to the appellant wife or “no opportunity” at the time when Baby
‘X’ could have been conceived. On the contrary, he has admitted
“access”. ‘W’ - the appellant wife has effectively denied the pleas
of adultery.
184. ‘H’ has failed to make out a prima facie case justifying an
order for compelling Baby ‘X’ to give a sample for a DNA
examination. The repeated admissions of paternity by ‘H’ in his
pleadings, affidavit and his statement on oath in support on judicial
record militate against a prima facie case in favour of ‘H’ for
making the order prayed for. The husband ‘H’ has made
admissions of paternity in public records of the Registrar of Births
as well as bank record. No explanation was tendered before the ld.
Family Court Judge or before us. The respondent no.1 has
concealed material facts; is guilty of mis-statement before the
Family Court and his conduct post-conception of the child do not
support a prima facie case in his favour justifying the impugned
order. The respondent no.1 has also not established imminent need
for the order or that such order was at all necessary for a just
decision of the case. The impugned order is unreasoned, contrary
to law and unsustainable.
IN THE HIGH COURT OF DELHI AT NEW DELHI
MAT.APP.(F.C.) 17/2016 & CM No.5064/2016
Date of decision : 26th August, 2016
‘W’ ..... Appellant
versus
‘H’ & ANR ..... Respondents
CORAM:
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MR. JUSTICE I.S.MEHTA
1. By way of the instant appeal under Section 19 of the Family
Court Act, 1984, the appellant wife assails the order dated 28th
January, 2016 passed by the Principal Judge, Family Courts, New
Delhi in HMA No.223/2015 whereby the trial court allowed an
application under Section 151 of the CPC moved by the respondent
no.1 husband seeking a DNA test of the appellant and the minor
child.
2. Before examining the impugned order, we propose to notice
the essential facts which emerge from the family court record and
give rise to the present appeal. Marriage between the appellant and
the respondent no.1 was solemnised on 3rd December, 2007 in
accordance with Hindu rites and ceremonies at the Ashoka Hotel,
Chanakyapuri, New Delhi.
3. At the time of the marriage, H- respondent no. 1 was serving
as an officer of the Indian Administrative Services (IAS) in the
Nagaland Cadre and was posted at District Mokokchung, Nagaland
while the appellant was residing with her parents, continuing her
studies, and preparing for the civil services examination. The
appellant also qualified the IAS examination in the year 2009 and
was allotted the U.P. Cadre of the Indian Administrative Services.
On this basis, the respondent no.1 applied for change of cadre and,
in the middle of June, 2011, was relieved of his charge in Nagaland
and was posted as District Magistrate in Lakhimpur, Kheri District
in U.P.
4. In July, 2012, the respondent was transferred as a District
Magistrate, Bareilly while the appellant was appointed as a Chief
Development Officer of District Lucknow. In February, 2013, the
appellant was transferred as a District Magistrate, Pilibhit.
5. It appears that a decision was taken by the H & W to seek
dissolution of their marriage. On the 1st of October 2014, a joint
petition was filed by H-the respondent no.1 (as petitioner no.1) and
W-the appellant (as petitioner no.2) under Section 13B(1) of the
Hindu Marriage Act, 1955 seeking dissolution of marriage of the
parties by a decree of divorce by mutual consent which was
registered as HMA No.1099/2014 at the court of the Principal
Judge, Family Courts, Saket, New Delhi. We extract hereunder
certain material averments made in this joint petition :
“6. However, while there have been, because of
temperamental difference and incompatibility, reduced
time of cohabitation and living together and also
occupational placements, the parties, for the last one
year, have been residing separately.
7. That a child named (Baby X) was born on
6.10.2013 at Lucknow and the child is in custody of the
mother at Sultanpur.
8. That the petitioner no.1 (sic. husband) is
presently posted as District Magistrate in Aligarh and
the petitioner no.2 (sic. wife) is posted as District
Magistrate, Sultanpur. Both the petitioners are well
settled in life.
9. That due to temperamental differences, parties
to the present petition have not been able to live in
cordial atmosphere at the matrimonial home.
10. That the parties are living separately from each
other for more than a year and there has been no
resumption of any cohabitation between them, nor
there is any chance for the same.
13. That the parties have resolved their disputes and
differences and it has been specifically agreed by the
petitioner no.1 and petitioner no. 2 that petitioner no.2
or her relatives shall not claim anything from petitioner
no.1 (or his relatives) in any court of law in India and
outside India. Likewise, petitioner no.1 shall make no
claim from petitioner no.2 (or her relatives).
14. That it is agreed between both the parties that
petitioner no.2 neither be entitled to any amount from
petitioner no.1 (as she has voluntarily relinquished all
her claims against petitioner no.1) nor shall claim any
right in any of his assets, movable or immovable, in any
manner whatsoever in India or outside India, past,
present and future. Similarly, petitioner no.1 has
relinquished all his claims, past, present and future
against petitioner no.2.
15. Considering the welfare of the child, she would
grow up exclusively in the custody of mother, i.e.,
petitioner no.2 (Baby X). Petitioner no.1 gives up all
claims to custody even access. He shall not be liable
for maintenance and education of the child in present
or future, which shall be borne by petitioner no.2
solely.
xxx xxx xxx
17. That the present petition is not being presented in
collusion with each other.
xxx xxx xxx
20. That the parties to the present petition are not
accessory to nor have connived with each other in
presenting the present petition.”
6. This petition was verified on solemn affirmation. It was
supported by an affidavit of both the parties. In para 1 of his
affidavit, the respondent no.1 husband clearly stated that the
petition “has been drafted by my counsel at my instructions. I have
read and understood the contents thereof and hereby state that the
same are true and correct”. The affidavit also contained
unequivocal declarations of non-collusion; voluntariness of the
mutual consent and that he was not an accessory to or have
connived at with petitioner no.2 in presenting or prosecuting the
present petition.
7. The above petition contains an absolute admission that a
child named Baby ‘X’ was born to the parties on 6th of October MAT.APP.(FC)No.17/2016 Page 5 of 95
2013 who was in custody of the mother who was posted at
Sultanpur. There is a further admission of fatherhood by the
respondent no.1 in para 15 of the petition when he unequivocally
gives up all claims to custody, even to access to the child, and
abandons responsibility for her maintenance and education which
was agreed to be borne by the mother alone. The parties clearly
mentioned that the child would grow up exclusively in the “custody
of the mother” endorsing the abandonment of custody rights by the
other party.
8. In the joint statement recorded of the appellant and the
respondent no.1 on the 1st of October 2014 by the Principal Judge
(South-East), Family Courts, Saket, H-the respondent no.1 once
again declared that “a child named Baby X was born on 6.10.2013
at Lucknow and the child is in custody of the mother at Sultanpur”.
In this statement on oath, H-the respondent no.1 again referred to
the agreement that the “permanent custody of the minor child baby
shall remain with the petitioner no.2/wife”.
9. The Family Court had raised an objection with regard to the
maintainability of the petition in the Family Court at Saket on
account of territorial jurisdiction. In view of this objection, on the
22nd October, 2014, the parties agreed to withdraw the petition with
opportunity to file a fresh petition before the court having
competent jurisdiction. The Family Court recorded the statement
of counsels for the parties and permitted the petition to be
withdrawn with liberty to file a fresh petition before the court of
competent jurisdiction. MAT.APP.(FC)No.17/2016 Page 6 of 95
10. On the 31st of October 2014, the appellant and respondent
no.1 jointly filed a second petition before the Family Court, Patiala
House under Section 13B(1) of the Hindu Marriage Act, 1955,
registered as HMA No.783/2014, for dissolution of their marriage
by way of decree of divorce by mutual consent which was
containing the identical averments as paras 6 to 10 and 13 to 15 of
the first petition, as extracted above. In para 25, the parties
disclosed the filing of the previous petition being HMA
No.1099/2014 in the Saket Family Courts. The petition was again
supported by separate affidavits of the appellant as well as
respondent no.1.
In para 13, the respondent no.1 had again declared that the
parties have resolved their disputes and differences.
11. It appears that thereafter, the respondent no.1 filed an
application for withdrawal of the above petition urging that there
were certain unwritten conditions also, agreed upon between the
parties, and that he would continue with a criminal complaint
which stood filed by him against the appellant and the respondent
no.2 on grounds of adultery and that he was not prepared to
withdraw the said complaint. The respondent no.1 claimed that he
had agreed to file a petition by mutual consent purely in the interest
of the child involved in the case and to bring to an end the
relationship of the parties which was non-existent on account of
certain acts attributed to the appellant. In view thereof, the
respondent no.1 stated that he was withdrawing from the joint
petition and prayed for its dismissal. As a result, on 9th January, MAT.APP.(FC)No.17/2016 Page 7 of 95
2015, the Principal Judge, Patiala House, Delhi dismissed the joint
petition as withdrawn with liberty to the respondent no.1 to file a
fresh petition for dissolution of marriage under appropriate
provisions of law. The learned Family Court noted the absence of
the appellant wife.
12. It is only thereafter that on or about the 29th January, 2015,
the respondent no.1 filed HMA No.3329/2014 before the Principal
Judge, Family Court, Lucknow under Section 13(1)(i) of the Hindu
Marriage Act for dissolution of marriage of the appellant and
respondent no.1 by a decree of divorce. In this petition, H-the
respondent no. 1 levelled allegations of adultery on the part of the
appellant with a person who was impleaded as a respondent no.2
and for the first time denied paternity of the child of the parties
born on 6th October, 2013.
13. This petition was transferred by the Supreme Court of India
from Lucknow to Delhi vide order dated 23rd February, 2015
passed in Transfer Petition (Civil) No.1886/2014. The appellant
filed a detailed written statement contesting allegations of the
appellant and vehemently denying the allegations of adultery.
14. The appellant has set-up a case that she was subjected to
grave torture and abuse, both mental and physical, at the hands of
the respondent no.1; that the parties were cohabiting as husband
and wife at their postings and that the respondent no.1 husband
would come and stay at Lucknow or she would go and stay with
him on leave or whenever visiting his place of posting. The
appellant has asserted that she conceived from their wedlock and MAT.APP.(FC)No.17/2016 Page 8 of 95
cohabitation and in February, 2013 told the respondent no.1 that
she was expecting their child.
The respondent no.1 urges that this information was received
from her only in April, 2013.
15. On 6th of October 2013, the appellant gave birth to a girl
child at Lucknow. On 18th October, 2013, a lunch and pooja
ceremony was organized at the house of the appellant’s parents
which was attended by the parents of the respondent no.1 and large
number of his guests. The priest who performed the pooja is stated
to be an old acquaintance of the respondent no.1 and his parents
from the time of his posting at Lakhimpur, Kheri District.
16. The appellant submits that between 9th and 29th November,
2013, the appellant visited Bareilly and stayed with the respondent.
However, thereafter, the parties could not cohabit with each other.
17. Replication thereto was filed by the respondent husband
disputing the allegations of the wife.
18. Issues were framed in the matter on 24th August, 2015 and
the matter proceeded to evidence of the appellant.
19. The respondent no. 1 thereafter filed his list of witnesses.
He also filed his examination in chief by way of affidavit dated 29th
July, 2015 which was tendered in evidence and he was examined
extensively on 14th; 24th; 28th; and 29th September, 2015 when his
cross examination was concluded.
20. On the next date of hearing i.e. 16th October, 2015, the
evidence of PW-2 Sh. Vikas Verma was recorded and he was
discharged.MAT.APP.(FC)No.17/2016 Page 9 of 95
21. The matter was posted for the remaining evidence of the
respondent no.1 on 29th October, 2015 and 9th November, 2015.
22. The next witness was Inspector Vijaymal Singh Yadav who
was examined as PW-3 on 8th December, 2015 and discharged.
23. On the 14
th of October 2015, the husband-respondent no.1
filed an application under Section 151 C.P.C. seeking a direction
for conducting the DNA test of the respondent no.1 and the child to
ascertain as to whether he was the biological father of the child and
for a further direction to the appellant to produce the child either in
court or elsewhere to enable her blood samples to be taken. This
application was also listed on the above dates. The appellant had
filed a note dated 4th of January 2016 opposing the application on
merits and in law.
24. This application was allowed by the Family Court by the
order dated 28th of January 2016 inter alia directing the appellant to
bring the child to the office of the Director, CFSL in the CGO
Complex, Lodhi Road when the respondent no.1 was also directed
to remain present so that the blood samples could be taken in the
presence of the parties.
This order has been assailed by way of the present appeal.
25. Before examining the rival contentions, we summarise the
headings under which this matter has been considered :
I. Direction for compelling a medical examination or a
DNA test to establish any fact – when to be made?
(paras 26 to 33)MAT.APP.(FC)No.17/2016 Page 10 of 95
II. Displacement of the conclusive presumption under
Section 112 of the Indian Evidence Act – Standard of
proof to do so? (paras 34 to 43)
III. What is the meaning of “access” and “non-access”
(paras 44 to 54)
IV. Summation of the principles laid down by judicial
precedents on consideration of an application for an
examination (para 55)
V. Prima facie case (paras 56 to 59)
VI. Whether the case of non-access was specifically pleaded
by the respondent no.1 (paras 60 to 67)
VII. Whether there is non-traverse by the wife of the
husband’s pleadings, and thereby, deemed admission
thereof? (paras 68 to 90)
VIII. Is the court bound to pass orders premised on admissions
of parties? (paras 91 to 102)
IX. Admissions of paternity by the husband on court records –
impact on “prima facie case” (paras 103 to 112)
X. Conduct of the husband despite his allegations against his
wife – impact thereof (paras 113 to 134)
Concealment and statement of wrong facts – whether
impacts consideration of prima facie case?
(paras 135 to 141)
XI. DNA report dated 23rd April, 2015 – whether supports a
prima facie case in favour of the respondent no.1 –
husband? (paras 142 to 153)MAT.APP.(FC)No.17/2016 Page 11 of 95
XII. In the facts of the present case, effect of the presumption
under Section 112 of the Indian Evidence Act
(paras 154 to 168)
XIII. Ensuring the Constitutional rights of the child
(paras 169 to 175)
XIV. Impugned order (paras 176 to 182)
XV. Conclusion (paras 183 to 184)
XVI. Result (para 185)
We now propose to discuss the above in seriatim.
I. Direction for compelling a medical examination or a DNA
test to establish any fact – when to be made?
26. In the present case, it is an admitted position that the prayer
for the DNA examination is made qua a child born during the
subsistence of a marriage. Such prayer has been judicially
examined on principles which apply to a prayer for a medical
examination of a party in a case. Directions for such examinations,
which are akin to a DNA testing, may be made for a variety of
reasons. Say for instance, it may be necessary for the court to
satisfy itself as to whether a party before it suffers from mental
illness or not either for the purposes of appointment of a guardian
ad litem in terms of Order XXXII Rule 15 of the Code of Civil
Procedure or Section 41 of the Mental Health Act,1987 as also for
the determination under Section 118 of the Indian Evidence Act of
a person’s competency as a witness. MAT.APP.(FC)No.17/2016 Page 12 of 95
27. DNA testing has come into existence by scientific evolution
as yet another test utilised for establishing relationships in the
nature of paternity or shared parentage between parties in litigation.
Applications for directions to the other party to appear or produce
off springs or siblings for DNA testing are made by parties seeking
to establish, either, the factum of the relationship, or, their
challenge to the relationship. It could be by a person claiming
parentage or by a person challenging paternity of another.
28. So far as a challenge to paternity is concerned, it is well
settled that a rebuttable presumption lies under Section 112 of the
Indian Evidence Act, 1872 in favour of the paternity of the
legitimacy of a child born during marriage. For expediency, we
extract Section 112 which reads as follows :
“Section 112 in The Indian Evidence Act, 1872
112. Birth during marriage, conclusive proof of
legitimacy.—The fact that any person was born during
the continuance of a valid marriage between his
mother and any man, or within two hundred and
eighty days after its dissolution, the mother remaining
unmarried, shall be conclusive proof that he is the
legitimate son of that man, unless it can be shown that
the parties to the marriage had no access to each other at
any time when he could have been begotten.”
