1. In this writ petition preferred under Article 227 of the Constitution of India, challenge has been made to the order dated 24-8-2016 passed in HMA Case No.33/2015 by the learned Principal Judge, Family Court, Mandla whereby an application submitted by the petitioner for DNA test of the respondent has been rejected.
2. The factual expose, succinctly adumbrated in a nutshell is that the petitioner got married with the respondent in the year 1999. He is a government servant posted as a clerk in the I.T.I., Chhindwara, whereas the respondent is posted as a teacher in District Mandla. The parties are living at their respective places of posting ever since after solemnisation of their marriage in the year 1999.
A petition for dissolution of marriage under Section 13(1) of the Hindu Marriage Act, 1955 is filed by the petitioner against the respondent on the ground of adulterous behaviour alleging that she is having extra-marital relationship.
3. The respondent-wife has also lodged a report against the petitioner for commission of offence punishable under Section 494 of the Indian Penal Code. A child - Vatsla Jharia was born during the wedlock of the petitioner and the respondent, but the petitioner has alleged that she is not his daughter, as there was no cohabitation with the respondent since the year 2006. It is submitted that the petitioner is posted at Chhindwara since 26-4-2006, whereas the said child has born in the year 2012.
4. The petitioner preferred an application before the Family Court for DNA test of the child in order to ascertain paternity of the child - Vatsla Jharia. In reply to the said application the respondent has refused for the DNA test of the child and herself. In addition to the denial in reply to the said application, she also made a statement for refusal of the DNA test of herself and the daughter. In this regard she had also made a specific note in the order-sheet in her own writing, refusing for DNA test.
5. By the impugned order the said application has been rejected by the Family Court on the ground that the respondent cannot be compelled for the DNA test, when she had specifically denied and refused for the said test. It is also mentioned in the order-sheet that the application has been filed prior to adducing of evidence before the Court below as the evidence is yet to commence on behalf of the parties. The Court has also mentioned in the order- sheet that adverse inference of refusal of DNA test by the respondent shall be taken into consideration at the time of passing final judgment and the case has been fixed for evidence.
6. Counsel for the petitioner submitted that the order impugned is perverse and illegal, as request for DNA test has been rejected by the Court without taking into consideration the pleadings advanced in the plaint and in the application, which prima facie establish that the respondent was leading an adulterous life and was having illicit relations with another person, whose name is also mentioned in the divorce petition, the Court ought to have allowed request for DNA test. It is contended that it would be impossible for him to establish the alleged infidelity of wife and the DNA test is the most legitimate scientifically perfect He further submitted that the Apex Court in the case of Nandlal Wasudeo Badwaik vs. Lata Nandlal Badwaik and another, (2014) 2 SCC 576 held that the DNA test is only a scientific method, by which the paternity of a child can be ascertained.
7. To buttress his submissions he also relied on the judgment of the Supreme Court rendered in the case of Sharda vs. Dharampal, (2003) 4 SCC 493. He submitted that the right to individual privacy of the respondent would have been considered only after passing the order for DNA test and then only adverse inference and presumption as mentioned in Section 114 of the Indian Evidence Act, can be drawn. Thus, in sums and substance counsel for the petitioner has urged the Court below has erred while rejecting the application for DNA test merely on the ground of refusal of the respondent for conducting the DNA test.
8. Combating the aforesaid submissions, counsel for the respondent submitted that the application for the purpose of of the DNA test has been filed by the petitioner at an early stage of the proceedings of the suit. He has strenuously urged that the evidence of the parties have yet to be recorded and the petitioner would have an opportunity to make request for DNA test after recording evidence or can request the Court to draw adverse inference against respondent for refusing the DNA test in terms of Section 114 of the Evidence Act. To substantiate his submission, he referred to paras 15, 18 and 19 of the judgement of the Apex Court passed in Nandlal Wasudeo Badwaik (supra). Besides, he has placed reliance on paras 10 and 18 of the judgment the Apex Court rendered in the case of Dipanwita Roy vs. Ronobroto Roy, (2015) 1 SCC 365 and submitted that the Apex Court has laid down that the courts have to strike the balance in the cases of seeking direction for conducting DNA test vis-a-vis right of an individual privacy. He supported the impugned order in the light of the aforesaid judgments and submitted that there is no illegality in the impugned order, as the Court below has also held that the consequence of refusal of the respondent in regard to DNA test, would be taken into consideration at the time of passing final judgment in the matter.
