Supreme Court: Factors to be considered by the court while directing wife to undergo DNA test to determine paternity of a child

 In Indian matrimonial proceedings, when deciding an application for directing a wife to undergo a DNA or blood test to determine the issue of paternity, the court will consider various factors in accordance with the provisions of the Indian Evidence Act and other relevant legal principles. Here are some of the factors typically considered by the court:

• 1) Prima Facie Case: The party seeking the DNA or blood test must establish a prima facie case, meaning they must provide some initial evidence or circumstances that raise a reasonable doubt about the paternity of the child.

• 2) Welfare of the Child: The court's primary concern is the welfare and best interests of the child. It will consider the child's age, emotional well-being, and any potential harm that may result from the test or its consequences.

• 3) Voluntary Consent: Ideally, the parties involved, including the wife, should consent voluntarily to the paternity test. If the wife is unwilling to undergo the test, the court may weigh her right to bodily integrity against the interests of determining paternity.

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Whether the court can convict wife for defamatory pleadings made by her against the husband in matrimonial proceeding?

Learned Amicus Curiae for the respondent/complainant in Criminal Revision Petition No. 152/2014, in her argument stating that the pleadings filed in a Court and the deposition given in a Court of Law are not privileged one and further stating that a pleading filed in the Court also amounts to publication, has relied upon few judgments in her support as follows.

In the case of Smt. Madhuri Mukund Chitnis Vs. Mukund Martand Chitnis and another reported in MANU/MH/0120/1990 : 1990 CRL. L.J. 2084, the Bombay High Court was pleased to observe that, the imputations made in a proceeding which is filed in a Court is clearly a publication. It further observed that even a publication to an authority over the person against whom the imputations are made must be held to be sufficient publication which falls within the purview of the said Section 499 of IPC.

In the case of M.K. Prabhakaran and another Vs. T.E. Gangadharan and another reported in MANU/KE/0074/2006 : 2006 CRI. L.J. 1872, the Kerala High Court, in a matter where it is alleged that defamatory statements against complainant were made in a written statement filed before the Court held that, once a statement has been filed in a Court of Law, that statement can be taken as published. If such a statement amounts to per se defamatory, then it is the duty of the accused to establish that, they are justified in making such a statement under any of the exceptions to Section 499 of IPC.

In the case of Sanjay Mishra Vs. Government of NCT of Delhi & another, the Delhi High Court in paragraphs 11 and 12 of its judgment was pleased to observe as below:-

"11. In Sandyal V. Bhaba Sundari Debi MANU/WB/0241/1910 : 7 Ind. Cas. 803 : 15 C.W.N. 995 : 14 C.L.J. 31 the learned Judges, following the case of Augada Ram Shaha V. Nemai Chand Shaha MANU/WB/0132/1896 : 23 C.867 : 12 Ind. Dec.(n.s.)576, held that defamatory statements made in the written statement of a party in a judicial proceedings are not absolutely privileged in this country, and that a qualified privilege in this regard cannot be claimed in respect of such statements, unless they fall within the Exceptions to Section 499 of the Indian Penal Code. Undisputedly, the case of the petitioner was not in any of these Exceptions.

12. For criminal purposes "publication" has a wider meaning than it has in civil law, since it includes a communication to the person defamed alone. The prosecution for defamation in criminal cases can be brought although the only publication is to the person defamed as it is very likely to provoke a breach between the persons involved...."

In the case of Thangavelu Chettiar Vs. Ponnammal reported in MANU/TN/0132/1966 : AIR 1966 Mad 363, the Madras High Court was pleased to observe that, there can be no doubt that the defamation contained in the plaint was published by the plaint being filed in the Court.

20. In the instant case, to bring the statements made by the accused in Ex. P-4 which are contested to be defamatory as the one made with good faith and thus falling within the Ninth Exception to Section 499 of IPC, she has to show that she had made those statements with due care and attention. However, her own statement made at more than one place in her cross-examination as DW-1 that, she has stated that what she has stated in her statement of objections were the facts and they were the incidents occurred between herself and her husband i.e. the complainant. She has reiterated that they were the truth, as such, they were fact, in her further cross-examination also. Therefore, though the learned counsel for the accused contends that, she made the same in good faith, but according to accused, they were truth. If they are truth and falling under First Exception to Section 499 of IPC, then it is for her to prove that they were the facts.