(Emphasis by us)
29. The question which has to be answered in the present case is
as to the permissibility of a DNA test? On this issue, the
observations in paras 82 to 85 of the pronouncement in the three
Judge Bench decision of the Supreme Court in AIR 2003 SC 3450, MAT.APP.(FC)No.17/2016 Page 13 of 95
Sharda v. Dharampal in the context of a medical examination are
topical and read thus :
“80. The matter may be considered from another angle. In
all such matrimonial cases where divorce is sought, say on
the ground of impotency, schizophrenia etc. normally
without there being medical examination, it would be
difficult to arrive at a conclusion as to whether the
allegation made by a spouse against the other spouse
seeking divorce on such a ground, is correct or not. In order
to substantiate such allegation, the petitioner would always
insist on medical examination. If the respondent avoids
such medical examination on the ground that it violates
his/her right to privacy or for that matter right to personal
liberty as enshrined under Article 21 of the Constitution of
India, then it may in most of such cases become impossible
to arrive at a conclusion. It may render the very grounds on
which divorce is permissible nugatory. Therefore, when
there is no right to privacy specifically conferred by Article
21 of the Constitution of India and with the extensive
interpretation of the phrase “personal liberty” this right has
been read into Article 21, it cannot be treated as an absolute
right. What is emphasized is that some limitations on this
right have to be imposed and particularly where two
competing interests clash. In matters of the aforesaid
nature where the legislature has conferred a right upon
his spouse to seek divorce on such grounds, it would be
the right of that spouse which comes in conflict with the
so-called right to privacy of the respondent. Thus the court
has to reconcile these competing interests by balancing
the interests involved.
xxx xxx xxx
82.It is, however, axiomatic that a court shall not order a
roving inquiry. It must have sufficient materials before it
to enable it to exercise its discretion. Exercise of such
discretion would be subjected to the supervisory
jurisdiction of the High Court in terms of Section 115 of the
Code of Civil Procedure and/or Article 227 of the MAT.APP.(FC)No.17/2016 Page 14 of 95
Constitution of India. Abuse of the discretionary power at
the hands of a court is not expected. The court must arrive
at a finding that the applicant has established a strong
prima facie case before passing such an order.
83. If despite an order passed by the court, a person refuses
to submit himself to such medical examination, a strong
case for drawing an adverse inference would be made out.
Section 114 of the Indian Evidence Act also enables a court
to draw an adverse inference if the party does not produce
the relevant evidences in his power and possession.
84. So viewed, the implicit power of a court to direct
medical examination of a party to a matrimonial litigation
in a case of this nature cannot be held to be violative of
one's right of privacy.
85. To sum up, our conclusions are:
1. A matrimonial court has the power to order a person to
undergo medical test.
2. Passing of such an order by the court would not be in
violation of the right to personal liberty under Article 21 of
the Indian Constitution.
3. However, the court should exercise such a power if the
applicant has a strong prima facie case and there is
sufficient material before the court. If despite the order of
the court, the respondent refuses to submit himself to
medical examination, the court will be entitled to draw an
adverse inference against him.”
(Emphasis supplied)
It is therefore, well settled that the court in an appropriate
case, can direct medical examination of a party to matrimonial
litigation as well provided that the applicant seeking such
examination has a “strong prima facie” case and has placed
“substantial material” on the court record in support of his/her
case.MAT.APP.(FC)No.17/2016 Page 15 of 95
30. On the same aspect, we may usefully refer to the
pronouncement of the Supreme Court reported at (2005) 4 SCC
449 Sh. Banarasi Dass v. Mrs. Teeku Datta. This case arose in
the context of succession where a challenge was laid to the
paternity of the petitioner who claimed to be the daughter of
deceased who was alleged to have died intestate leaving behind
five brothers. Originally, only four of the brothers were impleaded,
out of which two passed away. The petition was filed only against
two brothers and subsequently, the third brother was also
impleaded. One of the brothers objected to the grant of the
succession certificate disputing Mrs. Teeku Datta’s claim of
paternity. As both the objector’s brother and his wife were dead,
he sought a DNA examination of the petitioner with the DNA of
the other respondents. We note hereunder the consideration and
discussion by the courts in paras 10, 11, 12 and 13 which read thus:
“10. In matters of this kind the court must have regard
to Section 112 of the Evidence Act. This section is
based on the well-known maxim pater is est quem
nuptiae demonstrant (he is the father whom the
marriage indicates). The presumption of legitimacy is
this, that a child born of a married woman is deemed
to be legitimate, it throws on the person who is
interested in making out the illegitimacy, the whole
burden of proving it. The law presumes both that a
marriage ceremony is valid, and that every person is
legitimate. Marriage or filiation (parentage) may be
presumed, the law in general presuming against vice and
immorality.
11. It is rebuttable presumption of law that a child born
during lawful wedlock is legitimate, and that access
occurred between the parents. This presumption can MAT.APP.(FC)No.17/2016 Page 16 of 95
only be displaced by a strong preponderance of
evidence, and not by a mere balance of probabilities.
12. In Dukhtar Jahan v. Mohd. Farooq [(1987) 1 SCC
624 : 1987 SCC (Cri) 237] this Court held: (SCC p. 629,
para 12)
“Section 112 lays down that if a person was born
during the continuance of a valid marriage between
his mother and any man or within two hundred and
eighty days after its dissolution and the mother
remains unmarried, it shall be taken as conclusive
proof that he is the legitimate son of that man, unless
it can be shown that the parties to the marriage had
no access to each other at any time when he could
have been begotten. This rule of law based on the
dictates of justice has always made the courts
incline towards upholding the legitimacy of a child
unless the facts are so compulsive and clinching as
to necessarily warrant a finding that the child could
not at all have been begotten to the father and as
such a legitimation of the child would result in rank
injustice to the father. Courts have always desisted
from lightly or hastily rendering a verdict and that
too, on the basis of slender materials, which will
have the effect of branding a child as a bastard and
its mother an unchaste woman.”
The view has been reiterated by this Court in many later
cases e.g. Amarjit Kaur v.Harbhajan Singh [(2003) 10
SCC 228].”
(Emphasis by us)
The presumption of legitimacy thus cannot be disturbed by
“slender” materials under “compulsive and clinching” facts are
brought to shake the presumption and call for a DNA examination.
Proof of non-access was essential.
31. So far as the facts of the case were concerned, in para 14, the MAT.APP.(FC)No.17/2016 Page 17 of 95
court observed thus :
“14. .... In order to succeed in the succession application the
applicant has to adduce cogent and credible evidence in
support of the application. The respondents, if they so
choose, can also adduce evidence to oppose grant of
succession certificate. The trial court erroneously held that
the documents produced by the respondents were not
sufficient or relevant for the purpose of adjudication and
DNA test was conclusive. This is not a correct view. It is
for the parties to place evidence in support of their
respective claims and establish their stands. DNA test is
not to be directed as a matter of routine and only in
deserving cases such a direction can be given, as was
noted in Goutam Kundu case [(1993) 3 SCC 418 : 1993
SCC (Cri) 928] . Present case does not fall in that category.
The High Court's judgment does not suffer from any
infirmity. We, therefore, uphold it. It is made clear that we
have not expressed any opinion on the merits of the case
relating to succession application.”
(Emphasis supplied)
32. The observations of the court in paras 12 and 13 of the
judgment reported at AIR 2010 SC 2851, Bhabani Prasad Jena v.
Convenor Secretary, Orissa State Commission for Women & Anr.
shed valuable light on the issue under consideration and are
therefore set down in extenso :
“12. Recently, in Ramkanya Bai v. Bharatram [(2010) 1
SCC 85] decided by the Bench of which one of us, R.M.
Lodha, J. was the member, the order of the High Court
directing DNA test of the child at the instance of the
husband was set aside and it was held that the High Court
was not justified in allowing the application for grant of
DNA test of the child on the ground that there will be
possibility of reunion of the parties if such DNA test was
conducted and if it was found from the outcome of the MAT.APP.(FC)No.17/2016 Page 18 of 95
DNA test that the son was born from the wedlock of the
parties.
13. 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. One view is that when modern science
gives the means of ascertaining the paternity of a child,
there should not be any hesitation to use those means
whenever the occasion requires. The other view is that the
court must be reluctant in the use of such scientific
advances and tools which result in invasion of right to
privacy of an individual and may not only be prejudicial to
the rights of the parties but may have devastating effect on
the child. Sometimes the result of such scientific test may
bastardise an innocent child even though his mother and her
spouse were living together during the time of conception.
In our view, when there is apparent conflict between the
right to privacy of a person not to submit himself forcibly
to medical examination and duty of the court to reach the
truth, the court must exercise its discretion only after
balancing the interests of the parties and on due
consideration whether for a just decision in the matter,
DNA test is eminently needed. DNA test in a matter
relating to paternity of a child 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.”
(Emphasis supplied)
33. The conclusiveness of the presumption under Section 112 of
the Indian Evidence Act, therefore, cannot be disturbed lightly.
These principles bound the Family Court in the present case
while considering the application which was filed by the present MAT.APP.(FC)No.17/2016 Page 19 of 95
respondent no.1.
II. Displacement of the conclusive presumption under Section
112 of the Indian Evidence Act – Standard of proof to do
so?
34. Given the weight attached to the presumption of paternity of
a child born during the subsistence of a marriage under Section
112, what would be the standards on which such a presumption
under Section 112 would be rebutted? This issue is also no longer
res integra and has been discussed by the Supreme Court in the
judgments reported at AIR 2001 SC 2226 Kamti Devi v. Poshi
Ram as well as (2009) 12 SCC 454 : AIR 2009 SC 3115 Sham
Lal alias Kuldeep v. Sanjeev Kumar & Ors. We borrow the words
of the Supreme Court on this very important aspect.
35. In AIR 2001 SC 2226 Kamti Devi (Smt.) & Anr. v. Poshi
Ram, the husband filed a civil suit for decree declaring that he is
not the father of a child born on 4th September, 1996 i.e. 15 years
after the marriage of the parties (in 1975) on the ground that he had
no access to the appellant during the period when the child would
have been begotten. The trial court relied on the conclusive
presumption in Section 112 of the Indian Evidence Act and holding
that the husband had failed to prove that he had no access to his
wife during the relevant period, dismissed the suit. The first
appellate court, however, re-evaluated the entire evidence and held
that the husband had succeeded in discharging the burden of
rebutting the presumption by proving that he had no access to the MAT.APP.(FC)No.17/2016 Page 20 of 95
mother of the child during a very long stretch of time covering the
relevant period and consequently allowed the appeal and decreed
the suit. The High Court also refused to interfere with this finding
on the ground that it was pure question of fact calling for no
interference by the court in the second appeal under Section 100 of
the Code of Civil Procedure. Kamti Devi filed a special leave
petition before the Supreme Court assailing the orders against her.
36. In its judgment, the Supreme Court has authoritatively laid
down the impact of presumption of Section 112 of the Indian
Evidence Act and the manner in which the same can be rebutted in
paras 9 to 12 of the pronouncement which read in Kamti Devi as
follows :
“9. When the legislature chose to employ the expression
that a certain fact “shall be conclusive proof” of another
fact, normally the parties are disabled from disrupting such
proof. This can be discerned from the definition of the
expression “conclusive proof” in Section 4 of the Act:
“4. ‘Conclusive proof’.—When one fact is declared
by this Act to be conclusive proof of another, the court
shall, on proof of the one fact, regard the other as
proved, and shall not allow evidence to be given for the
purpose of disproving it.”
10. But Section 112 itself provides an outlet to the party
who wants to escape from the rigour of that conclusiveness.
The said outlet is, if it can be shown that the parties had no
access to each other at the time when the child could have
been begotten the presumption could be rebutted. In other
words, the party who wants to dislodge the conclusiveness
has the burden to show a negative, not merely that he did
not have the opportunity to approach his wife but that she
too did not have the opportunity of approaching him
during the relevant time. Normally, the rule of evidence in MAT.APP.(FC)No.17/2016 Page 21 of 95
other instances is that the burden is on the party who
asserts the positive, but in this instance the burden is cast
on the party who pleads the negative. The raison d'être is
the legislative concern against illegitimatizing a child. It is
a sublime public policy that children should not suffer
social disability on account of the laches or lapses of
parents.”
11. We may remember that Section 112 of the Evidence
Act was enacted at a time when the modern scientific
advancements with deoxyribonucleic acid (DNA) as well as
ribonucleic acid (RNA) tests were not even in
contemplation of the legislature. The result of a genuine
DNA test is said to be scientifically accurate. But even
that is not enough to escape from the conclusiveness of
Section 112 of the Act e.g. if a husband and wife were
living together during the time of conception but the DNA
test revealed that the child was not born to the husband,
the conclusiveness in law would remain irrebuttable. This
may look hard from the point of view of the husband who
would be compelled to bear the fatherhood of a child of
which he may be innocent. But even in such a case the
law leans in favour of the innocent child from being
bastardised if his mother and her spouse were living
together during the time of conception. Hence the
question regarding the degree of proof of non-access for
rebutting the conclusiveness must be answered in the light
of what is meant by access or non-access as delineated
above.
12. Whether the burden on the husband is as hard as the
prosecution to prove the guilt of the accused in a trial
deserves consideration in the above background. The
standard of proof of prosecution to prove the guilt beyond
any reasonable doubt belongs to criminal jurisprudence
whereas the test of preponderance of probabilities belongs
to civil cases. The reason for insisting on proof beyond
reasonable doubt in criminal cases is to guard against the
innocent being convicted and sent to jail if not to extreme
penalty of death. It would be too hard if that standard is MAT.APP.(FC)No.17/2016 Page 22 of 95
imported in a civil case for a husband to prove non-access
as the very concept of non-access is negative in nature.
But at the same time the test of preponderance of
probability is too light as that might expose many children
to the peril of being illegitimatized. If a court declares that
the husband is not the father of his wife's child, without
tracing out its real father the fallout on the child is
ruinous apart from all the ignominy visiting his mother.
The bastardised child, when grows up would be socially
ostracised and can easily fall into wayward life. Hence, by
way of abundant caution and as a matter of public policy,
law cannot afford to allow such consequence befalling an
innocent child on the strength of a mere tilting of
probability. Its corollary is that the burden of the plaintiff
husband should be higher than the standard of
preponderance of probabilities. The standard of proof in
such cases must at least be of a degree in between the two
as to ensure that there was no possibility of the child
being conceived through the plaintiff husband.”
(Emphasis supplied)
37. In para 11, the Supreme Court has clearly laid down that if
the husband and wife were living together during the time of
conception but the DNA test stated that the child was not born to
the husband, the conclusiveness in law by virtue of Section 112 of
the Indian Evidence Act would remain irrebuttable.
38. Some indication of the nature and extent of the scrutiny to be
conducted by the court, is to be found in paras 14 and 15 of Kamti
Devi v. Poshi Ram which read thus :
“14. In the present case the first appellate court, which is
the final fact-finding court, after evaluating the entire
evidence, came to the following conclusion:
“In the present case the plaintiff has examined all the
evidence which he possibly could do in the MAT.APP.(FC)No.17/2016 Page 23 of 95
circumstances. He has proved by convincing
evidence, that he did not visit his village or house
where the defendant was allotted one room. He has
further proved that the defendant also never visited
him at Mandi where he had been living for more than
2 years before the child was born to Kamti Devi. In
other words he has proved that he had no access or
opportunity for sexual intercourse with Defendant 1
for more than 280 days before Roshan Lal (Defendant
2) was begotten by Defendant 1.
15.The said conclusion was reached on the strength of the
evidence adduced by both sides and the first appellate court
was satisfied in full measure that the plaintiff husband had
no opportunity whatsoever to have liaison with the
defendant mother. The finding thus reached by the first
appellate court cannot be interfered with in a second appeal
as no substantial question of law would have flowed out of
such a finding.”
(Emphasis by us)
The reference is to “convincing evidence”; “proved that he
had no access or opportunity” and the entirety of evidence stood
placed before the court.