9. To appreciate the rival contentions raised at the Bar, it is apt to reproduce the order impugned in the present petition:
"VERNACULAR MATTER OMITTED" 10. Upon perusal of the impugned order it is manifest, that the application seeking direction for DNA test has been filed prior to recording of evidence of the parties. The respondent has refused for the DNA test of herself and also of the child in the written reply and also in her oral statement made before the Court. In addition to that, she had also made a handwritten note in the order-sheet that she is not willing for the DNA test. The Court has also observed in the impugned order that the adverse inference of refusal for the DNA test would be taken into consideration at the time of passing of the final judgment.11. It is condign to survey the proposition of law in respect of prayer for DNA test in order to ascertain the paternity and legitimacy of the child and infidelity of wife. At this juncture it is useful to refer the provisions of Section 112 of the Evidence Act. It reads thus:
"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."
The word `access'' used in Section 112 of the Act was considered by the Privy Council in the case of Karapaya Servai vs. Mayandi, AIR 1934 PC 49 and it was held that it connotes only the existence of an opportunity for marital intercourse, and in case such an opportunity was shown to have existed during the subsistence of a valid marriage the provision explained the same as a conclusive proof of the fact that the child born during the subsistence of the valid marriage, was a legitimate child.
12. The said judgment was followed by the Apex Court in Chilukuri Venkateswarlu vs. Chilukuri Venkatanarayana, AIR 1954 SC 176. In the case of Goutam Kundu vs. State of W.B ., (1993) 3 SCC 418 it was held by the Apex Court that the order for blood test cannot be passed as a matter of course. 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. It was further held that no one can be compelled to give sample of blood for analysis. In the case of Kamti Devi vs. Poshi Ram, (2001) 5 SCC 311 in which it was held that the result of a genuine DNA test is said to be scientifically accurate, but even that it is not enough to escape from the conclusiveness of Section 112 of the Evidence Act.
13. In the case of Sham Lal vs. Sanjeev Kumar, (2009)12 SCC 454 it was held that the presumption under Section 112 of the Evidence Act cannot be displaced by mere balance of probabilities.. or any circumstance creating doubt.
14. In the case of Sharda vs. Dharmapal (supra) the Apex Court explained that the ratio of Goutam Kudus'' case (supra) was not an authority for the proposition that under no circumstances the Court can direct for blood test to be conducted.
15. In Selvi vs. State of Karnataka, (2010) 7 SCC 263 the Apex Court held that no individual should be forcibly subjected to any of the techniques whether investigation in criminal cases or otherwise as it would amount an unwarranted intrusion into personal liberty.
16. The Apex Court in the case of Dipanwita Roy vs. Ronobroto Roy, (supra) where the High Court had already directed for the DNA test, held in para 18 of the order while upholding the order passed by the High Court by putting a caveat before passing of the order regarding paternity test by DNA, observed thus :
"18. 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 concerned Court, by drawing a presumption of the nature contemplated in Section 114 of the Indian 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 Indian Evidence Act. Even though, as already stated above, undoubtedly the issue of legitimacy would also be incidentally involved."
17. In the light of para 18 of the judgment passed by the Apex Court in Dipanwita Roy vs. Ronobroto Roy, (supra), the impugned order cannot be held to be illegal. It has been held by the Apex Court that a person cannot be compelled for the DNA test, though, the DNA test is most legitimate and scientifically perfect means which the husband can use to establish and ascertain the paternity and infidelity, but at the same time the Court has evolved the principle of balance by directing for preservation and the right of individual privacy to the extent possible and, therefore, the Court itself has held that in case, the wife declines for the DNA test, the Court can draw presumption as contemplated in Section 114 of the Evidence Act, without disturbing the presumption envisaged in Section 112 of the Evidence Act.
18. However, as discussed above in the light of facts and the law in respect of directions for DNA test and also taking into consideration the submission of respondent that the petitioner can file an application for DNA test after recording of evidence, the petitioner will have an opportunity to make a request for DNA test after recording of evidence or, to request the Court to draw adverse inference against the respondent for refusing the DNA test in terms of Section 114 of the Indian Evidence Act.
19. Thus, in view of the aforesaid enunciation of law discussed in preceding paragraphs, I do not find any illegality and perversity of approach in the impugned order warranting interference of this Court in exercise of jurisdiction under Article 227 of the Constitution of India and the arguments advanced by the counsel for the petitioner cannot be countenanced at this stage.
20. Ex-consequenti, the writ petition being devoid of merit, is dismissed with the aforesaid liberty. In the facts and circumstances of the case, there shall be no order as to costs.