Admittedly, except making those statements in her statement of objections at Ex. P-4 and reiterating it in Ex. P-1, she has not even attempted to show that they were the imputation of truth or that they were made in good faith. Therefore it can be safely held that the complainant has proved beyond reasonable doubt that the accused has committed an offence of defamation punishable under Section 499 of IPC, which is punishable under Section 500 of IPC.

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

Criminal Revision Petition Nos. 152 of 2014 and 1358 of 2010

Decided On: 01.10.2020

 Sushma Rani  Vs.  H.N. Nagaraja Rao

Hon'ble Judges/Coram:

Dr. H.B. Prabhakara Sastry, J.

Citation: MANU/KA/3441/2020

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What type of counter claim can be filed in matrimonial proceeding?

 Heard Counsel for the parties and perused the record. The only question that arises for consideration in this Writ Petition is, as to whether the Family Court was justified in relying upon Order VIII Rule 6-A of the CPC, to hold that the petitioner was not entitled to raise a counterclaim after having filed the written statement and upon expiry of period of limitation prescribed under Order VIII Rule 6-A of the CPC. The findings rendered by the Family Court can be upset only if it is found that the CPC would be applicable to the right of the petitioner to submit a counterclaim in the proceedings for divorce filed by the respondent before the Family Court. In this regard the following provisions of the Act of 1955 are relevant:-

"21. Application of Act 5 of 1908.-- Subject to the other provisions contained in this Act and to such rules as the High Court may make in this behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908."

"23-A of Hindu Marriage Act:- . Relief for respondent in divorce and other proceedings.--In any proceedings for divorce or judicial separation or restitution of conjugal rights, the respondent may not only oppose the relief sought on the ground of petitioner's adultery, cruelty or desertion, but also make a counter-claim for any relief under this Act on the ground, and if the petitioner's adultery, cruelty or desertion is proved the Court may give to the respondent any relief if he or she had presented a petition seeking such relief on that ground."

10. A perusal of the above quoted Section 23-A of the Act of 1955, that any proceedings for divorce initiated by a party, the respondent would be entitled to raise a counterclaim and it would have to be treated as if the respondent had filed a petition seeking such relief. There is no period of limitation or any other rider mentioned in the said Section 23-A of the Act of 1955, as provided under Order VIII Rule 6-A of the CPC. Section 21 of the Act of 1955, quoted above, shows that the CPC would be applicable to the proceedings initiated under the said Act subject to other provisions contained therein. A conjoint reading of the aforesaid Section 21 and Section 23-A of the Act of 1955 shows that the respondent in a proceeding initiated under the Act of 1955, would have a right to raise a counterclaim without being subjected to the specific fetters contained in Order VIII Rule 6-A of the CPC. This is because, to the extent of applicability of Section 23-A of the Act of 1955, the provisions of Order VIII Rule 6-A of the CPC, would not be applicable. This clearly shows that the Family Court erred while passing the impugned order and holding that the application for raising counterclaim filed on behalf of the petitioner could not be entertained.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 5768 of 2016

Decided On: 29.01.2019

 Ruchi Vs.  Bhanupratapsingh Gour

Hon'ble Judges/Coram:

Manish Pitale, J.

Citation: 2019(4) MHLJ 60

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When court should allow amendment of pleading after commencement of trial on ground of change of Advocate?

As regards the ground that change of Advocate cannot be a reason to allow such application for amendment, the fact remains that the parties to the litigation are not legally literate and therefore, they depend on the advise of their counsel. It is a matter of fact that till today the Petitions are drafted by the Advocates or the counsels and not by the litigants. Therefore, if at the time of drafting petition the Petitioner was not advised to include these reliefs in this petition for divorce by her previous Advocate and now with change of Advocate she has realized that these reliefs can be asked in this petition itself, she should not be denied the necessary amendment, as it would be depriving her from raising these issues. After all, the Proviso to Order 6 Rule 17 of C.P.C. is not of an absolute nature and so rigid. It needs to be considered depending on facts of each case. Especially in matrimonial proceedings in order to lessen the number of litigation inter se between the parties, which is already quite high, the approach of the Court has to be liberal.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 2357 of 2016

Decided On: 09.10.2017

Uma Ashish Ghate Vs. Ashish Anil Ghate

Hon'ble Judges/Coram:

Dr. Shalini Phansalkar Joshi, J.