39. The above principles were reiterated by the Supreme Court
in Banarsi Dass in the following terms :
13. We may remember that Section 112 of the Evidence
Act was enacted at a time when the modern scientific
advancements with deoxyribonucleic acid (DNA) as
well as ribonucleic acid (RNA) tests were not even in
contemplation of the legislature. The result of a
genuine DNA test is said to be scientifically accurate.
But even that is not enough to escape from the
conclusiveness of Section 112 of the Evidence Act e.g.
if a husband and wife were living together during the
time of conception but the DNA test revealed that the MAT.APP.(FC)No.17/2016 Page 24 of 95
child was not born to the husband, the conclusiveness
in law would remain irrebuttable. This may look hard
from the point of view of the husband who would be
compelled to bear the fatherhood of a child of which
he may be innocent. But even in such a case the law
leans in favour of the innocent child from being
bastardised if his mother and her spouse were living
together during the time of conception. Hence the
question regarding the degree of proof of non-access
for rebutting the conclusiveness must be answered in
the light of what is meant by access or non-access as
delineated above. (See Kamti Devi v. Poshi
Ram [(2001) 5 SCC 311 : 2001 SCC (Cri) 892] .)”
40. In this judgment, the court had reiterated that even the result
of a genuine DNA test (which revealed that the child was not born
to the husband) said to be scientifically accurate, is not sufficient to
displace the conclusiveness of Section 112, if a husband and wife
were living together at the time of the conception.
41. We may also advert to the pronouncement of the Supreme
Court reported at (2009) 12 SCC 454 : AIR 2009 SC 3115 Sham
Lal alias Kuldeep v. Sanjeev Kumar & Ors., “....once the validity
of marriage is proved then there is strong presumption about the
legitimacy of children born from that wedlock.....”. In para 22 of
the precedent, the Supreme Court has observed that “the
presumption of legitimacy arises from birth in wedlock and not
from conception”.
It was observed that there was no evidence on record in this
case that Balak Ram at any point of time did not have access to
Smt. Durgi (mother of the plaintiff and defendant no.4).MAT.APP.(FC)No.17/2016 Page 25 of 95
42. The further observations of the Supreme Court in paras 39,
40 and 42 of the pronouncement, on the manner in which the
presumption under Section 112 can be reubutted, are important and
read as follows :
“39.The findings of the High Court on the interpretation
of Section 112 of the Evidence Act are based on correct
analysis of Indian and English cases for the last more
than a century. According to the legislative intention
and spirit behind Section 112 of the Evidence Act it is
abundantly clear that once the validity of marriage is
proved then there is strong presumption about the
legitimacy of children born from that wedlock. The
presumption can only be rebutted by a strong, clear,
satisfying and conclusive evidence. The presumption
cannot be displaced by mere balance of probabilities or
any circumstance creating doubt.
40. In the instant case, admittedly the plaintiff and
Defendant 4 were born to Smt Durgi during the
continuance of her valid marriage with the deceased
Balak Ram. Their marriage was in fact never dissolved.
There is no evidence on record that the deceased Balak
Ram at any point of time did not have access to Smt
Durgi. According to the clear interpretation of Section
112 of the Evidence Act, there is strong presumption
about the legitimacy of children born out of
continuation of the valid marriage.
xxx xxx xxx
42. It is well-settled principle of law that odiosa et
inhonesta non sunt in lege praesumenda (nothing odious
or dishonourable will be presumed by the law). The law
presumes against vice and immorality. In a civilised
society it is imperative to presume the legitimacy of a
child born during continuation of a valid marriage and
whose parents had “access” to each other. It is
undesirable to enquire into the paternity of a child
whose parents “have access” to each other. Section MAT.APP.(FC)No.17/2016 Page 26 of 95
112 of the Evidence Act is based on presumption of
public morality and public policy.”
(Emphasis by us)
43. The presumption under Section 112 of the Indian Evidence
Act can be displaced only by such evidence which meets a standard
higher than preponderance of probabilities, and not by a mere
preponderance of probabilities. The strong presumption under
Section 112 of the Indian Evidence Act of legitimacy of a child
born during marriage therefore can only be rebutted by “strong,
clear, satisfying and conclusive” evidence of “non access”.
III. What is the meaning of “access”and “non-access”
44. The present case raises issues which are really first
principles and fundamentals for consideration of an application
seeking DNA examination of a sample of a child wherein issue of
his or her paternity is raised. It is trite that the party seeking the
test, has to first and foremost make out a prima facie case that the
alleged father had no access to the mother of the child at the time
when the child could reasonably have been conceived.
45. Before examining any other aspect, it becomes necessary to
examine what would be the meaning of “access” in the context of
examination of the paternity of the child.
46. Earlier, the High Courts had held that “access” in an
examination of a paternity action means actual sexual intercourse
between the parties. This controversy came to a rest by three Judge
Bench pronouncement of the Privy Council reported at AIR 1934 MAT.APP.(FC)No.17/2016 Page 27 of 95
PC 49, Karapaya Servai v. Mayandi wherein it was held that the
word “access” means “no more than opportunity of intercourse”.
47. The factual matrix deemed sufficient by the Privy Council to
presume legitimacy of birth sheds valuable light on the facts before
us. The same reads thus :
“The materiality of these facts, however, is that in
December 1911, the parties were admittedly in touch with
each other, were residing at all events for a short period
in reasonable proximity, the wife being in the house of a
relative of the husband, and that there is nothing in the
agreement to suggest that she was unfaithful or that the
parties were on terms of personal hostility, though no
doubt the presence of the second wife would make an open
reconciliation difficult. If, therefore, the respondent could
have been begotton during this period his legitimacy was
undeniable.”
(Emphasis by us)
48. The above legal principle was approved by a three Judge
Bench of the Supreme Court in the decision reported at AIR 1954
SC 176 : 1954 SCR 424 Chilukuri Venkateswarlu v. Chilukuri
Venkatanarayan. In this case, a suit was filed by Chilukuri
Venkateswarlu, an infant represented by his maternal uncle as his
next friend for recovery of possession, on partition of ½ share of
certain properties, on the allegation that they were joint family
properties of his father, the defendant nos. 1 and himself. The
plaintiff was admittedly the son of defendant no.2, a legally
wedded wife of defendant no.1. The defence put forward by
defendant no.1 to the plaintiff’s claim, was a denial of his paternity.
The Supreme Court observed thus :MAT.APP.(FC)No.17/2016 Page 28 of 95
“On the admitted facts of the case, there could be no
question that the operation of Section 112 of the Indian
Evidence Act would be attracted and the plaintiff being
born during the continuance of a lawful wedlock between
his mother and his alleged father, a conclusive presumption
of legitimacy would arise, unless it was proved that the
parties to the marriage had no access to each other at any
time when he could have been begotten. The point for
determination, therefore, was whether on the evidence
adduced-in the case Defendant 1, upon whom the burden of
proving non-access admittedly lay, had succeeded in
discharging that burden. xxxx
It may be stated at the outset that the presumption which
Section 112 of the Indian Evidence Act contemplates is a
conclusive presumption of law which can be displaced
only by proof of the particular fact mentioned in the
section, namely, non-access between the parties to the
marriage at a time when according to the ordinary course
of nature the husband could have been the father of the
child. Access and non-access again connote, as has been
held by the Privy Council [ Vide Karapaya v. Mayandy, 12
Rang 243] , existence and non-existence of opportunities
for marital intercourse.
xxx xxx xxx
There is no evidence of any unnatural conduct on the part
of Defendant 1 towards the plaintiff's mother at about the
time when the plaintiff was conceived.
Apparently for some reason or other, the husband took up
an unnatural attitude, but this was a subsequent event and
whether he had really any grievance against his wife, or his
unnatural behaviour was due to the instigation of his third
wife, it is not necessary for us to investigate. On the
evidence, as it stands, we are clearly of opinion that
Defendant 1 did not succeed in proving that there was no
opportunity for intercourse between him and Defendant 2
at the time when the plaintiff was conceived. He rested his
whole case upon the allegation of unchastity of the MAT.APP.(FC)No.17/2016 Page 29 of 95
plaintiff's mother and of the plaintiff being born as the
result of fornication.
While rejecting that story, the High Court, in our opinion,
erred in holding that there was no opportunity for access
between the parties at the material period, relying mainly
upon what the husband himself said and did much after the
estrangement of feelings took place between the parties, no
matter whatever that was due to.”
(Emphasis supplied)
49. Mr. Gupta, learned senior counsel for the respondent no.1
has submitted that this aspect of the matter has also been
considered by the Supreme Court in two later judicial precedents
relied upon by the other side. Our attention is drawn also to the
pronouncement of the Supreme Court reported at (1993) 3 SCC
418:AIR 1993 SC 2295 Goutam Kundu v. State of West Bengal &
Anr. We extract hereunder the observations of the Supreme Court
which bind the present consideration :
“24. This section requires the party disputing the
paternity to prove non-access in order to dispel the
presumption. “Access” and “non-access” mean the
existence or non-existence of opportunities for sexual
intercourse; it does not mean actual “cohabitation”.
50. After detailed discussion, the court concluded thus :
“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.MAT.APP.(FC)No.17/2016 Page 30 of 95
(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.”
(Emphasis by us)
51. This aspect and the effect of the evidence of access have
been considered in some detail in another pronouncement of the
Supreme Court reported at AIR 2001 SC 2226:(2001) 5 SCC 311,
Kamti Devi (Smt.) & Anr. v. Poshi Ram, relevant portion whereof
is extracted hereunder :
“8.Earlier there was a controversy as to what is the true
import of the word “access” in Section 112 of the Act.
Some High Courts held that access means actual sexual
intercourse between the spouses. However, the controversy
came to a rest when the Privy Council held in Karapaya
Servai v. Mayandi [AIR 1934 PC 49 : 1934 All LJ 250]
that the word “access” connotes only existence of
opportunity for marital intercourse. The said legal
principle gained approval of this Court when a three-Judge
Bench held in Chilukuri Venkateswarlu v. Chilukuri
Venkatanarayana [AIR 1954 SC 176 : 1954 SCR 424]
that the law has been correctly laid down therein.”
(Emphasis by us)
52. It is therefore, settled law that cohabitation of the parties is
not an essential or only concomitant to establish “access”; that
“unnatural conduct” of the party or the conduct at the time the
child was conceived, personal hostility would be pertinent MAT.APP.(FC)No.17/2016 Page 31 of 95
circumstances. Parties being “in touch with each other”, “residing
for a short period in reasonable proximity” during the period when
the child was conceived are also material circumstances.
In fact, at the final consideration, the husband has to
conclusively establish that there was no access or opportunity at all
for a liaison with or sexual intercourse between the parties. As
delineated in Kamti Devi, the husband who challenges paternity of
a child born during the subsistence of the marriage, has to establish
with convincing evidence “not merely that he did not have the
opportunity to approach his wife but that she too did not have the
opportunity of approaching him during the relevant time”.
53. Mr. V.K. Gupta, Senior Advocate for the respondent no.1
herein has also urged that “access” therefore, actually refers to
merely opportunity to engage in sexual intercourse.
54. Let us examine the circumstances on record before the
Family Court, simply put, “whether there was any opportunity
available to them for coitus” or had access to each other, as
required by law.
IV. Summation of the principles laid down by judicial
precedents on consideration of an application for an
examination
55. So far as the court’s discretion to direct a DNA test is
concerned, the following principles can be summed out from the
above enunciation of law placed by both sides which have to guide
the court’s consideration : MAT.APP.(FC)No.17/2016 Page 32 of 95
(i) A rebuttable presumption of legitimacy is attached to a child
born of a married woman during a subsistence of marriage
or within 280 days of its severance (Ref.: Section 112 of the
Indian Evidence Act; AIR 2001 SC 2226, Kamti Devi v.
Poshi Ram – para 11; (2005) 4 SCC 449, Banarsi Dass v.
Teeku Datta – para 10; AIR 2009 SC 3115, Sham Lal alias
Kuldeep v. Sanjeev Kumar & Ors. – para 10)
(ii) The DNA test is not to be directed as a matter of routine.
Such direction can be given only in deserving cases (Ref.:
(2005) 4 SCC 449, Banarsi Dass v. Teeku Datta – para 14).
(iii) The court must exercise its discretion only after balancing
the interests of the parties and on due consideration whether
for a just decision in the matter, DNA test is eminently
needed. (Ref.: AIR 2003 SC 3450, Sharda v. Dharampal –
para 80 ; AIR 2010 SC 2851, Bhabani Prasad Jena v.
Convenor Secretary, Orissa State Commission for Women
& Anr. - Para 13)
(iv)(a)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. (Ref.: (1993)
3 SCC 418:AIR 1993 SC 2295 Goutam Kundu v. State of
West Bengal & Anr.)
(iv)(b)The court would exercise discretion, only after balancing the
interests of the parties and on consideration as to whether
for a just decision in the matter the DNA test is imminently
needed i.e. as to whether it is not possible for the court to
reach the truth without use of such test. For so concluding,
the court has to consider materials placed by both parties
and the test shall not be ordered in routine for a roving
enquiry.
(v) “Access” and “non-access” mean the existence or nonexistence
of opportunities for sexual intercourse; it does not
mean actual “cohabitation” (Ref.: AIR 1934 PC 49, MAT.APP.(FC)No.17/2016 Page 33 of 95
Karapaya Servai v. Mayandi ; (1993) 3 SCC 418:AIR 1993
SC 2295 Goutam Kundu v. State of West Bengal & Anr. –
para 24)
(vi) In a civilised society it is imperative to presume the
legitimacy of a child born during continuation of a valid
marriage and whose parents had “access” to each other
(Ref.: (2009) 12 SCC 454 : AIR 2009 SC 3115 Sham Lal
alias Kuldeep v. Sanjeev Kumar & Ors. – para 42)
(vii) Burden of proving illegitimacy is on the person who makes
such allegation (Ref. : para 10 of (2005) 4 SCC 449 Sh.
Banarasi Dass v. Mrs. Teeku Datta)
(viii) The party who wants to dislodge the conclusiveness has the
burden to show a negative, not merely that he did not have
the opportunity to approach his wife but that she too did not
have the opportunity of approaching him during the relevant
time. (Ref.: AIR 2001 SC 2226, Kamti Devi v. Poshi Ram –
para 10)
(ix) The presumption under Section 112 of the Indian Evidence
Act can only be displaced by a strong preponderance of
evidence, and not by a mere balance of probabilities or on
the basis of slender material. The standard of proof in such
cases must be of a degree in between the preponderance of
probability and proof beyond reasonable doubt by way of
abundant caution and has a matter of public policy (Ref.:
AIR 2001 SC 2226, Kamti Devi v. Poshi Ram – para 11 &
12)
(x) The presumption can only be rebutted by a strong, clear,
satisfying and conclusive evidence. The presumption cannot
be displaced by mere balance of probabilities or any
circumstance creating doubt (Ref.: (2009) 12 SCC 454 : AIR
2009 SC 3115 Sham Lal alias Kuldeep v. Sanjeev Kumar &
Ors. – para 39)MAT.APP.(FC)No.17/2016 Page 34 of 95
(xi) The verdict of displacement of the presumption shall not be
rendered on the basis of slender materials. If a husband and
wife were living together during the time of conception but
the DNA test revealed that the child was not born to the
husband, the conclusiveness in law would remain
irrebuttable (Ref.: (2001) 5 SCC 311, Kamti Devi v. Poshi
Ram – Para 11; (2005) 4 SCC 449, Banarsi Dass v. Teeku
Datta – para 13).
(xii) The courts must be inclined towards upholding the
legitimacy of the child unless the facts are so compulsive and
clinching as to necessarily warrant a finding that the child
could not at all have been begotten to the father and as such
a legitimation of the child would result in rank injustice to
the father (Ref.: Dukhtar Jahan v. Mohd. Farooq [(1987) 1
SCC 624).
We consider at a later stage in this judgment the precedents
considering the effect of result of a DNA examination.
V. Prima facie case
56. From the above enunciation of law by the Supreme Court, it
is crystal clear that the Family Court had to be satisfied that the
husband had established a strong prima facie case of non-access to
dispel the presumption of legitimacy of the child under Section 112
of the Indian Evidence Act and only when such strong prima facie
case had been established, could the court consider the direction for
the DNA examination. So what constitutes a strong prima facie
case?
