The only issue which has been canvassed as appears from
order dated 21.10.2019 is that whether a Court in a divorce
petition under Section 13 of the Hindu Marriage Act, 1955 filed
by the husband on the ground of adultery can direct that the
wife, either to undergo a D.N.A. test or refuse to undergo a
D.N.A. test, but in case she elects to undergo a D.N.A. test, then
findings of the D.N.A. test will determine conclusively the
veracity of accusation leveled by the petitioner-husband against
her. It is further mentioned that in case, wife refuses to undergo
a D.N.A. test, then whether a presumption can be drawn by the
Court against the wife that is to say whether report of D.N.A.
test is just a piece of expert evidence or a conclusive or a
substantive piece of evidence.
19. The husband's plea that he had no access to the wife when
the child was begotten stands proved by the DNA test report
and in the face of it, we cannot compel the Appellant to bear
the fatherhood of a child, when the scientific reports prove to
the contrary. We are conscious that an innocent child may not
be bastardized as the marriage between her mother and father
was subsisting at the time of her birth, but in view of the DNA
test reports and what we have observed above, we cannot
forestall the consequence. It is denying the truth. "Truth must
triumph" is the hallmark of justice. (emphasis is ours). This
Court has therefore clearly opined, that proof based on a DNA
test would be sufficient to dislodge, a presumption under
Section 112 of the Indian Evidence Act.
10. Thus, the crux of the matter is that even Supreme Court has
approved D.N.A. Test as the most legitimate and scientifically
perfect means, which the husband could use, to establish his
assertion of infidelity. This should simultaneously be taken as
the most authentic, rightful and correct means also with the
wife, for her to rebut the assertions made by the respondenthusband, and to establish that she had not been unfaithful, adulterous or disloyal.
ALLAHABAD HIGH COURT
Case :- MATTERS UNDER ARTICLE 227 No. - 7442 of 2019
Smt. Neelam Vs Ram Asrey
Coram: Hon'ble Vivek Agarwal,J.
Order Date :- 21.10.2020
1. None for the petitioner even when the list is revised. Sri
Vijay Bahadur Shivhare, learned counsel for the respondent is
present.
2. This petition under Article 227 of the Constitution of India
has been filed challenging order dated 22.09.2018 passed by
learned Additional Principal Judge, Family Court/F.T.C. IInd,
Hamirpur in Case No. 104 of 2015, Ram Asrey vs. Smt.
Neelam under Section 13 of the Hindu Marriage Act, 1955.
3. The only issue which has been canvassed as appears from
order dated 21.10.2019 is that whether a Court in a divorce
petition under Section 13 of the Hindu Marriage Act, 1955 filed
by the husband on the ground of adultery can direct that the
wife, either to undergo a D.N.A. test or refuse to undergo a
D.N.A. test, but in case she elects to undergo a D.N.A. test, then
findings of the D.N.A. test will determine conclusively the
veracity of accusation leveled by the petitioner-husband against
her. It is further mentioned that in case, wife refuses to undergo
a D.N.A. test, then whether a presumption can be drawn by the
Court against the wife that is to say whether report of D.N.A.
test is just a piece of expert evidence or a conclusive or a
substantive piece of evidence.
4. After going through the record and hearing learned counsel
for the respondent certain facts needs to be enumerated as have
been alleged in the divorce petition filed by the husband under
Section 13 of the Hindu Marriage Act. They are; marriage
between the petitioner and the respondent took place on
28.04.2004. Admittedly, three daughters are born from this
wedlock.
5. According to the husband-respondent, he is not living with
his wife i.e. the petitioner since 15.01.2013 and there has been
no resumption of cohabitation since then. On 25.06.2014,
husband had given customary divorce to the petitioner and is
paying maintenance to her since then. A male child was born to
the petitioner on 26.01.2016 in her paternal house.
6. The ground for divorce is adultery.
7. On the other hand, the present petitioner filed her objections
28-C(2), and objected to the application filed by the husband
seeking D.N.A. Test on the ground that no legal provision is
mentioned in the application. She denied that there has been no
co-habitation between the parties since 15.01.2013. She claimed
that when she was pregnant then she was tortured by her
husband and was driven out of the matrimonial home, therefore,
she gave birth to a male child on 26.01.2016. Plea of
presumption under Section 112 of the Evidence Act too has
been raised by the present petitioner.
