pronouncement as laying down that a DNA test cannot be conducted if it is contested by one of the parties would be misconstruing the judgment. In my view an important distinguishing feature between Kundus case (supra) and the present one is that here, a minor, nay an infant, has invoked the parens patriae jurisdiction. Therefore, it becomes necessary for the Court, as the parent of the infant, to take every conceivable step to ensure the childs welfare.

3. On behalf of the Plaintiff reliance has been placed on a subsequent decision of the Honble Supreme Court in Mr. X v. Hospital Z , AIR 1999 SC 495 [LQ/SC/1998/975] . The decision was given in facts which are singular but which are likely to occur more and more frequently. The prospective husband had been diagnosed as HIV positive and the question that arose was whether the hospital which was in possession of this information was duty bound to disclose these facts to the prospective wife. On the one hand the Court kept in mind the Hipporatic Oath and on the other, the almost absolute certainty that if conjugal relations took place between these two persons it would have the effect of subjecting the woman to certain death. The Apex Court recognised that- "In the face of these potentialities the Right of Privacy is an essential component of right to life envisaged by Art.21." It is observed nonetheless that - "The right, however, is not absolute and may be lawfully restricted for the prevention of crime, disorder or protection of health or morals or protection of rights and freedoms of others." It is these observations which call to be enforced and meaningfully implemented on behalf of Plaintiff No.2.

4. The facts in Sumitra Devi v. Bhikan Choudhary, (1985) 1 SCC 637 [LQ/SC/1985/27] : (AIR 1985 SC 765 [LQ/SC/1985/27] ) are almost on all fours with the present case. The Honble Supreme Court opined that even an illegitimate minor child has the right to maintenance albeit under Section 125 of the Cr.P.C. I see no reason why the situation should change to the detriment of the minor in civil suits. The Apex Court further observed that - "The role of the court is not that of silent spectator or of passive agency. When a dispute is brought before the Court, particularly where maintenance of a neglected wife or a minor child is in issue, the Court must take genuine interest to find out the truth of the matter" (underlining added). In deciding disputes pertaining to minor children the Court must be ever vigilant and mindful of the fact that it exercises one of its oldest jurisdictions, that of parens patriae. The pronouncement of the Honble Supreme Court in Bakulabai v. Gangaram (1988) 1 SCC 537 [LQ/SC/1988/63] went to the extent of extending the protection of Section 125, Cr.P.C. to the wife and child of a bigamous marriage. Welfare legislations such as the Hindu Adoptions and Maintenance Act should not be stultified on technicalities.

5. In Geeta Saha v. NCT of Delhi (DB), 1999 (1) JCC 101 a Division Bench of this Court had ordered that a DNA test be conducted on a foetus of a rape victim. In Ms. X v. Mr. Z (2002) 96 DLT 354 : (AIR 2002 Delhi 217) a sinlge Judge of this Court had allowed a similar application and had directed that at the cost of husband, the Pathology Department of All India Institute of Medical Sciences should conduct the DNA test. The DNA test was to be conducted of a foetus. A fortiori , where the welfare of a child is in issue, a similar test should be ordered. In his well reasoned judgment, Honble Mr. Justice V. S. Aggarwal had considered the decision of the Honble Supreme Court in both the above cases.

6. In Crl. M. (M). No. 3029/993 my learned brother R.S. Sodhi, J. had passed an order dated 17-5-2002 keeping in mind that litigations should be cut short and had ordered a DNA test to be performed to ascertain the parentage of the minor child. He had directed the State to take the alleged father as also the minor child to the All India Institute of Medical Science for having these tests conducted.

7. From this brief narration of precedents, it appears to me to be difficult to resist that the law, as it presently stands, does not contemplate an impediment or violation of rights in directing persons to submit themselves for DNA test, especially where the parentage of a child is in controversy for the grant of maintenance.

8. Learned counsel for the Plaintiff had vehemently contended that in the event of it being proved that he is not the father of the minor Master Aman, he would be victim of defamation. The Defendant has his rights in law and I need not dilate on them here. It has further been argued that in such an event the child may run the risk of being declared a bastard. By the defence taken in the Written Statement, this has already transpired. The Defendant has not displayed any concern for the minor child heretofore and, therefore, is presently espoused worry and concern appears to be self-centered and crocodilian.

9. In these circumstances the Defendant is directed to present himself at the All India Institute of Medical Science, Department of Forensic Medicine and Toxicology at 3 p.m. on 19-2-2003. The Plaintiff No. 1 is also directed to be present at that time and place along with Plaintiff No. 2. Samples be taken from the Defendant as well as the Plaintiff No. 2. The Report be submitted to this Court at the earliest preferably not later than three weeks from the drawing of the samples. A copy of this Order be despatched forthwith to the Director of AIIMS for his kind attention and implementation.

10. Renotify on 20-3-2003, for further consideration.

11. Dasti to the Plaintiff.

Order accordingly.