57. So far as the expression “prima facie case” is concerned, in
the judgment reported at AIR 1958 SC 79, Martin Burn Ltd. v.
R.N. Banerjee, the Supreme Court had observed thus :
“27. …A prima facie case does not mean a case proved to
the hilt but a case which can be said to be established if the
evidence which is led in support of the same were believed.
While determining whether a prima facie case had been
made out the relevant consideration is whether on the
evidence led it was possible to arrive at the conclusion in
question and not whether that was the only conclusion which
could be arrived at on that evidence. It may be that the
Tribunal considering this question may itself have arrived at
a different conclusion. It has, however, not to substitute its
own judgment for the judgment in question. It has only got
to consider whether the view taken is a possible view on the
evidence on the record. (See Buckingham & Carnatic Co.,
Ltd. [ (1952) Labour Appeal Cases 490] .
This interpretation was reiterated by the Supreme Court in its
later pronouncements reported at Bangalore Woollen, Cotton and
Silk Mills Co. Ltd. V. B Dasappa : AIR 1960 SC 1352 : (1960) 2
LLJ 39; Nirmala J. Jhala v. State of Gujarat : (2013) 4 SCC 301
and Cholan Roadways Ltd. v. G. Thirugnanasambandam : (2005)
3 SCC 241.
58. So what is the prima facie case made out by the husband on
record as on 16th October, 2015 when he filed the application u/s
151 of the CPC for direction to conduct the DNA examination of
the child?
59. By that date, the learned Family Court Judge also had the
pleadings of the parties as well as substantial evidence of the
respondent no.1 available before him which ought to have formed
part of the “prima facie” consideration.
VI. Whether the case of non-access was specifically pleaded by
the respondent no.1
60. To justify the order for a DNA examination, before anything
else, the foremost requirement in the present case for establishing
illegitimacy even prima facie, is a specific pleading of “nonaccess”,
that is to say a plea of no opportunity for cohabiting as
husband and wife and an opportunity of establishing marital
relations. It therefore, becomes necessary to scrutinize the petition
filed by the appellant to examine as to whether he had pleaded nonaccess
at the relevant time.
61. Let us see what the respondent no.1 has to say about access
to his wife in his divorce petition. In para 6 of the divorce petition,
the respondent no.1 has pointed out that the parties were posted at
different places; that there was change in her behaviour towards
him and that she started to avoid him without any rhyme or reasons
due to which the matrimonial life of the parties “started to fall
within the periphery of strained relationship and the cohabitation
between the petitioner and respondent no.1 started to become a
rare event”.
In para 7, respondent no.1 states that they resided as husband
and wife together “as a last occasion at Lucknow”.
In para 8, the respondent no.1 states that “to save his
matrimonial life, he made all efforts from his side but the conduct
of the respondent no.1 (wife) towards the petitioner was pathetic
during this period”.
62. In para 10, the respondent no.1 has set out his postings
admitting that from 2011, the parties were posted at different
places. The respondent no.1 has moved from District Lakhimpuri,
Kheri District, U.P. in 2011; remained as District Magistrate,
Bareilly from 2011 to 8th June, 2014 and thereafter as District
Magistrate, Aligarh when he filed the petition.
However, he does admit that the appellant joined his
company at his places of postings, though it was a “rare entity”.
The respondent no.1 has attributed neglect to the appellant
wife who, admittedly, was posted at different places.
63. It is most important to note that in para 11, the husband has
stated that from the “period 2011 to December 2013”, the
appellant and the respondent no.1 “hardly cohabited”.
64. At the same time, a backhanded statement is made that “from
the start of the year 2013, even the access to cohabit was denied”
to him by the appellant. How is “the start of the year 2013” to be
computed? Clearly an indefinite position shows that the
respondent is not sure of his own case. In fact, it reflects that even
in the start of the year 2013, the parties were cohabiting and having
a normal relationship.
65. From the above pleadings, there can be no manner of doubt
that the respondent no.1 has not stated that he had no access to the
appellant wife at the relevant time. On the contrary, he has
submitted that they were cohabiting from the period 2011 to
December, 2013 albeit “hardly”.
66. It needs no elaborate detailing or consideration of pleadings
that “rare entity”, “pathetic”, “hardly cohabited”, “hardly”
cannot be equated to the categorical assertion of no access which
is required by law to displace the presumption under Section 112 of
the Indian Evidence Act. Consequently it was not even the
husband’s clear and unequivocal case in the divorce petition that he
had no access to his wife at the time when the child of the parties
could have been conceived.
67. Baby ‘X’ was born on 6th of October 2013. The relevant
period of 280 days i.e. 9 months 7 days prior thereto would take us
to start of the end of December, 2012/first week January, 2013
(covering the “start of the year 2013” as well. The possible period
of Baby ‘X’ conception would be around 31st December, 2012.
It is also the appellant’s case that the parties “hardly
cohabited” from 2011 to December, 2013. ‘H’ has thus admitted
“access” at the relevant time.
VII. Whether there is non-traverse by the wife of the husband’s
pleadings, and thereby, deemed admission thereof?
68. It is argued by Mr. V.K. Gupta, learned Senior Counsel for
the respondent no.1 that in her written statement/reply to the
petition under Section 13(1)(i) of the Hindu Marriage Act, 1955,
the appellant wife has not specifically denied the averments of the
appellant. The submission is that there is no averment by her in
either the reply or the counter claim that there was no denial of
access during the “relevant time” or that there was physical access
provided to the respondent no.1. In this regard, reference is made
to the appellant wife’s response to paras 6, 8, 10, 11, 13, 15, 16 and
36 of the divorce petition.
It is submitted that therefore she is deemed to have admitted
the husband’s case. Mr. V.K. Gupta, ld. Senior Counsel for the
respondent no.1 has submitted that as a result, nothing further is to
be examined by the court so far as paternity of the child is
concerned.
69. Placing reliance on Rules 3 to 5 of Order VIII of the Code of
Civil Procedure, Mr. V.K. Gupta, ld. Senior Counsel for the
respondent no.1 has vehemently urged that the denial by the
appellant had to be specific; that every allegation in the petition
which is not denied specifically or by necessary implication, has to
be taken to be admitted. It is submitted that the appellant wife in
the present case has failed to specifically deny each and every
assertion made by the respondent no.1 husband which by necessary
implication have to be taken to be admitted by her and as a result,
the wife is deemed to have admitted that the respondent no.1
husband had no access to her at the relevant time.
70. Reliance is also placed on Section 58 of the Indian Evidence
Act, 1872 to contend that such facts which by any rule of pleading
are deemed to have been admitted, need not be proved.
71. Mr. Gupta has requested this court to refrain from making
any comment on the plea of the respondent no.1 – husband
regarding access to his wife as it is the subject matter of trial before
the Trial Court and further that no observation should be made on
the conduct of the respondent no.1 husband for the same reason.
This submission, however, fails to consider the requirement of law
which mandates that the court has to be satisfied that a person
seeking DNA examination has to establish a “strong prima facie
case” as well as inter alia the iminent need for ordering the same,
in the justice of the case while also evaluating the equity or
assessing the interest of justice. Admissions, if any, have to be
examined from this perspective. It needs no elaboration that
admissions of both sides have to be examined and their effect on
“prima facie” case evaluated.
Therefore, during this consideration, the court would need to
examine the pleadings of the parties in order to ascertain as to
whether there was a failure to non-traverse of the assertions of the
plaintiff by the appellant wife and which are the facts which could
be deemed to have been admitted by her.
72. In order to avoid prolixity, we extract hereunder some of the
material assertions in the reply of the appellant wife to the divorce
petition :
“4. That the contents of Para 6 to Para 11 of the
Petition are denied since the same are based on
incorrect and wrong facts which is nothing but figment
of imagination of the Petitioner and has been raised
only to malign the reputation of the Answering
Respondent and create frivolous and fabricated
grounds for seeking divorce from the Answering
Respondent on the ground of adultery which itself is
totally false and malicious.
5. That the contents of Para 12 of the Petition is
denied to the extent that the pregnancy of the Answering
Respondent was known to the Petitioner ever since the
Answering Respondent became aware of the same
through medical examination which was conducted
sometimes in the month of February 2013, and
therefore, the averments contrary to the same are not
accepted as they are false and frivolous.
6. That the contents of Para 13 to Para 16 of the
Petition are vehemently denied and it is submitted that
the Petitioner is not only creating a false and
malicious ground but is stooping so low that he is
trying to allege that he is not the biological father of
his own child which is not only unfortunate but also
shows the dirty and scheming mentality of the
Petitioner. In fact, it is very painful for the Answering
Respondent to make this submission before the
Hon’ble Court that the Petitioner was always eager to
have a male child and was therefore, pressurizing the
Answering Respondent to get a sex determination test
ever since the news of conception had reached him.
However, the Answering Respondent never agreed to
this illegitimate demand and always insisted that she
was happy to have a healthy child, be it a boy or a girl
but the petitioner always got upset whenever, he was
told that even a girl child was as precious as a male
child. As the Petitioner always stressed on the fact that
in his family tradition the first child has always been a
male child throughout and therefore, he did not want to
break this tradition under any circumstances. The
purpose told by him to the Answering Respondent for
getting sex determination test was only to ensure that it
is a male child otherwise his intention was to get the
child aborted in case of a female child to which the
Answering Respondent never succumbed.
7. That the contents of Para 17 to Para 24 of the
Petition are vehemently denied by the Answering
Respondent for the reason that the entire averments
made in these paragraphs are not only false and
fabricated but have also been done only with a view to
malign the reputation of the Answering Respondent as
well as her family and to extract a huge amount of
money from them as a black mailing tactics so that the
Answering Respondent and her family may succumb to
such pressure as their family is one of the most reputed
and prestigious family of the State of Uttar Pradesh. In
fact, the perusal of the contents of the aforesaid
paragraphs also shows the sick mentality of the
Petitioner who has no hesitation in knowingly making
such false and wild allegations against his own child
and wife only with a purpose to convert the said
allegations into monetary benefits. xxx xxx xxx
8. That the contents of Para 25 to Para 26 of the
Petition are vehemently denied. It is submitted that the
averments made therein are not only false and fabricated
but also shows the sick and dirty mentality of the
Petitioner who is not only making wild allegations but is
also putting words into the mouth of the Answering
Respondent without substantiating anything on record
with a view to mentally harass and torture the
Answering Respondent. It is submitted that there is not
an iota of truth in the allegations made by the
Petitioner and he is only trying to create a strong
ground as well as sympathy for himself. Such conduct
of the Petitioner should be strongly condemned and the
ground of adultery raised by him be rejected at the
outset by this Hon’ble Court.
11. That the contents of Para 40 to Para 46 of the
Petition are vehemently denied. It is submitted that a
perusal of the entire Petition would clearly show that
the Petitioner has only tried to repeat the false and
fabricated facts related to this case in one way or the
other only with a view to malign and harass the
Answering Respondent and her family. The main
purpose of the Petitioner is to extract a huge amount of
money from the Answering Respondent and her family
as she is the only child of her parents and therefore, the
Petitioner is well aware that they would do everything to
ensure the happiness of their only child and grand child.
Therefore, in the light of the aforesaid facts and
circumstances, the ground of adultery taken by the
Petitioner should not only rejected but also a heavy
cost should be imposed on the Petitioner for making
false and fabricated averments and wasting the
precious time of this Hon’ble Court. However, the
Answering Respondent prays for grant of divorce from
the petitioner on the ground of cruelty meted out to her
by the Petitioner as she will, under no circumstances,
like to stay with such a person who has such sick,
pervert and dirty mentality and is a threat to her life
and her daughter’s life. Further, in view of the
manner in which the Plaintiff has vilified the
Answering Respondent and the innocent child, the
Answering Respondent seeks full and sole custody of
the child and no legal rights or visitation rights be
given to the Plaintiff now or in future so that he does
not further endanger the child’s life and jeopardize her
in the presence or future.”
(Emphasis by us)
73. Before proceeding with the discussion, we may refer to the
two judgments placed by Mr. V.K. Gupta, learned Senior Counsel
for the respondent no.1 in support of the submission that this court
must deem the allegations in the divorce petition having been
admitted by the wife. Mr. Gupta has placed reliance on para 11 of
the judicial pronouncement reported at AIR 1964 SC 538, Badat &
Co. Bombay v. East India Trading Co. which reads thus :
“11. Order 7 of the Code of Civil Procedure prescribes,
among others, that the plaintiff shall give in the plaint
the facts constituting the cause of action and when it
arose, and the facts showing that the court has
jurisdiction. The object is to enable the defendant to
ascertain from the plaint the necessary facts so that he
may admit or deny them. Order 8 provides for the
filling of a written statement, the particulars to be
contained therein and the manner of doing so; Rules
3, 4 and 5 thereof are relevant to the present enquiry
and they reads:
“Order 8 Rule 3. It shall not be sufficient for a
defendant in his written statement to deny
generally the grounds alleged by the plaintiff, but
the defendant must deal specifically with each
allegation of fact of which he does not admit the
truth, except damages.
Rule 4. Where a defendant denies an allegation of
fact in the plaint, he must not do so evasively, but
answer the point of substance. Thus if it is alleged
that he received a certain sum of money, it shall
not be sufficient to deny that he received that
particular amount, but he must deny that he
received that sum or any part thereof, or else set
out how much he received. And if an allegation is
made with diverse circumstances, it shall not be
sufficient to deny it along with those
circumstances.
Rule 5. Every allegation of fact in the plaint, if
not denied specifically, or by necessary
implication or stated to be not admitted the
pleading of the defendant, shall be taken to be
admitted except as against a person under
disability.
Provided that the court may in its discreation require
any fact so admitted to be proved otherwise than by
such admission.”
These three rules form an integrated code dealing with
the manner in which allegations of fact in the plaint
should be traversed and the legal consequences
flowing from its non-compliance. The written
statement must deal specifically with each allegation of
fact in the plaint and when a defendant denies any such
fact, he must not do so evasively, but answer the point
of substance. If his denial of a fact is not specific but
evasive, the said fact shall be taken to be admitted. In
such an event, the admission itself being proof, no other
proof is necessary. The first para of Rule 5 is a
reproduction of Order 19, Rule 13 of the English rules
made under the Judicature Acts. But in mofussil Courts
in India, where pleadings were not precisely drawn, it
was found in practice that if they were strictly construed
in terms of the said provisions, grave injustice would be
done to parties with genuine claims. To do justice
between those parties, for which Courts are intended,
the rigor of Rule 5 has been modified by the
introduction of the proviso thereto. Under that proviso
the court may, in its discretion, require any fact so
admitted to be proved otherwise than by such
admission. In the matter of mofussil pleadings, Courts,
presumably replying upon the said proviso, tolerated
more laxity in the pleadings in the interest of justice.
But on the original side of the Bombay High Court, we
are told, the pleadings are drafted by trained lawyers
bestowing serious thought and with precision. In
construing such pleadings the proviso can be invoked
only in exceptional circumstances to prevent obvious
injustice to a party or to relieve him from the results of
an accidental slip or omission, but not to help a party
who designedly made vague denials and thereafter
sought to rely upon them for non-suiting the plaintiff.