8. Learned family court has placed reliance on the judgment of
Supreme Court in case of Dipanwita Roy Vs. Ronobroto Roy,
2015 (1) SCC D 39 (SC), wherein husband had filed divorce
petition on the ground of adultery. The adulterer was named and
then husband had moved an application for D.N.A. Test of
himself and male child born to the wife. Family Court had
dismissed the application. High Court reversed the orders of the
family court. Supreme Court upheld the order of the High Court
despite the pleading of the wife that husband had access to her,
whereas the husband had denied the same categorically.
9. Reliance has also placed on the judgment of Supreme Court
in case of Nandlal Wasudeo Badwaik Vs. Lata Nandlal
Badwaik and another, 2014 (2) SCC 576, wherein, Supreme
Court observed as under:-
15. Here, in the present case, the wife had pleaded that the
husband had access to her and, in fact, the child was born in
the said wedlock, but the husband had specifically pleaded that
after his wife left the matrimonial home, she did not return and
thereafter, he had no access to her. The wife has admitted that
she had left the matrimonial home but again joined her
husband. Unfortunately, none of the courts below have given
any finding with regard to this plea of the husband that he had
or had not any access to his wife at the time when the child
could have been begotten.
16. As stated earlier, the DNA test is an accurate test and on
that basis it is clear that the Appellant is not the biological
father of the girl-child. However, at the same time, the
condition precedent for invocation of Section 112 of the
Evidence Act has been established and no finding with regard
to the plea of the husband that he had no access to his wife at
the time when the child could have been begotten has been
recorded. Admittedly, the child has been born during the
continuance of a valid marriage. Therefore, the provisions of
Section 112 of the Evidence Act conclusively prove that
Respondent No. 2 is the daughter of the Appellant. At the same
time, the DNA test reports, based on scientific analysis, in no
uncertain terms suggest that the Appellant is not the biological
father. In such circumstance, which would give way to the other
is a complex question posed before us.
17. We may remember that Section 112 of the Evidence Act was
enacted at a time when the modern scientific advancement and
DNA test were not even in contemplation of the Legislature.
The result of DNA test is said to be scientifically accurate.
Although Section 112 raises a presumption of conclusive proof
on satisfaction of the conditions enumerated therein but the
same is rebuttable. The presumption may afford legitimate
means of arriving at an affirmative legal conclusion. While the
truth or fact is known, in our opinion, there is no need or room
for any presumption. Where there is evidence to the contrary,
the presumption is rebuttable and must yield to proof. Interest
of justice is best served by ascertaining the truth and the court
should be furnished with the best available science and may not
be left to bank upon presumptions, unless science has no
answer to the facts in issue. In our opinion, when there is a
conflict between a conclusive proof envisaged under law and a
proof based on scientific advancement accepted by the world
community to be correct, the latter must prevail over the
former.
18. We must understand the distinction between a legal fiction
and the presumption of a fact. Legal fiction assumes existence
of a fact which may not really exist. However presumption of a
fact depends on satisfaction of certain circumstances. Those
circumstances logically would lead to the fact sought to be
presumed. Section 112 of the Evidence Act does not create a
legal fiction but provides for presumption.
19. The husband's plea that he had no access to the wife when
the child was begotten stands proved by the DNA test report
and in the face of it, we cannot compel the Appellant to bear
the fatherhood of a child, when the scientific reports prove to
the contrary. We are conscious that an innocent child may not
be bastardized as the marriage between her mother and father
was subsisting at the time of her birth, but in view of the DNA
test reports and what we have observed above, we cannot
forestall the consequence. It is denying the truth. "Truth must
triumph" is the hallmark of justice. (emphasis is ours). This
Court has therefore clearly opined, that proof based on a DNA
test would be sufficient to dislodge, a presumption under
Section 112 of the Indian Evidence Act.
10. Thus, the crux of the matter is that even Supreme Court has
approved D.N.A. Test as the most legitimate and scientifically
perfect means, which the husband could use, to establish his
assertion of infidelity. This should simultaneously be taken as
the most authentic, rightful and correct means also with the
wife, for her to rebut the assertions made by the respondenthusband,
and to establish that she had not been unfaithful,
adulterous or disloyal.
11. When the impugned order is tested on the touchstone of the
legal pronouncement of the Supreme Court, same cannot be
faulted with, therefore, I do not find any illegality, infirmity or
arbitrariness to interfere with the impugned order dated
22.09.2018 passed by the learned Additional Principal Judge,
Family Court/Fast Track Court-II, Hameepur.
12. Petition fails and is dismissed.
Order Date :- 21.10.2020
Ashutosh
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