Monday, 16 November 2020

Whether the court can direct wife to undergo DNA test in Divorce proceeding on the ground of adultery?

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

Print Page

No comments:

Post a comment