The discretion under the proviso must be exercised by
a court having regard to the justice of a cause with
particular reference to the nature of the parties, the
standard of drafting obtaining in a locality, and the
traditions and conventions of a court wherein such
pleadings are filed. In this context the decision this
context the decision in Tildesley v. Harper [ (1878) LR
7 Ch D 403] will be useful. There, in an action against a
lessee to set aside the lease granted under a power, the
statement of claim stated that the donee of the power
had received from the lessee a certain sum as a bribe,
and stated the circumstances; the statement of defence
denied that that sum had been given, and denied each
circumstance, but contained no general denial of a bribe
having been given. The court held, under rules
corresponding to the aforesaid rules of the Code of Civil
Procedure, that the giving of the bribe was not
sufficiently denied and therefore it must be deemed to
have been admitted. Fry., J. posed the question thus:
What is the point of substance in the allegations in the
statement of claim? and answered it as follows:
“The point of substance is undoubtedly that a bribe was
given by Anderson to Tildesley, and that point of
substance is nowhere met … no fair and substantial
answer is, in my opinion, given to the allegation of
substance, namely, that there was a bribe. In my opinion
it is of the highest importance that this rule of pleading
should be adhered to strictly, and that the court should
require the defendant, when putting in his statement of
defence, and the plaintiff, when replying to the
allegations of the defendant, to state the point of
substance, and not to give formal denials of the
allegations contained in the previous pleadings without
stating the circumstances. As far as I am concerned, I
mean to give the fullest effect to that rule. I am
convinced that it is one of the highest benefit to suitors
in the court. xxx”
(Emphasis supplied)
74. Mr. Gupta, learned Senior Counsel for the respondent no.1
has sought to urge that the instant case was being conducted in
Delhi, a metropolis. However, as has been noted above,
professionally the same efficiency and standards which counsels in
this city may exhibit so far as civil matters (as was before the
Supreme Court in Badat & Co. Bombay), may not apply when it
comes to matters involving close details of sexual relations
between a husband and wife as in the present case. We examine
this aspect a little later. And, in any case, the pleadings of the wife
have to be tested on the same standards as those of the husband.
75. The second judgment relied upon by Mr. V.K. Gupta
reported at (2003) 8 SCC 673, Sushil Kumar v. Rakesh Kumar
relates to an election dispute wherein the Supreme Court was
considering the question of disqualification of a candidate on
grounds of age to contest election to the State Legislative
Assembly. Specific assertions of facts relating to the date of birth,
names, date of birth of the petitioner and the respondent and his
elder brother; schooling were made which had not been specifically
traversed. In this context, the Supreme Court making reference to
Section 58 of the Indian Evidence Act observed that a fact admitted
need not be proved. There can be no dispute at all with this well
settled legal proposition. However, the standards which would
apply to the pleadings in the election petition cannot apply to the
pleadings in a matrimonial case. This would be more so as in a
case as the present one.
76. Even otherwise, learned Senior Counsel for the appellant
places reliance on the observations of the Supreme Court in the
judgment reported at AIR 1976 SC 461, Madan Gopal Kanodia v.
Mamraj Maniram & Ors. to submit that the scrutiny by the court
should be meaningful and should not be in such a manner as to
defeat a genuine claim. We extract hereunder the observations of
the Supreme Court in para 26 of this pronouncement which are
relied upon by the appellant :
“26. In the written statement filed by the plaintiff under
Order 6, Rule 4 of the Code of Civil Procedure, the
particulars and essential details of the 21 bales of cloth
were clearly mentioned in para 1(b). Further more,
counsel for the plaintiff gave a statement before the trial
court on September 5, 1952 where also all the essential
details regarding the 200 bales of cloth were given. In
the statement the counsel for the plaintiff admitted that
the plaintiff had received the sale proceeds of 179 bales
of cloth and that 21 bales of cloth remained unaccounted
for. In the evidence also the plaintiff has sought to prove
the very case set up in the plaint as also in the written
statement filed later under orders of the Court. We are
unable to see any substantial variation between the
pleadings of the plaintiff and the evidence led by him at
the trial. It is well settled that pleadings are loosely
drafted in the courts, and the courts should not
scrutinise the pleadings with such meticulous care so
as to result in genuine claims being defeated on trivial
grounds. In our opinion, the finding of the High Court
that there was wide gap between the pleadings and the
proof is not at all borne out from the record of the
present case.”
(Emphasis by us)
77. We may also advert to the following observation of the
Supreme Court in para 51 of the pronouncement reported at AIR
1952 SC 47, Kedar Lal Seal & Anr. V. Hari Lal Seal with regard
to the pleadings which were clumsily or inartistically worded :
“51. I would be slow to throw out a claim on a mere
technicality of pleading when the substance of the thing
is there and no prejudice is caused to the other side,
however clumsily or inartistically the plaint may be
worded. In any event, it is always open to a court to
give a plaintiff such general or other relief as it deems
just to the same extent as if it had been asked for,
provided that occasions no prejudice to the other side
beyond what can be compensated for in costs.”
78. On the aspect of the technical view being pressed on behalf
of the respondent no.1-husband, we are compelled to note the
observation in para 6 of the judgment reported at (1975) 1 SCC
774, Sushil Kumar Sen v. State of Bihar of Krishna Iyer J while
concurring with the majority opinion, had written that “Justice is
the goal of jurisprudence – processual, as much as substantive”.
Krishna Iyer, J had noted that “the processual law so dominates in
certain systems as to overpower substantive rights and substantial
justice. The humanist rule that procedure should be the handmaid,
not the mistress, of legal justice compels consideration of vesting a
residuary power in Judges to act ex debito justiciae where the
tragic sequel otherwise would be wholly inequitable. xxx.
Parliament, I hope, will consider the wisdom of making the Judge
the ultimate guardian of justice by a comprehensive, though
guardedly worded, provision where the hindrance to rightful relief
relates to infirmities, even serious, sounding in procedural law.
Justice is the goal of jurisprudence — processual, as much as
substantive. While this appeal has to be allowed, for reasons set
out impeccably by my learned brother, I must sound a pessimistic
note that it is too puritanical for a legal system to sacrifice the end
product of equity and good conscience at the altar of processual
punctiliousness and it is not too radical to avert a breakdown of
obvious justice by bending sharply, if need be, the prescriptions of
procedure. The wages of procedural sin should never be the death
of rights.”
Krishna Iyer, J had also noted that “the mortality of justice at
the hands of law troubles a Judge's conscience and points an angry
interrogation at the law reformer.”
79. It is trite that courts are required to meaningfully construe
the entire gamut of pleadings before arising at the conclusions and
outcomes of cases.
80. There can be no dispute with these authoritative
pronouncements especially in the context of pleadings in
matrimonial cases which have to guide our consideration of the
pleadings of the parties.
81. There is one more aspect of this matter which over burdened
courts overlook. Courts get several opportunities to examine
pleadings, evidence as well as enter into discussions involving
sexual references. The same could arise in cases as the present
involving birth of a child during the subsistence of a marriage or
allegations of impotency or cases involving sexual offences
including rape, incest, etc; allegations of impotency against a
spouse in any matrimonial case amongst others. In each of these
cases, parties are required to plead and disclose what is most
internal/confidential/intimate to them.
82. One of us (Gita Mittal, J.) has had the opportunity to
examine an appeal against a person convicted for offence of rape
under Section 376 of the IPC. In the judgment dated 29th
September, 2009 entitled Virender v. The State of NCT of Delhi,
Crl. App.No.121/2008, it was noticed that the conviction rested on
statements attributed to the child victim. The first was the
statement recorded by the investigating officer under Section 161
of the CrPC; the second recorded by the Metropolitan Magistrate
under Section 164 of the CrPC and the third to the sessions court
during the trial. The persons recording the statements of the victim
in Virender were personnel trained to do so, one being a police
official recording the statement under Section 161 during
investigation, two of them being judges of experience and
expertise, namely, the Metropolitan Magistrate who recorded the
statement under Section 164 Cr.P.C. and lastly, the Additional
Sessions Judge who recorded the statement during trial who while
recording the statement of the accused under Section 313 of the
Cr.P.C. referred to the evidence of his having misbehaved with the
prosecutrix.
83. The statements attributed as having made by the victim at
these three stages, while referring to the acts of the offender, note
that he had done “gandi harkatein”; “galat kaam” and indulged in
misbehaviour. These statements hopelessly failed to bring out the
ingredients of the offence. From this failure to bring out the bare
ingredients of the offence, one glaring factor had shone through
which was noted in the following terms :
“79. In the instant case, the evidence recorded by the
learned Metropolitan Magistrate under section 164 of
the CrPC and by the court appears to suggest
embarrassment of the court to put questions of any
kind to the prosecutrix and witness so as to elucidate
the complete truth from her resulting in, not
contradictory but incoherent testimony of the child
victim who has concealed the essential ingredients of
the offence. Use of appropriate language would enable
the necessary decency to be maintained in the
proceedings and the record.
A judge is require to be mindful that the edifice on
which the entire structure of the evidence of the
prosecution stands is the trustworthiness of the
testimony of the witness. Therefore, the manner and the
language in which the evidence is recorded is of extreme
importance.
84. The issue with regard to teaching of offences
regarding sexual assault and rape itself has been a
source of much discussion. I am informed that there are
instances of even legal educators being bashful and
embarrassed about teaching such subjects. Judges and
counsels are products of the legal education. The
multi-faceted problem and concerns noticed above are
not confined to ensuring gender justice in courts alone.
In this background, it is absolutely imperative that these
areas of law and the issues which have been raised
herein are taken up with all seriousness. Perhaps the
programme of continuing legal education needs to take a
look on these questions.”
(Emphasis by us)
84. We have made a detailed reference to the above for the sole
reason that, when it comes to matters of deepest intimacy involved
in a sexual encounter even in a matter of pain (sexual violence),
most individuals as victims are hesitant to disclose the details or as
professionals/experts (lawyers, police, judges) to discuss them in
public space. Hence, the nature of pleadings in cases involving
disclosure of intimate details of the sexual life of even partners of a
marriage.
85. The same is apparent from the expressions used by the
husband in the present divorce petition as well. He has made bald
statements. Whereas, if specific detail was to be insisted upon, he
was required to state the exact dates and places when he had sought
to engage in the sexual intimacies with his wife, dates and
particulars of which attempt or invitation or effort by him was
spurned or refused by her. He does not do so. The failure to reflect
in more detail on the parties intimate relationship is a reflection of
his natural embarrassment to describe close details of the parties
intimate sexual life and of what must be the most private to them.
86. We have extracted above the husband’s petition wherein also
he refers to the alleged extra marital relationship also in extremely
general terms. No specific details or instances are cited by him.
Mr. Sethi, learned Senior Counsel would submit that the
respondent no.1 was himself not sure of his case and has set-up
contrary pleas in almost every paragraph of his divorce petition
with regard to access. These varied assertions of access (ranging
from “hardly”) are spread all over the petition.
87. Reading of the above would also show that as mandated by
Rule 4 of Order VIII, the answering party must answer “point of
substance” in the pleadings of the other side. In the case in hand,
the point of substance, as pressed in the divorce petition is whether
the appellant wife has committed adultery with the person cited as
respondent no.2 and whether the child born on 6th October, 2013 is
a result of such act of adultery. Put more simply, the appellant
wife has to deal with matters relating to intimate details of her
matrimonial life with the respondent no.1 husband and alleged
extra marital affair with the respondent no.2.
88. Mr. Sandeep Sethi, learned Senior Counsel for the appellant
wife has submitted that the appellant has categorically stated in the
written statement that the child to whom she had given birth on 6th
October, 2013 was the respondent no.1 husband’s. It is submitted
that she has clearly stated that the allegations of the husband were
demeaning, defaming, vilifying and false allegations which
amounted to cruelty. She has categorically denied the adultery
attributed to her and specifically adverted to “his child”. The
submission is that the pleadings have to be read as a composite
whole and not as if each sentence was disjointed.
89. The scrutiny of the above extract of the written statement
would show that the wife has categorically denied that she has
committed any act of adultery, that she has no association at all
with the respondent no.2. She has repeatedly asserted that
“incorrect and wrongfacts”; “figment of imagination of the
petitioner”; “frivolous and fabricated ...ground of adultery” (para
4); that the child born on 6th of October 2013 is “his own child”,
“false and malicious...trying to allege that he is not the biological
father of his own child” (para 6); “false and wild allegations
against his own child and wife” (para 7); “there is not an iota of
truth in the allegations made by the petitioner” (para 8); “ground of
adultery taken by the petitioner should not only be rejected but also
heavy costs” (para 11).
In para 6 of the written statement, the anguish of the wife is
expressed when she has asserted how “painful” it was for her to
make the submissions. In para 11 of her written statement, the wife
states that “perusal of the entire petition would show that the
petitioner has only tried to repeat the false and fabricated facts
related to this case in one way or other ...”.
90. In this background, can it be held that the appellant has
failed to answer the point of substance? The answer has to be in
the negative. The wife has effectively denied the substantive case
of the husband and also generally denied each and every assertion
made by the husband each time he has repeated the allegation.
The wife’s categorical denial of the allegation of adultery
and insistence that the child was the biological child of the
respondent no.1 even at one place coupled with her general denials
elsewhere in the written statement is sufficient denial in law, more
so when she asserts pain in having to deal with such allegations in
the pleadings. There is no requirement in law for the wife to go on
repeating the same pleas. Clearly even if the appellant has so
declared in one place, it was sufficient denial of the repetitive plea
of the respondent no.1.
VIII. Is the court bound to pass orders premised on admissions
of parties?
91. Without expressing any opinion at this stage of the impact of
the wife’s pleadings on the bald statements by the husband, the
proposition pressed by Mr. Gupta, learned senior counsel for the
husband that the wife has failed to deny the allegations of the
husband entitling him to the relief, can be tested from yet another
angle.
92. Even if the submissions of Mr. V.K. Gupta, learned Senior
Counsel for the respondent no.1 that the respondent no.1- husband
had specifically asserted no access, that such fact as well as the fact
that the child born on 6th October, 2013 was not born from the
wedlock and cohabitation of these two parties, was actually
admitted by the appellant wife, was the family court bound to
accept this position as admitted and to pass an order based on such
admission alone? The position in law is clearly to the contrary.
93. We find that the proviso to Rule 5 of Order VIII itself grants
discretion to the court to “require any fact so admitted to be proved
otherwise than by such admission”. A similar discretion is
reserved to the court even in Section 58 of the Indian Evidence
Act, 1872 wherein the proviso confers such discretion on the court
to require facts admitted to be proved “otherwise than by such
admissions”. The reason for such discretion, in a case like the
present one, is obvious.
94. Let us assume a case where the husband’s pleadings qua
denial or lack of access to the wife to enable her to conceive their
child was specific. In her response/reply/written statement, instead
of denying the husband’s plea of “no access”, the wife actually
admitted the assertions of the husband.
95. The parties may have entered into a conspiracy to establish
that the child was not theirs for any malafide reasons, say for
instance, reasons of any tangible benefits arising out of inheritance;
estate benefits; immigration and citizenship etc.; or to claim any
benefit provided by law. They could collude to deny paternity or
relationship. Say, where a government scheme operates to confer
immovable property benefit on individuals who are not
related/siblings and it may be financially beneficial for establishing
that they are not related. In the case of contested matrimonial
litigation and child custody battles also, parties could falsely agree
to paternity issues to ensure denial of custody to the husband.
96. It needs no elaboration that it is the rights of the child which
are affected by any order accepting such pleadings of the parents.
Such child is not before the court. In the face of the admissions,
was the court bound to return a finding that the child was not his?
The answer has to be an emphatic no. Such finding of the court
could wreak havoc in the life of Baby ‘X’ who is the innocent party
not before the court. It could adversely affect, even disentitle, such
child to rights in immoveable property.
The court has therefore, to independently ascertain the
correctness and genuineness of the allegation by one party,
irrespective of the admission in the pleadings of the other in as
much as it is the rights of the child involved.
97. In the present case, even if the wife’s pleadings could be
treated as an admission of the husband’s case, the court is bound to
scrutinize the same with circumspection and require corroboration
of the admission, if any, by independent evidence to premise a
court order thereon.
98. In any event, looked at from any angle, we find that even if it
could be held that the husband’s pleadings had not been traversed,
we have noted above that the respondent wife was called upon by
the husband not to traverse the case of complete non-access but of
“hardly cohabited” between “2011 to December, 2013”.
99. We find that in his cross-examination on the 24th of
September 2015, the respondent no.1 husband has admitted that
during official meetings, the appellant wife used to come to his
residence for lunch or breakfast. The husband has also admitted
that his mother used to go to stay with the appellant wife during her
visits to Pilibhit.
100. In the present case also, the parties though posted in different
places, were coming together in reasonable proximity with
opportunity of intercourse.
