Monthly Archives: October 2017

Matrimonial Dispute – When can a DNA Test be ordered

In the case of Bhabani Prasad Jena v. Convenor Secretary, Orissa State Commission for Women, (2010) 8 SCC 633, it was observed by the Hon’ble Apex Court that in a matter where paternity of a child is in issue before the Court, the use of DNA Test is an extremely delicate and sensitive aspect. It 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. Any order for DNA test can be given by the Court only if a strong prima facie case is made out for such a course. Satya Pal Yadav v. Smt. Sandhya Yadav, 2017 (123) ALR 860.

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Trespass and Trespasser

A “trespass” is an unlawful interference with one’s person, property or rights. With reference to property, it is a wrongful invasion of another’s possession. In Words and Phrases, Permanent Edition, (West Publishing Company), pp. 108, 109 and 115, in general, a “trespasser” is described, inter alia as follows:
“A ‘trespasser’ is a person who enters or remains upon land in the possession of another without a privilege to do so created by the possessor’s consent or otherwise (Wimmer’s Estate, In re, 182 P2d 119 at 121 : 111 Utah 444.)”
A ‘trespasser’ is one entering or remaining on land in another’s possession without a privilege to do so created by the possessor’s consent, express or implies, or by law. (Keesecker v. G.M. Mckelvey Co., 42 NE 2d 223 at 226,227 : 68 Ohio App. 525.)
A ‘trespass’ is a transgression or wrongful act, and in its most extensive signification includes every description of wrong, and a trespasser is one who does an unlawful act, or a lawful act in an unlawful manner, to the injury of the person or property of another. (Carter v. Haynes, Tex, 269 SW 216 at 220).
In Black’s Law Dictionary (6th Edition), 1990, p. 1504, the term “trespasser” is explained as follows:
“Trespasser.—One who has committed trespass. One who intentionally and without consent or privilege enters another’s property. One who enters upon property of another without any right, lawful authority, or express or implied invitation. Permission or license, not in performance of any duties to owner, but merely for his own purpose, pleasure or convenience.”
In Halsbury’s Laws of England. Vol. 45 (Fourth Edition), pp. 631-32, the following statement is made under the title “What constitutes Trespass to Land”:
“1384. Unlawful entry.—Every unlawful entry by one person on land in the possession of another is a trespass for which an action lies, even though no actual damage is done. A person trespasses upon land if he wrongfully sets foot on it, rides or drives over it or takes possession of it, or expels the person in possession, or pulls down or destroys anything permanently fixed to it, or wrongfully takes minerals from it, or places or fixes anything on it or in it, or if he erects or suffers to continue on his own land anything which invades the airspace of another, or if he discharges water upon another’s land, or sends filth or any injurious substance which has been collected by him on his own onto another’s land.” Ajit Singh v. Union of India, 2017 (4) AWC 4139.

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