Citation: 2018(4) MHLJ 365

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Whether court should permit evidence of daughter in case of dispute between mother and father?

Needless to state, that calling such a child of 7 to 8 years of age to give evidence in respect of the incidents that might have occurred when she was of 2 to 3 years of age, is as good as inflicting a mental trauma on the child. As a matter of fact, calling upon the child to give evidence in favour of one parent and which may prove to be against another parent is as good as subjecting the child to unwanted trauma and predicament. The law is well settled that children should not be treated as a pawn on the chess board of the matrimonial battle of their parents. It may be a legal battle for the parents, but for the child, it is an emotional exercise. Even in respect of the custody and access matters of the children, it is recognized that children should not be allowed to feel that they have to take decision as between father and mother, with which of them they shall live. The pressures on the children are quite sufficient when the marriage has broken down and one of the parents has left them. At this stage, it is not at all expected from the Court to put additional burden on the child of being made to feel that child has to give evidence in favour of one parent against another parent. In the matrimonial proceedings, there are not only two parties - the husband and wife, but there is also a third party - the child and it is for the Court, being in the position of parens patriae, to ensure that the welfare and best interest of the child is not affected in any way. Calling upon the child Shruti, who is hardly 7 to 8 years of age, and asking her to give evidence of the incidents, which might have taken place when she was 2 to 3 years of age, is definitely going to cause long term effects on the psychological and emotional aspects of the child. The welfare of the child is of paramount importance and not the right of the parties as to how one parent should lead evidence against another parent to prove the case of cruelty. It is the best interest of the child, which the Court has to protect. Hence, apart from and in addition to competency of child to give evidence, this aspect of emotional trauma of the child needs to be considered.

6. Moreover, in this case, the possibility of tutoring is always there, considering that since last more than three years, child is residing with the Petitioner. There is, therefore, the consequential possibility of the evidence of the child being discarded on the ground that she was tutored or influenced. Hence, there is no point in subjecting the child to this trauma, which is more important, having regard to the long term effects of giving of such evidence in the Court for the child against her own mother. In these types of cases, it is not the question of the either of the parent winning the case, but the child will surely be the "looser", if it is allowed to be used as a pawn on their chess-board. Whatever years of innocence and childhood, which Shruti has lost on account of separation between the parents, cannot be retrieved, but, at-least, her trauma should not be enhanced or multiplied by subjecting her to come to the Court to give evidence against her own mother. It is high time that parents like Petitioner in this case understands it and should not on their own make such request. Therefore, looking at it from this angle also, in addition to the angle of the possibility of being tutored or being influenced, I do not find that the impugned order passed by the Trial Court suffers from any illegality, so as to warrant interference therein. The Court, when it has to exercise its discretion, it has to do so in the best interest of the child and having regard to the best interest of the child, the impugned order passed by the Trial Court does not call for any interference. Hence, the Writ Petition holds no merits and stands dismissed.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 10839 of 2017

Decided On: 06.10.2017

 Rahul Ganpat Shedge Vs.  Sheetal Rahul Shedge

Hon'ble Judges/Coram:

Dr. Shalini Phansalkar Joshi, J.

Citation:  2018(1) MHLJ 426

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Whether Evidence of domestic servant can be relied on matrimonial proceeding?

The High Court did not take into consideration the evidence of Prabir Malik primarily because of his low status in life. The High Court, in the impugned judgment, erroneously observed that the appellant did not hesitate to take help from his servant in the matrimonial dispute though he was highly educated and placed in high position. The credibility of the witness does not depend upon his financial standing or social status only. A witness which is natural and truthful should be accepted irrespective of his/her financial standing or social, status. In the impugned judgment, testimony of witness No. 4 (Prabir Malik) is extremely important being a natural witness to the incident.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 151 of 2004

Decided On: 26.03.2007

Samar Ghosh Vs. Jaya Ghosh

Hon'ble Judges/Coram:

B.N. Agrawal, P.P. Naolekar and Dalveer Bhandari, JJ.