101. The petition itself mentions that the parties were posted at
different places. Hence the statement by the husband that the
parties from 2011 to December, 2013 “hardly cohabited” i.e.
reduced opportunity relatable to official postings. But there is no
averment by the husband that there was no opportunity at all or that
the wife had no access to him (Ref.: Kamti Devi (Smt.) & Anr. v.
Poshi Ram)
102. Prima facie, the respondent no.1 is unable to support a case
of no access and instead of supporting the propounded allegations
of adultery, the circumstances on record and the evidence of the
respondent no.1 also lean in favour of the presumption under
Section 112 of the Indian Evidence Act. Even if it could be held
that the wife has admitted such case, it could not be held that the
wife had stated that the parties had no cohabitation as husband and
wife during the relevant time. It is not possible to agree with the
respondent no.1 that there was deemed admission of “no
cohabitation” or “non-access” by the wife.
IX. Admissions of paternity by the husband on court records –
impact on “prima facie case”
103. An examination as to whether the respondent no.1-husband
had made out a prima facie case for grant of the prayer for the
DNA examination, cannot be completed without examining the
material in the present case in the form of admissions on the part of
the husband on the record.
104. It is the admitted case of the husband on 1st October, 2014 a
joint petition being HMA No. 1099/2014, was filed in the court of
Principal Judge, Saket, New Delhi under Section 13B(1) of the
Hindu Marriage Act. We have extracted above para 7 of this
petition, wherein the respondent no.1 had unequivocally and
unconditionally declared that Baby ‘X’ was born to them on 6th
October, 2013 who was in custody of the mother at Sultanpur. The
respondent no. 1 had also referred to the agreement that the
permanent custody of this child would remain with the wife.
A joint statement was made in support of the petition
reiterating and declaring that there was one female child born on 6th
October, 2013. This petition came to be withdrawn on account of
the objection with regard to its maintainability on account of
territorial jurisdiction of the court.
105. On 31st October, 2014, the parties had jointly filed a second
petition under Section 13B(1) of the Hindu Marriage Act which
was registered as HMA No. 783/2014 before the Family Court,
Patiala House, New Delhi for the relief of dissolution of their
marriage by a decree of divorce by mutual consent. This petition
also contained an identical admission of the birth of the child on 6th
October, 2013 in para 7 as well as the agreement with regard to her
permanent custody.
106. Both the petitions were supported with affidavits of the
husband clearly stating that the consent was voluntary and that
there was no collusion between the parties in the submissions made
in the petition.
107. We find that so far as drafting and filing of the petitions
under the Hindu Marriage Act are concerned, Rules have been
notified by the Delhi High Court which are captioned as Rules to
Regulate Proceedings under the Hindu Marriage Act, 1955. The
proceedings are required to be initiated by petitions in the format
detailed in Rule 5 thereof. So far as contents of the petition are
concerned, Rule 7 stipulates the particulars required to be given.
108. We extract hereunder the relevant portion of these rules :
“7. Contents of petition – In addition to the
particulars required to be given under Order VII, Rule 1
of the Code and Section 20(1)of the Act, all petitions
under Secs. 9 to 13 shall state-
(a) the place and date of marriage.
(b) whether the petitioner and the respondent
were Hindu by religion at the time of the marriage
and whether they continue to be so up to the date
of filing of the petition;
(c) the name, status and domicile of the wife
and the husband before the marriage and at the
time of filing the petition;
(d) the address where the parties of the
marriage reside at the time of the presentation of
the petition and last resided, together;
(e) the names of children, if any, of the
marriage, their sex and their dates of birth or
ages;
(f) if prior to the date of the petition there has
been any proceeding under the Act between the
parties to the petition, full particulars thereof.
(g) the matrimonial office or offences alleged
or other ground, upon which the relief is sought,
setting out with sufficient particularity the time
and places of the acts alleged and other facts
relied upon, but not the evidence by which they
are intended to be proved, e.g.-
xxx
(iv) in the case of alleged desertion, the date
and the circumstances in which it began, in the
case of cruelty the specific acts of cruelty and the
occasion when and the place where such acts
were committed.”
(Emphasis supplied)
109. It is an admitted position that the divorce petitions which
were filed, were in compliance with the Rules. In both these
petitions, the husband had clearly stated that a child born on the 6th
October, 2013. Clearly, as per Rule 7(e), the parties had given
details of the child “of the marriage”. This is a material admission
by the husband, not once but twice, on affidavit on judicial record
as well as on oath in his oral statement dated 1st of October, 2014 in
HMA No.1099/2014.
110. When queried about the impact of this admission, Mr. V.K.
Gupta, learned senior counsel for the respondent no.1 has asserted
that it was not open for this court to go into this question and that
the same was irrelevant for the purposes of adjudicating on the
prayer for a DNA examination of the child.
Regrettably we are unable to agree with this submission.
111. The principles of law governing adjudication on an
application for DNA examination of a child are well settled. The
respondent no.1 – husband was bound to have made out a prima
facie case for grant of such a relief. Admissions of fact by a
husband are an important part of prima facie consideration of the
case. In the face of the above admissions, which negate his
challenge to paternity, the respondent was bound to have rendered
an explanation for the admissions. No such explanation has been
tendered before the Family Court. There is not a whit of an
explanation in the entire divorce petition, or in the application
seeking the DNA examination. The same has been refused to be
given before us.
112. These admissions on judicial record, clearly operate against
a finding of a prima facie case in favour of the husband.
X. Conduct of the husband despite his allegations against his
wife – impact thereof
113. In a case like the present once, conduct of the parties would
throw valuable light upon the prima facie consideration. We have
discussed above that the husband is himself not sure of the case
which he wants to make out. He himself has doubts about his plea
of illegitimacy. This is amply borne out from his pleadings about
his conduct and emotions after learning about the pregnancy of the
appellant.
114. The parties are at variance with regard to the date on which
the respondent no.1-husband learnt about the pregnancy. While the
respondent no.1 would want the court to believe that he learnt of
the same only in April, 2013, the appellant-wife has submitted that
he learnt of the same in February, 2013 after her medical
examination confirmed the same.
115. In para 13 of the divorce petition, the respondent no.1 has
stated that this news “brought a mix bag of emotions” as “on one
hand he was happy to hear the news of a child coming in his life
which any normal male would have cherished but on the other
hand raised a strong level of suspicion in his intriguing mind about
the paternity of the child”. In para 14, the respondent no.1-
husband refers to “such a whirlpool blowing in the mind of the
petitioner(husband) about the paternity of the child which has
raised a very strong doubt”. Later in para 14, the husband has
referred to the fury of the wife when he doubted her character.
116. In para 15, reference is made to “doubt” or “suspicion” or
“more strong level of suspicion”. In para 17, the husband refers to
removal of his “doubts”. If there had been no access or
cohabitation, the husband would not have nursed merely a “doubt”
but would have had a firm belief that the child was not his. There
would be no question of “a mix bag of emotions” nor any occasion
to be “happy to hear the news of a child coming in his life”. If he
had no access to his wife and had no relations with her, there would
also be no “whirlpool” in the husband’s mind about the paternity of
the child but the husband would be absolutely sure that the child
was not his.
117. Even in his examination-in-chief on affidavit dated 29th July,
2015, the respondent no.1 husband has reiterated the above
pleadings.
118. These statements are to be tested against his admitted silence
with regard to his even nursing a suspicion through the entire
period of the pregnancy of nine months (and thereafter) when the
parties not even continued living as they were in the past, but also
celebrated the pregnancy of the appellant with all normal
ceremonies in the family of the respondent no.1-husband.
119. It is stated in her written statement (and admitted by the
husband in his evidence) that in March, 2013, the religious
ceremony relating to the pregnancy of the appellant was performed
at Bareilly in which parents of both the parties had participated.
His parents had come from Bihar for this purpose while her parents
had joined them as well!
120. One more material event inexplicably concealed by the
husband is also brought on record of the case by the wife. It is on
record that the birth of the child was celebrated by the parties and
their families and a proper namkaran ceremony was hosted. The
respondent no.1 husband has claimed in his evidence that he came
to know the name of the child “Baby X” in the namkaran sanskar
ceremony which was held in the October end or beginning of
November, 2015 and that his parents, relatives and he himself had
participated in the ceremony. The respondent no.1 had denied the
suggestion that he had invited 150 guests to attend the ceremony.
121. In his cross-examination, respondent no.1 was confronted
with seven photographs from the namkaran ceremony which have
been exhibited on record as PW-1/R-3 to PW-1/R-9. It includes
five photographs which feature just the respondent no.1-husband
and his wife (the appellant) with the child. In Ex.PW1/R-3 and
Ex.PW-1/R-5, featuring the appellant, respondent no.1 and the
child, the respondent no.1 husband appears extremely happy and is
holding the child in his arms in an intimate gesture as part of a
loving family. Ex.PW-1/R-4 appears to be a family photograph
which includes the couple with their child in the arms of the
husband and immediate family members of the parties.
122. Ex.PW-1/R-6 and Ex.PW-1/R-7 feature the appellant with
two of his friends (including the alleged adulterer). The
photographs display his comfort and, in fact, his bearing reflects
happiness on the occasion. He has displayed complete comfort
with the appellant as well as the child and friendship with even the
alleged adulterer. MAT.APP.(FC)No.17/2016 Page 66 of 95
123. The photograph Ex.PW-1/R-9 shows the respondent no.1
with his mother and their Pandit performing the pooja (prayer)
relating to the namkaran ceremony. In his cross-examination, the
respondent no.1 has prevaricated suggesting that “one person
probably” looks like him!
None of these photographs displays any tension or anger or
revulsion as would be the normal reaction of any man, if, the
situation was as has been portrayed.
124. Let us note two more instances of the reaction of the
respondent no.1 to the arrival of the child and thereafter. In the
hearing before us, on the 23rd of May 2016, a further affidavit was
sought to be filed by the appellant along with enclosures. The
same was taken on the record of the present case with the consent
of the respondent no.1 husband.
125. On 5th of July 2016, we were informed by Mr. V.K. Gupta,
learned Senior Counsel for the respondent no.1 – husband, that
though there was no objection to the affidavit being taken on
record, the respondent no.1 was not filing any reply thereto for the
reason that “the facts stated in the affidavit are irrelevant for the
purposes of the present appeal” as well as “for the purposes of
deciding the main divorce petition for the reason that it was
premised on the allegations of adultery on the part of the
appellant”. So the appellant’s affidavit and its annexures remain
undisputed before us.
126. For the purposes of the present appeal, we are only
concerned with the question as to whether the respondent no.1 had
established a strong prima facie case in consonance with the
requirements laid down by the Supreme Court for directing a DNA
examination of the child born on 6th October, 2013. The affidavit
and enclosures stand taken on record with the consent of the
husband. We are within our jurisdiction to scrutinise the additional
affidavit and enclosed documents from this perspective alone.
127. The first document so brought on record is the birth
certificate dated 22nd November, 2013 of the child issued by the
Lucknow Municipal Corporation which contains the name of the
parents of the child. We find that the birth certificate reflects the
father’s name as “H” i.e. the respondent no.1 – husband and the
appellant as the mother of the girl child born on 6th October, 2013.
128. The other document placed before us is the passbook issued
on 2nd November, 2013 of an Account bearing No.33423970043
which was opened in the State Bank of India, Civil Lines, Near
Kacheri, Bareilly. This passbook is of a saving bank account of the
child which was opened by the respondent no.1 - husband while he
was posted as District Magistrate, Bareilly. In the account, against
the column for name of the child, as it was a minor account, after
her name, it is mentioned “UNG ‘H’ IAS”. We are informed that
this means that the child was “under natural guardian ‘H’ IAS”.
Legally the father of the child is recognised as the natural guardian.
129. As per the wife’s affidavit, during the namkaran ceremony
of the child, cash gifts had been received, which totalled
`1,61,000/-. The respondent no.1 - husband had deposited this
amount in this saving bank account on the 2nd of November 2013. MAT.APP.(FC)No.17/2016 Page 68 of 95
Photographs of the parents were also furnished to the bank by the
respondent no.1 which includes his own photograph as the child’s
father.
130. Further subsequently, on the 20th of November 2013, the
respondent no.1 had got the name of the appellant – wife also
added as a joint guardian of the child to continuously make deposit
for the benefit of the child.
131. Prima facie, there is substance in the appellant’s contention
that each of these documents again contain admissions by the
appellant of his having fathered the child born on 6th October,
2013.
132. Considering the vehemence with which the respondent
husband is now agitating the plea of adultery, it is inconceivable
that the husband, an experienced bureaucrat of considerable
experience, having control over a huge administrative
establishment and paraphernalia, would not only tolerate the
deviations of an errant wife, support her through a pregnancy
(allegedly extra marital) and also celebrate the same by performing
customary puja upon a wife’s conception as well as the birth of the
child by a huge celebration. Or to permit his name to feature as
such child’s birth certificate or to create and operate a bank account
for her!
These are behaviour which militates against a “prima facie”
case in his favour on the plea that he was not the father of the child.
133. It is important to note that the respondent husband has not
even remotely suggested any unnatural conduct on the part of his
wife during their marriage. He has made no allegation that she had
spurned him or found him abhorrent. On the contrary, normal
civility and relations are reflected and the parties appear to have
been meeting normally as husband and wife as well as
professionally in their official residences and official commitments.
134. In the discussion by the Supreme Court in para 10 of the
judgment reported at AIR 2001 SC 2226:(2001) 5 SCC 311, Kamti
Devi (Smt.) & Anr. v. Poshi Ram, what is material is whether there
was a denial to the wife of access to the husband. No such material
is on record.
Concealment and statement of wrong facts – whether impacts
consideration of prima facie case?
135. Mr. Sandeep Sethi, learned Senior Counsel for the appellant
wife has drawn our attention to para 16 of the divorce petition.
Here, in an effort to support a plea of non-access, the respondent
no.1-husband has pleaded that “the denial of access” and “cruel
conduct” of the wife towards him “continued during the entire
period of pregnancy also…”.
136. In the written statement, the appellant-wife has stated that in
May, 2013, the respondent no.1-husband invited her to visit
Udaipur where he had made all arrangements for stay etc. in
Udaipur Vilas Palace Hotel which is a well-known wedding and
honeymoon destination and that, for the first time, all expenses
were borne by him. The appellant wife has also asserted that he
had arranged this Udaipur outing with the intention to persuade her MAT.APP.(FC)No.17/2016 Page 70 of 95
for a sex determination of the child to which she could not
reconcile nor accept. The appellant-wife has further pleaded that
for the first time he spent money lavishly on this outing, that the
parties came from Bareilly by road to Delhi and from Delhi, caught
a flight to Udaipur.
137. The fact that the parties went to Udaipur for holiday from 9th
May, 2013 to 13th May, 2013 has not even been mentioned in the
divorce petition by the husband. However, in his cross
examination on 24th September, 2015, this fact has been admitted
by him. When questioned that the stay of Udaipur must have cost
him `40,000/- to `50,000/- per day and that he had paid over `2 to
2.5 lakhs for the entire trip, the husband replied that he does not
know the tariff, nor does he recollect who had borne the expenses.
The appellant would suggest prevarication on his part, but this
aspect does not need to detain us here for a prima facie
consideration, except to the extent that the husband has concealed
this trip. The trip is conduct incompatible with that of a husband
whose wife is pregnant with an outsider’s child. It is urged that on
the contrary, the trip supports the appellant’s case of a normal
relationship between the parties.
During the Udaipur visit, the appellant wife was already
around three months into her pregnancy. Any reasonable person
who knew that the child was not his or that his wife was carrying
on an adulterous relationship would never vacation with her.
The plea of the husband that he had no access to the wife
during the duration of the pregnancy is therefore, clearly false.MAT.APP.(FC)No.17/2016 Page 71 of 95
138. The appellant-wife has further asserted that the parties
continued to visit each other and that even thereafter, they both had
access to each other on all material time. It is the wife’s assertion
that on 15
th August, 2013, he specifically came to stay with her at
her place of posting so that she would not be alone on her birthday
which happened to fall on 16th August, 2013.
139. Mr. Sandeep Sethi, learned Senior Counsel points out that
the entire case of the respondent no.1 of appellant wife having an
adulterous relationship with the respondent no.2, hinges on his
solitary allegation that one of his friend namely, Shri Vikas Verma
had seen the respondents in “intimate gesture” in the company of
each other on at least four to five occasions in public places. It is
stated that “Shri Vikas Verma has himself seen respondent nos.1
and 2 at Hotel Manor, Faizabad, P.S. Chinhath, District Lucknow
and their gestures fully corroborates..........the fact that respondent
nos.1 and 2 behind back of the petitioner were having an
extramarital relationship.....”.
140. Mr. Sethi has drawn our attention to the record and pointed
out that Shri Vikas Verma was examined as a witness on 16th of
October 2015 when he tendered his evidence by way of affidavit
which was exhibited as Ex.PW2/A. This witness gave an address of
Lucknow as his address. However, in his cross-examination, this
witness revealed that his residential address was “241/A, Raiganj,
South Sarafa Katra, P.S. Rajgath, Gorakhpur” and that he even has
a jewellery shop situated in Hindi Bazar, Gorakhpur. He also
disclosed that he had mentioned his father-in-law Shri Rajinder
Verma’s address of Lucknow in his affidavit of evidence. It is
urged that this witness has clearly given a wrong address to falsely
justify his presence at Lucknow to support the husband.
141. In his cross-examination further, Shri Vikas Verma has
completely disclaimed that he had seen the appellant and the
respondent no.2 going inside Hotel Mannar! So far as the alleged
intimacy is concerned, in his cross-examination on 16th October,
2015. Shri Verma baldly claimed that he had seen these two
persons “going inside Hotel Charan”.
This witness thus not only completely disclaimed the
contents of his own vague affidavit but also gave no specific date.
It lends support by the criticism that the respondent no.1 is
therefore, relying on bald and vague innuendo and suggestion in
support of his plea of adultery, without any material in support.
The evidence of Shri Vikas Verma was on the record of the Family
Court on 28th January, 2016 for examining whether there was a
prima facie case in favour of the husband when the application was
considered and the impugned order passed.
XI. DNA report dated 23rd April, 2015 – whether supports a
prima facie case in favour of the respondent no.1 –
husband?
142. The application dated 16th October, 2015 on which the
impugned order was passed, in para 3 claims that the divorce
petition was filed on the act of adultery, “confirmed by the DNA
report of umbilical cord (dried) belonging to the child delivered by
the respondent no.1” and his blood samples, sent to DNA Lab
India Genetics Research and Development Centre for DNA test. In
para 4, the respondent no.1 referred to a DNA test purported to be
conducted by the Central Forensic Science Laboratory, Directorate
of Forensic Science Services, Ministry of Home Affairs,
Hyderabad, Andhra Pradesh under orders of the Additional Chief
Judicial Magistrate, Lucknow in a criminal complaint filed by the
respondent no.1 under Section 497 of the IPC. The certified copy
of this report was filed by the appellant on the court record.
143. Before the Family Court, the respondent husband has relied
on a DNA test report dated 23rd April, 2015. The respondent no.1
claims that this is a report of testing of a sample from the husband
with a sample claimed by the husband to be that of the umbilical
cord of the child.
144. The respondent husband has claimed that he first got a
private DNA test conducted wherein a report dated 21st November,
2013 was obtained, but the respondent husband has not placed
reliance on the report, either before the Family Court or in the
present appeal.
145. Before we deal with the report, it is necessary to understand
the requirements of law for its acceptance. In order to lend
veracity to a DNA report, even prima facie, first and foremost, the
person relying on the same has to prove the sources of the samples;
their confirmed identity, authenticity as well as purity thereof.
Additionally, the person relying on a scientific report has to make
out the chain of custody of these samples and to support that it was
only such confirmed samples which were actually tested and that
the scientific report relates to only the claimed samples, without
there being any possibility of mistake or tampering or soiling
thereof. Thus the first and foremost fact which had to be indicated
was that the report dated 23rd April, 2015 actually related to
samples extracted/obtained from the minor child; that it was such
sample which had actually been sent to the test laboratory; that the
laboratory had conducted the test on that very sample vis-a-vis pure
sample from the respondent husband and that the report was
actually a result of DNA test conducted on the human samples
obtained from the minor child and the respondent husband.
We hasten to repeat here that we are at this stage again
assessing the material which was before the learned Trial Judge at
the time of passing of the impugned order from a prima facie
aspect alone.
146. The respondent no.1’s evidence stood completed on 29th
September, 2015 and was before the Family Court when the
application was considered. In his cross-examination, the appellant
wife has challenged every facet of the husband’s claim with regard
to the DNA testing. From the very acquisition of the sample to the
result have been subjected to a cross-examination.
147. The respondent no.1 husband nowhere gives any particular
date on which the alleged sample i.e. the umbilical cord became
available to him, except to say that it was collected in the hospital.
He is unable to give definite size of the umbilical cord. So far as
its preservation was concerned, the respondent no.1 has claimed
that he “collected it through a piece of paper, wrapped the same in
the paper and put it in my pocket at that time. Thereafter, I put the
same in an air tight glass jar which I purchased later on, after
leaving the hospital”. The respondent no.1 claimed that “umbilical
cord was kept in the same glass jar duly wrapped in a paper for
more than 1½ years (one and a half years)”. He states that he did
not inform his parents or in-laws about having taken the cord for
testing.
148. Medical texts advise that the umbilical cord falls off after 7
to 10 days of birth, sometimes after 5 days. The respondent no.1
does not explain that the mother and child remained admitted in
hospital for such period.
149. Before us, additional material is pointed out from the trial
court record which was called for. In order to prove the DNA test
report, the respondent no.1 examined on 4th March, 2016 as his
witness, Shri S. Sathyan, Senior Scientific Officer, Central
Forensic Science Laboratory, Hyderabad as PW-4. This witness
refers to a letter dated 25th February, 2015 received by the CFSL
from the CMO, Lucknow (Ex.PW-4/1). While requesting the
Director of the CFSL to get the DNA test done as per the court
order, the CMO, Lucknow has referred to “the blood sample of
“H” and the so called umbilical cord of Baby .......”. The Director
does not confirm the source of the sample.
150. In his evidence also, PW-4 Shri Sathyan refers to the so
called umbilical cord. In his cross-examination, the witness clearly
stated that he was not sure as to whether the tested sample was that
of umbilical cord or not. Prima facie, there is thus, nothing at all to
connect the sample subjected to the testing, to the child concerned.
151. Mr. Sethi would urge that even if the husband had actually
collected the cord of the child, he has wrapped it in paper and
stored it in an ordinary bottle acquired by him, not a sanitised
sample bottle. The submission is that for an effective testing
sample had to be scientifically collected and preserved. It was so
kept for a long period of one and half years, clearly exposed to
continuous contamination. Ld. Senior Counsel would submit that
no reliance can be placed on the DNA report premised on such
sample for this reason as well. Unfortunately, the question as to
whether the alleged sample could have got contaminated, if
maintained or preserved in the manner as has been claimed by the
respondent no.1 husband, was disallowed. It is urged that even if
the sample was actually the child’s, there is doubt about its purity
or effect of impurities on the testing.
152. Before us it is urged by Mr. Sandeep Sethi, learned Senior
Counsel for the appellant wife, that the DNA report does not
indicate that it relates to a sample of Baby ‘X’. Therefore,
assuming without admitting that the report could be accepted as
having been proved, it is certainly no proof of the fact that the
laboratory had conducted a test on a sample which actually
belonged to the child. At best, the DNA report relied upon by the
respondent husband had only suggested that a DNA test had been
conducted on a sample of some tissue which did not match the
respondent no.1 husband. Simply put, the respondent – husband is
unable to connect the DNA report to the child in question.
153. In the face of the above, the DNA test report, prima facie
does not support the husband’s claim that the report establishes that
it actually relates to a sample of the child.
XII. In the facts of the present case, effect of the presumption
under Section 112 of the Indian Evidence Act
154. The appellant before us has vehemently urged that in the
instant case, the presumption of legitimacy of the child is
irrebuttable and conclusive of the fact. This is for the reason that
the respondent has failed to make out a case of non-access during
the relevant period when the child could have been conceived.
There is no dispute that the child was borne to the parties who were
married to each other and had access to each other during the
period of possible conception.
155. This principle stands reiterated by the Supreme Court in its
judgment reported at AIR 2010 SC 2851, Bhabani Prasad Jena v.
Convenor Secretary, Orissa State Commission for Women & Anr.
In the following para 19 of the judgment, the Supreme Court
extracted para 13 of (2005) 4 SCC 449, Banarasi Das v. Mrs.
Teeku Datta & Anr., and again cautioned that the DNA test was
not to be directed as a matter of routine and that only in deserving
cases, such a direction should be given :
“19. In Banarsi Dass v. Teeku Dutta [(2005) 4 SCC 449]
this Court was concerned with a case arising out of a
succession certificate. The allegation was that Teeku Dutta
was not the daughter of the deceased. An application was MAT.APP.(FC)No.17/2016 Page 78 of 95
made to subject Teeku Dutta to DNA test. The High Court
held that the trial court being a testamentary court, the
parties should be left to prove their respective cases on the
basis of the evidence produced during trial, rather than
creating evidence by directing DNA test. When the matter
reached this Court, few decisions of this Court,
particularly, Goutam Kundu [(1993) 3 SCC 418 : 1993
SCC (Cri) 928] were noticed and it was held that even the
result of a genuine DNA test may not be enough to escape
from the conclusiveness of Section 112 of the Evidence
Act like a case where a husband and wife were living
together during the time of conception. This is what this
Court said: (Banarsi Dass case [(2005) 4 SCC 449] , SCC
pp. 454-55, para 13)
xxx xxx xxx
It was emphasised that DNA test is not to be directed as a
matter of routine and only in deserving cases such a
direction can be given.”
(Emphasis by us)
156. Ld. Senior Counsel for the appellant has also placed the
pronouncement of the Supreme Court reported at AIR 2015 SC 418
Dipanwita Roy v. Ronobroto Roy. In this case, categorical
assertions that the parties never lived together, that is of “no
access” were made. The wife was clearly stated to be living in an
adulterous relationship at another address with another person. In
para 2 of the judgment, the pleadings of the party were extracted
which reads thus :
“2. One of the grounds for seeking divorce was based
on the alleged adulterous lifestyle of the petitioner wife.
For his above assertion, the respondent husband made the
following allegations in Paras 23 to 25 of his petition:
“23. That since 22-9-2007 the petitioner never lived
with the respondent and did not share bed at all. On a
very few occasions since then the respondent came to
the petitioner's place of residence to collect her things
and lived there against the will of all to avoid public
scandal. The petitioner did not turn (sicaway) the
respondent from house on those occasions.
24. That by her extravagant lifestyle the respondent
has incurred heavy debts. Since she has not disclosed
her present address to bank and has only given the
address of the petitioner, the men and collection agents
of different banks are frequently visiting the petitioner's
house and harassing the petitioner. They are looking for
the respondent for recovery of their dues. Notice from
attorney firms for recovery of dues from the respondent
and her credit card statements showing heavy debts are
being sent to the petitioner's address. The respondent
purchased one car in 2007 with the petitioner's uncle,
Shri Subrata Roy Chowdhary, as the guarantor. The
respondent has failed to pay the instalments regularly.
25. That the petitioner states that the respondent has
gone astray. She is leading a fast life and has lived in
extra-marital relationship with the said Mr Deven Shah,
a well-to-do person who too is a career oriented
gentleman and has given birth to a child as a result of
her cohabitation with Shri Deven Shah. It is reported
that the respondent has given birth to a baby very
recently. The respondent is presently living at the
address as mentioned in the cause-title of the
plaint.”(emphasis supplied)”
(Emphasis by us)
There can be no dispute with the above proposition.
157. It appears from the narration of facts that the petitioner had
never lived with or shared a bed with her at all (or in any case since
22-9-07). The husband had made “clear and categorical
assertions”. In paras 10, 11 and 12, the Supreme Court held as
follows :
“10.It is borne from the decisions rendered by this Court
in Bhabani Prasad Jena[Bhabani Prasad Jena v. Orissa
State Commission for Women, (2010) 8 SCC 633 : (2010)
3 SCC (Civ) 501 : (2010) 3 SCC (Cri) 1053] and Nandlal
Wasudeo Badwaik[Nandlal Wasudeo Badwaik v. Lata
Nandlal Badwaik, (2014) 2 SCC 576 : (2014) 2 SCC (Civ)
145 : (2014) 4 SCC (Cri) 65] that depending on the facts
and circumstances of the case, it would be permissible for
a court to direct the holding of a DNA examination to
determine the veracity of the allegation(s) which constitute
one of the grounds, on which the party concerned would
either succeed or lose. There can be no dispute, that if the
direction to hold such a test can be avoided, it should be
so avoided. The reason, as already recorded in various
judgments by this Court, is that the legitimacy of a child
should not be put to peril.
11. The question that has to be answered in this case is in
respect of the alleged infidelity of the appellant wife. The
respondent husband has made clear and categorical
assertions in the petition filed by him under Section 13 of
the Hindu Marriage Act, alleging infidelity. He has gone to
the extent of naming the person who was the father of the
male child born to the appellant wife. It is in the process of
substantiating his allegation of infidelity that the
respondent husband had made an application before the
Family Court for conducting a DNA test which would
establish whether or not he had fathered the male child born
to the appellant wife. The respondent feels that it is only
possible for him to substantiate the allegations levelled by
him (of the appellant wife's infidelity) through a DNA test.
We agree with him. In our view, but for the DNA test, it
would be impossible for the respondent husband to
establish and confirm the assertions made in the pleadings.
We are therefore satisfied that the direction issued by the
High Court, as has been extracted hereinabove, was fully
justified. DNA testing is 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 respondent husband, and to establish
that she had not been unfaithful, adulterous or disloyal. If
the appellant wife is right, she shall be proved to be so.
12. We would, however, while upholding the order passed
by the High Court, consider it just and appropriate to
record a caveat, giving the appellant wife liberty to comply
with or disregard the order passed by the High Court,
requiring the holding of the DNA test. In case, she accepts
the direction issued by the High Court, the DNA test will
determine conclusively the veracity of accusation levelled
by the respondent husband against her. In case, she declines
to comply with the direction issued by the High Court, the
allegation would be determined by the court concerned by
drawing a presumption of the nature contemplated in
Section 114 of the Evidence Act, especially, in terms of
Illustration (h) thereof. Section 114 as also Illustration (h),
referred to above, are being extracted hereunder:
“114.Court may presume existence of certain facts.—
The court may presume the existence of any fact
which it thinks likely to have happened, regard being
had to the common course of natural events, human
conduct and public and private business, in their
relation to the facts of the particular case.”
“Illustration (h)—that if a man refuses to answer a question
which he is not compelled to answer by law, the answer, if
given, would be unfavourable to him;”
This course has been adopted to preserve the right of
individual privacy to the extent possible. Of course, without
sacrificing the cause of justice. By adopting the above
course, the issue of infidelity alone would be determined,
without expressly disturbing the presumption contemplated
under Section 112 of the Evidence Act. Even though, as
already stated above, undoubtedly the issue of legitimacy
would also be incidentally involved.”
(Emphasis supplied)
158. We may note the submissions of Mr. V.K. Gupta, ld. Senior
Counsel for the respondent insisting that the Supreme Court has
authoritatively laid down that the DNA test is the only manner of
establishing a plea of infidelity by one spouse against the other. It
is urged that, therefore, in a case where a spouse alleges infidelity
on the part of his wife, medical examination has to be ordered. We
are unable to agree with this submission. In paras 11 and 12, the
Supreme Court is concerned with the facts of that particular case.
The Supreme Court has in fact in para 10 reiterated the same
caution as was mandated in prior judicial precedents.
159. The absolute submission and proposition pressed by Mr.
Gupta may be tested from another angle. What if there were no
child from the alleged infidelity or the extra marital affair of the
wife? What about a case where the wife alleges infidelity against
the husband, with or without there being a child from such
relationship? The husband (or the wife) has to stand on his own
feet and establish the allegedly infidelity as per law.