Citation:(2007) 4 SCC 511.
Read full judgment here :Click here

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How to appreciate evidence in matrimonial proceeding in India?

 It has to be borne in mind that the principles of appreciation of
evidence are quite well settled.  In a dispute between the husband and
wife, it is not possible to bring documentary evidence on record and,
very often, the case has to be decided on the word of the wife against
the word of the husband.   A judicial trained mind, however, can very
well examine the facts and circumstances of the case and then draw its
own inference from the material on record.   Most of the time acts of
cruelty take place in close room or bedroom  of the couple where
neither the parents nor children are privy to what happens inside the
four walls of the bedroom.   It is also quite well established that the
women in India normally do not like to bring the dispute between the
husband and wife in open and very often do not disclose to their
parents  extreme cruelty at the hands of the husband because she feels
that if such a disclosure is made, it would make her parents unhappy.
The   situation   in   India   is   therefore   such   that   the   husband   plays   a
dominating role in the house despite the fact that wife is educated,
working and belongs to affluent family. 
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE  JURISDICTION
FAMILY COURT APPEAL NO.58 OF 2015

Suresh Bhandary 
V/s
Mrs Sushma Bhandary 
                   CORAM:  V. M. KANADE &
                                   MRS. SWAPNA S. JOSHI, JJ
  
                    DATE:   15th October, 2016  
Citation: 2016 (6) ALLMR 850

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Whether concept of fraud as mentioned in contract Act is applicable to matrimonial proceeding?

The word 'fraud' has not been defined in the Act. It has, however, been defined in Section 17 of the Indian Contract Act thus--

'fraud' means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract:

(1) The suggestion, as a fact, of that which J is not true, by one who does not believe it to be true;
(2) The active concealment of a fact by one having knowledge or belief of the fact;
(3) A promise made without any intention of performing it;
(4) Any other act fitted to deceive;
(5) Any such act or omission as the law specially declares to be fraudulent.
Explanation:-- Mere silence as to facts likely to affect the willingness of a person to enter into a contract is not fraud unless the circumstances of the case are such that, regard being had to them, it is the duty of the person keeping silence to speak, or unless his silence is, in itself, equivalent to speech.

This definition would not be applicable to a marriage under the Hindu Law, because it is undisputed that a Hindu marriage is a sacrament and not a contract. As observed by B.K. Mukherji J. in a Full Bench decision of the Calcutta High Court in Kshitish Chandra v. Emperor MANU/WB/0001/1937 : AIR 1937 Cal 214--

It is well settled that a Hindu marriage is a sacrament and not a contract, and the presence of a consenting mind is not indispensable. If the marriage rites are duly performed and there is no impediment to the marriage in the shape of identity of gotra or prohibited degrees of relationship, the doctrine of factum valet applies and makes the marriage indissoluble in the absence of proof of any force or fraud Brindabun Chandra v. Chundra Kurmokar ILR 12 Cal 140. The reason for the exception seems to be that where the girl is abducted by force or fraud and married, there is neither any gift by the lawful guardian nor the performance of any religious ceremony in the proper sense and there is, consequently, an absence of the essential ingredients necessary to constitute a valid marriage.

The word 'fraud' as a ground for the annulment of the marriage under the Hindu Law is limited only to those cases where the consent of the Petitioner at the solemnization of the marriage was obtained by some sort of deception. For example, take a case where A was given to understand that he was being married to B and, in fact, he was married to C. Again, where the marriage of the Petitioner was solemnized when he or she, as the case may be, was under the influence of liquor. In case of a marriage under the Hindu Law, 'fraud' is not used in a general way and on every misrepresentation or concealment, the marriage cannot be dissolved. If the term 'fraud' is to be interpreted according to the definition given in the Indian Contract Act, then it would become impossible to maintain the sanctity of the marriage. All sorts of misrepresentations will be alleged by the Petitioners in older to break the marriage tie. This obviously, could not be the intention of the Legislature. 