Accepting the proposition urged by Mr. Gupta would in
effect, tantamount to laying down the principle that a spouse had to
merely make an allegation of infidelity (or mental illness or
impotency), without anything more, and courts would have to
mandatorily direct scientific (or medical) examination.
160. It is a first principle of procedural law that a party alleging a
fact, must prove it. Binding judicial precedents noted above have
laid down that a party must establish a strong prima facie case
before a court would make an order for the scientific (or medical)
examination, especially of the intrusive kind as a DNA
examination. The court cannot conduct a fishing or roving inquiry
for a party and a DNA test cannot be ordered to gather evidence on
behalf of a party who has made a bald allegation, without anything
more.
161. For this reason, even in Diwanwita Roy, while approving the
order for the DNA test in the facts of the case, the court has clearly
declared that the presumption under Section 112 of the Evidence
Act would not be lightly disturbed. In para 10, the court has noted
that the order depends “on the facts and circumstances of the case”.
In para 11, the Supreme Court has noted “the question to be
answered in this case”.
162. Mr. V.K. Gupta, learned Senior Counsel for the respondent
has placed the observations in the judgment of the Supreme Court
reported at (2014) 2 SCC 576 Nandlal Wasudeo Badwaik v. Lata
Nandlal Badwaik & Anr. Reliance has been placed on the
following by ld. Senior Counsel :
“13. Before we proceed to consider the rival
submissions, we deem it necessary to understand what
exactly DNA test is and ultimately its accuracy. All
living beings are composed of cells which are the
smallest and basic unit of life. An average human body
has trillions of cells of different sizes. DNA
(Deoxyribonucleic Acid), which is found in the
chromosomes of the cells of living beings, is the
blueprint of an individual. Human cells contain 46
chromosomes and those 46 chromosomes contain a total
of six billion base pairs in 46 duplex threads of DNA.
DNA consists of four nitrogenous bases — adenine,
thymine, cytosine, guanine and phosphoric acid
arranged in a regular structure. When two unrelated
people possessing the same DNA pattern have been
compared, the chances of complete similarity are 1 in 30
billion to 300 billion. Given that the Earth's population
is about 5 billion, this test shall have accurate result. It
has been recognised by this Court in Kamti Devi[Kamti
Devi v. Poshi Ram, (2001) 5 SCC 311 : 2001 SCC (Cri)
892] that the result of a genuine DNA test is
scientifically accurate. It is nobody's case that the result
of the DNA test is not genuine and, therefore, we have
to proceed on an assumption that the result of the DNA
test is accurate. The DNA test reports show that the
appellant is not the biological father of the girl child.
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 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.”
163. It is noteworthy that the Supreme Court has further reiterated
the conclusiveness of the presumption under Section 112 of the
Indian Evidence Act in para 14 of the pronouncement in the
following terms :
“14. Now we have to consider as to whether the DNA test
would be sufficient to hold that the appellant is not the
biological father of Respondent 2, in the face of what has
been provided under Section 112 of the Evidence Act,
which reads as follows:
xxx xxx xxx
From a plain reading of the aforesaid, it is evident that a
child born during the continuance of a valid marriage
shall be a conclusive proof that the child is a legitimate
child of the man to whom the lady giving birth is married.
The provision makes the legitimacy of the child to be a
conclusive proof, if the conditions aforesaid are satisfied.
It can be denied only if it is shown that the parties to the
marriage had no access to each other at any time when
the child could have been begotten.”
(Emphasis supplied)
164. In Nandlal Wasudeo Badwaik, the husband had led
evidence that after his wife left the matrimonial home, she did not
return and that he had no access to her when the child could have
been begotten. The courts below had not given any finding with
regard to this plea. It is also noteworthy that in this case, the DNA
testing was done under orders of the court which had not been
opposed by the wife. The DNA test report suggested that the
appellant was not the biological father. In these circumstances, the
court held in para 17 that where there was evidence to the contrary,
the presumption under Section 112 of the Indian Evidence Act,
being rebuttable, would yield to conclusive proof. In para 19, the
court noted that the husband’s plea, that he had no access to the
wife when the child was begotten, stood proved by the DNA test
report.
165. Principles laid down in prior judgments including AIR 1934
PC 49, Karapaya Servai v. Mayandi; AIR 1954 SC 176, Chilukuri
Venkateswarlu v. Chilukuri Venkatanarayan; AIR 1993 SC 2295,
Goutam Kundu v. State of West Bengal & Anr.; AIR 2001 SC
2226, Kamti Devi v. Poshi Ram; AIR 2003 SC 3450, Sharda v.
Dharmpal and AIR 2010 SC 2851, Bhabani Prasad Jena v.
Convenor Secretary, Orissa State Commission for Women & Anr.
have not been overturned and bind the present consideration. No
absolute proposition as is contended by Mr. Gupta has been laid
down in the judicial precedents.
166. Mr. V.K. Gupta, learned Senior Counsel for the appellant
has placed reliance on the Single Bench pronouncement in this
court reported at (2011) 121 DRJ 563, Rohit Shekhar v. Narayan
Dutt Tiwari in support of his submissions. The consideration in
this case has to be read in the light of the facts situation in which
the judgment was rendered. Mr. Rohit Shekhar claimed to be the
biological son of the defendant no.1 and born out of the
relationship of defendant no.1 with the defendant no.2. It is an
admitted position that the defendant no.2 was married to a third
person which marriage was subsisting at the time of birth of the
plaintiff. The husband of the defendant no.2 had claimed no access
to the defendant no.2 at the time on which the plaintiff would have
been conceived. The defendant no.2 - mother was supporting the
plea of the plaintiff that he was the biological son of the defendant
no.1.
167. The application seeking the DNA examination was filed not
by the father - defendant no.1, but by the plaintiff and sought
directions to the defendant no.1 to furnish blood samples for a
DNA comparison with his own samples to establish that the
defendant no.1 was his father. The court had considered the
plaintiff’s right to know his roots and noted that the application had
been filed by an adult person who had moved the court for a
declaration to determine his or her paternity. The court had
recognized the well settled position of the jurisdiction to order a
DNA examination and ordered accordingly.
This case has no parity with the case in hand.
168. We have discussed above the pleadings of the husband in the
present case and concluded their insufficiency from the factual
matrix brought out before us, the judgments relied upon by the
appellant would not apply to the present case.
XIII. Ensuring the Constitutional rights of the child
169. Our consideration cannot end here. The inevitable victim of
an order in a paternity challenge in matrimonial litigation is the
child who is not before the court. We have noted above that for a
wide variety reasons (paras 95 to 97) parties may attempt to obtain
collusive orders on this issue. Any consideration and adjudication
on this aspect directly impacts the right to life of the child
guaranteed under Article 21 of the Constitution of India. It is a
first principle of legal procedure and natural justice, that a person
affected has a right to be heard.
170. So far as children are concerned, it is trite that the courts are
parens patriae and it is the responsibility of the court to ensure the
welfare and best interest of the child in every proceeding where the
rights and interest of the child are impacted. Such interest of the
child has to be ensured independent of the rights and claims of the
parties to the lis.
171. As parens patriae, the court is bound to ensure the rights of
the child which has to include independent and fair representation
as well as hearing to the child, before passing such order.
172. Para 81 of the three judge bench pronouncement of the
Supreme Court reported at AIR 2003 SC 3450 Sharda v.
Dharmpal sheds some light on the consideration by the court in a
case involving any issue of the paternity of the child which reads
thus:
“81. If for arriving at the satisfaction of the court and
to protect the right of a party to the lis who may
otherwise be found to be incapable of protecting his
own interest, the court passes an appropriate order, the
question of such action being violative of Article 21 of
the Constitution of India would not arise. The court
having regard to Article 21 of the Constitution of India
must also see to it that the right of a person to defend
himself must be adequately protected.”
(Emphasis by us)
173. How can, say, as in a case as the present, the court protect
the rights of the child in question? This can only be done by
ensuring independent representation to the child at all stages of the
case where the aspect of paternity is being considered or is
involved.
174. Valuable insight is shed on the standards and parameters
within which the courts are bound to ensure the rights of the child
in the “Guidelines of the Committee of Ministers of the Council
of Europe on child – friendly justice”. The Guidelines were
adopted by the Committee of Ministers of the Council of Europe
on the 17th of November 2010. These Guidelines, though not
binding on the courts in India, but lend valuable guidance to the
manner in which the rights of the child, if and when in conflict with
parents, or otherwise in judicial precedents can be adequately
protected. Reference may usefully be made to Chapter IV
captioned “Child-friendly justice before, during and after judicial
proceedings”. Sub-Chapter A of this Chapter deals with “Childfriendly
justice during judicial proceedings”. We are concerned
with Section 2 thereof which reads “Legal counsel and
representation”. The relevant extract thereof reads thus:MAT.APP.(FC)No.17/2016 Page 90 of 95
“Guidelines of the Committee of Ministers of the Council
of Europe on child – friendly justice
xxx xxx xxx
IV. Child-friendly justice before, during and after
judicial proceedings
A. General elements of child-friendly justice.
xxx xxx xxx
2. Legal counsel and representation
“42. In cases where there are conflicting interests between
parents and children, the competent authority should
appoint either a guardian ad litem or another independent
representative to represent the views and interests of the
child.
43. Adequate representation and the right to be represented
independently from the parents should be guaranteed,
especially in proceedings where the parents, members of the
family or caregivers are the alleged offenders.
xxx xxx xxx”
(Emphasis by us)
We are of the view that these are the rights which must be
ensured to every child in all judicial proceedings independently
from the parents especially in cases involving parentage and
identity issues.
175. Keeping in view the facts and circumstances of such case,
the court would be bound to appropriately appoint a guardian ad
litem or an amicus curiae to ensure the interest of the child which
has to include effective representation to him/her, depending on the
facts and circumstances of the case.
XIV. Impugned order
176. It was imperative for the trial judge who was seized of the
application for a DNA examination of the minor child in the
present case on the 28th of January 2016 to consider the same, on
the binding parameters set out hereinabove. On that date the court
had almost the entire case of the respondent no.1 husband before it
inasmuch as the substantive evidence of the respondent no.1 and
his main witness also stood recorded. Mr. Sandeep Sethi, learned
Senior Counsel for the appellant has carefully taken us through the
impugned order dated 28th of January 2016 passed by the learned
Trial Judge whereby the appellant’s application was allowed and
the directions were issued to the appellant to produce Baby ‘X’ to
the office of the Director, CFSL, CGO Complex, Lodhi Road, New
Delhi at 10:30 am on 10th February, 2016 when the respondent
no.1would also be present so that samples of the child and the
respondent no.1 would be obtained by the laboratory in the
presence of both parties for conducting the DNA test at the expense
of the husband. Additionally the directions were made that prior
thereto, the respondent no.1 shall deposit an amount of `1,00,000/-
by way of demand draft/banker’s cheque in the name of the court
which would stand forfeited and made over to the appellant in the
event that the paternity test on the basis of the DNA results shows
the husband to be the father of the child. In case, the result reveals
that the respondent no.1 is not the father of the child, the amount
would be refunded to the respondent no.1. It was further directed
that the parties to the petition, their agents, representative or any
other person acting on their behalf or any entity in print, electronic
media or internet will not print, publish or telecast any matter
relating to the case, in any manner without the permission of the
court.
177. So far as the reasoning for the order is concerned, we find
that the trial court has merely noted the bald contention of the
appellant; the provisions of the Section 112 of the Indian Evidence
Act.
The trial court has noted the reliance placed by the appellant
on the pronouncements in Goutam Kundu v. State of W.B. in (1993)
3 SC; Miss Renuka Vs. Tammanna AIR 2007 Kant 133; Sunil
Eknath Trambake Vs. Leelavati Sunil Trambake AIR 2006 Bom
140; Shri Banarsi Dass Vs. Teeku Datta (2005) 4 SCC 449; Smt.
Kanti Devi Vs. Poshi Ram (2001) 5 SCC 311 and; Dukhtar Jahan
Vs. Mohammad Farooq 187 Cr.L.J. 849.
Reliance has been placed on the extract of the 185th Report
of the Law Commission of India and that of the Supreme Court in
Dipanwita Roy v. Ronobroto Roy.
178. We find that the appellant had also objected to the DNA test
report relied upon by the respondent no.1 pointing out that the
appellant was never joined in the testing and furthermore that the
child was the third party to the consideration. The plea of
cohabitation of the appellant and the respondent no.1 is also noted
as also the denial of the respondent no.1. Without at all recording
any prima facie conclusions in accordance with law, as noted by us MAT.APP.(FC)No.17/2016 Page 93 of 95
above, simply observing that “keeping in view the facts and
circumstances of this case and in view of the discussions made
herein above”, the court recorded its satisfaction that there was a
need for conducting the DNA test of the petitioner. In our view,
the Family Court has completely failed to consider the matter, as
was required in law. The impugned order dated 28th January, 2016
is clearly contrary to the well settled principles noticed by us in the
above judgments, devoid of reasoning to support the order, fails to
consider or return a finding that the respondent no.1 had a prima
facie case in his favour and is legally not sustainable.
179. The instant case has to be examined from yet another
perspective. In Bhabani Prasad Jena the Supreme Court has held
that the court must see whether the justice of the case requires a
DNA testing and whether there is imminent need to do so. The
respondent no.1 before us is interested only in dissolution of his
marriage by decree of divorce. For this purpose, he has on two
prior occasions filed the petitions for dissolution of marriage by a
decree of divorce by mutual consent (HMA No. 1099/2014 at Saket
Courts & HMA No. 783/2014 at Patiala House Courts).
180. It is to be noted that even the joint statement of the parties
stood recorded by the Family Court, Saket on 1st of October, 2014
in HMA No. 1099/2014. If it was not for want of territorial
jurisdiction, these proceedings would have been completed.
181. In the divorce proceedings before the Family Court, the
appellant has also filed a counter claim seeking dissolution of
marriage of the parties by decree of divorce on grounds of cruelty,
inter alia on the ground that the pleadings of the respondent no.1 in
his divorce petition apart from other assertions work cruelty upon
her.
So far as the substantive relief which the respondent no.1
seeks, there is no imminent need for the directions of a DNA test.
182. In view of the above, it has to be held that there is no
imminent need for the DNA test for grant of the substantive relief
as prayed for by the respondent no.1.
XV. Conclusion
183. ‘H’ – respondent no.1 husband has not pleaded “non-access”
to the appellant wife or “no opportunity” at the time when Baby
‘X’ could have been conceived. On the contrary, he has admitted
“access”. ‘W’ - the appellant wife has effectively denied the pleas
of adultery.
184. ‘H’ has failed to make out a prima facie case justifying an
order for compelling Baby ‘X’ to give a sample for a DNA
examination. The repeated admissions of paternity by ‘H’ in his
pleadings, affidavit and his statement on oath in support on judicial
record militate against a prima facie case in favour of ‘H’ for
making the order prayed for. The husband ‘H’ has made
admissions of paternity in public records of the Registrar of Births
as well as bank record. No explanation was tendered before the ld.
Family Court Judge or before us. The respondent no.1 has
concealed material facts; is guilty of mis-statement before the
Family Court and his conduct post-conception of the child do not
support a prima facie case in his favour justifying the impugned
order. The respondent no.1 has also not established imminent need
for the order or that such order was at all necessary for a just
decision of the case. The impugned order is unreasoned, contrary
to law and unsustainable.
XVI. Result
185. As a result, the order dated 28th January, 2016 is hereby set
aside and quashed. The appeal is allowed.
186. We make it clear that nothing herein contained is a final
expression of opinion on the merits of the controversy. We have
only taken a prima facie view. The ld. Family Court Judge shall
proceed in the matter in accordance with law, uninfluenced by any
observation contained herein.
187. In view of the order passed in the main appeal, CM
No.5064/2016 does not survive for adjudication and is hereby
dismissed.
Lower Court Record be sent back forthwith.
GITA MITTAL, J
I.S.MEHTA, J
AUGUST 26, 2016
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