Equivalent Citation : AIR 1964 P and H 359

IN THE HIGH COURT OF PUNJAB AND HARYANA

F.A.F.O. No. 5-M of 1961

Decided On: 20.05.1963

 Harbhajan Singh  Vs. Smt. Brij Balab Kaur

Hon'ble Judges/Coram:
P.C. Pandit, J.

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When principles of natural justice is not violated in matrimonial proceeding?

The petitioner did not challenge the order in any Court for
closure of his right to cross-examine the respondent. Counsel for the
petitioner says that the trial court has passed the impugned judgment
by violating the principle of natural justice, as his client was not
afforded a chance to rebut the facts and documents tendered by the
respondent. Therefore, the present case is not a case where the
opportunity was not granted. Rather it was granted but the same is
not availed b the petitioner.
24. It is evident that the Sub-section (2) of Section 28 was inserted
for such types of cases, i.e. where the non-applicant is ex parte or the
right to cross-examination of either party is closed despite of
opportunity is granted, the trial court under those circumstances shall
not be prevented from laying down its own procedure for disposal of
an application under Section 12 or Sub-section (2) of Section 23 of
the Act. Under those circumstances, if the trial court is able to find
prima-facie material by way of cogent and unimpeachable evidence,
the Court may lay down its own procedure by fixing the amount under 
Section 28(2) of the Act which has been rightly applied in the present
case. After having gone through the findings arrived at by the trial
court as well as by the Appellate Court, as there is no infirmity in the
impugned judgment, in fact, the Appellate Court has passed the 
impugned judgment after considering the cogent evidence available
on record, rather the appeal filed by the petitioner was partly allowed
by reducing the amount from Rs.2.5 lac to Rs.50,000/- per month on
the basis of material positively available. Further, it is admitted by the
counsel that when the right to cross-examination of respondent in
2012 was closed the said order was not challenged by the petitioner,
the same becomes final at the time of passing the final judgment. The
petitioner is even not ready to comply the direction issued by the trial
court which are issued in the impugned judgment but at the same
time the petitioner has challenged the findings of the judgment which
are legally correct and there is no legal infirmity. I do not find any
reason to interfere or to take a different view by exercising my
discretion under Section 482 Cr.P.C. in the present case. The
petition is accordingly dismissed.
 IN THE HIGH COURT OF DELHI AT NEW DELHI
 Judgment pronounced on: 6th April, 2015
 Crl. M.C. No.850/2015 & Crl. M.A. No.3213/2015
PRASHANT OJHA 
versus
SHALU OJHA 
CORAM:
HON'BLE MR.JUSTICE MANMOHAN SINGH
Citation:2016 ALLMR(CRI)JOURNAL273

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How to prove evidence of CD in Civil or matrimonial proceeding?

Equivalent Citation: 2011(2)ALLMR577, 2011(3)BomCR100, 2011(113)BOMLR479, 2011(3)MhLj564

IN THE HIGH COURT OF BOMBAY

Notice of Motion No. 8 of 2010 IN Suit No. 16 of 2008

Decided On: 28.01.2011

Mrs. Havovi Kersi Sethna Vs. Mr. Kersi Gustad Sethna

Hon'ble Judges/Coram:
R.S. Dalvi, J.

Law of Evidence - Tape Recorded Conversation - Admissibility thereof in evidence - Held, it is settled law that tape recorded conversation is admissible in evidence. The appreciation of evidence would require consideration of three requirements; identification, relevancy and accuracy. It is left to the Defendant to pass those tests. If the tests are not passed, the tape recorded conversation would be of no use in effect ultimately. Notice of motion disposed of.

Law of Evidence - Sealing of recorded conversation - Recording of Evidence Tape Recorded Conversation - Held, the requirement of sealing the recorded conversation would not be applicable in this case. This is a civil trial. There is no question of sealing of a conversation recorded by a party to the civil lis himself. The sealing requirement is only in criminal trials. Notice of motion disposed of.

Tape recorded conversation is admissible in evidence provided the identification, relevancy and accuracy of same is proved.

Requirement of sealing of recorded conversation used as evidence is not applicable to a civil trial but is applicable only to a criminal trial.

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