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2006 DIGILAW 315 (MP)

SAVITABAI, CHANDRABHAN v. CHANDRABHAN DUBEY

2006-03-01

S.R.WAGHMARE

body2006
( 1 ) BY this petition, petitioner smt. Savita Bai has challenged the order dated 8-9-2003, passed by the IInd additional District Judge, Gadarwara, District-Narsinghpur in Civil Suit No. 24-A/2003 directing the petitioner to have her son undergo the D. N. A. Test for confirmation of his paternity. ( 2 ) BRIEF facts of the case are that petitioner Smt. Savita Bai was married to the respondent Chandrabhan Dubey on 22-4-1996 according to Hindu custom and gave birth to the child, a son on 21-11-1996 after a period of only seven months and doubting the paternity of the child, the respondent chandrabhan Dubey filed suit for divorce under Section 12 of the Hindu Marriage Act stating that Savita Bai was pregnant prior to the marriage and he does not wish to continue with the said alliance. ( 3 ) THE petitioner Smt. Savita Bai filed her written statement. Shri Chandrabhan dubey had earlier filed an application requesting the same that the son should undergo the D. N. A. Test, which was rejected by the Trial Court by order dated 17-3-2001. ( 4 ) THE written statement was filed by the petitioner. The evidence was led by both the parties and when the matter was fixed for final arguments, the respondent Chandrabhan dubey again moved an application under section 151 of the C. P. C. stating that in the light of the judgment of the Supreme Court in the matter of Sharda v. Dharmpal, AIR 2003 SC 3450 whereby the Apex Court had held that the Matrimonial Court had the jurisdiction to order a person to undergo the medical test and such an order did not violate the fundamental right of liberty under article 21. However, the Apex Court cautioned that the Court should exercise such powers only if the applicant has a strong prima facie case and if the person refuses to undergo the medical test, the Court would be entitled to draw an adverse inference. ( 5 ) THE application was allowed by the trial Court on the said basis by order dated 8-9-2003 and hence the present petition by smt. Savita Bai on the grounds that the court had already ruled on such an application on 17-3-2001 and hence the second application was barred by the principle of res judicata. ( 5 ) THE application was allowed by the trial Court on the said basis by order dated 8-9-2003 and hence the present petition by smt. Savita Bai on the grounds that the court had already ruled on such an application on 17-3-2001 and hence the second application was barred by the principle of res judicata. Moreover, both the parties had concluded their evidence and the case was listed for final hearing and the application was apparently mala fide. ( 6 ) COUNSEL for petitioner has also pointed out that in the matter of Sharda v. Dharmpal, ( AIR 2003 SC 3450 ) (supra) the court had cautioned that the power to grant such directions for medical examination were to be exercised only when the applicant had a strong prima facie case and the court had sufficient material brought before it to justify the order. ( 7 ) COUNSEL for respondent Chandrabhan dubey on the other hand has stated that he had filed for divorce mainly on the ground that he suspected the paternity of the child and doubted the moral character of the petitioner-wife Smt. Savita Bai and hence it was crucial for him to prove conclusively that the child was not born out of lawful wedlock. Pointing out to para 34 of the said judgment which states thus : "in certain cases medical examination by the experts in the field may not only found to be leading the truth of the matter but may also lead to removal of misunderstanding between the parties. It may bring the parties to terms. " ( 8 ) SECONDLY, the Apex Court had held that no-one can be compelled to give any medical test but an adverse inference can be drawn, if the respondent refuses to submit to the medical examination. ( 9 ) FURTHER relying on Banarsi Dass v. Teeku Dutta (Mrs.), (2005) 4 SCC 449 , counsel for respondent has pointed out that reiterating the directions and the ratio laid down in the matter of Sharda v. Dharmpal, ( AIR 2003 SC 3450 ) (supra), the Apex Court has stated regarding D. N. A. Test thus: "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 ribo-nucleic 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 child was not born to the husband, the conclusiveness in law would remain irrebutable. 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. " ( 10 ) THE Court had further directed that dna Test was not to be directed as a matter of routine, it is to be directed only in deserving cases. ( 11 ) WHEREAS, counsel for petitioner on the other hand has pointed out that in the case of Gautam Kundu v. State of West bengal, (1993) 3 SCC 418 : ( AIR 1993 SC 2295 )relied upon by the Apex Court in the matter of Sharda v. Dharmpal, ( AIR 2003 SC 3450 ) (supra), categorically cautioned that 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 and having regard to the future of the child vehemently submitted that such directions should not be granted in the said case. ( 12 ) HOWEVER, since both cases decided by the Apex Court held that the right of privacy under Article 21 was not absolute and such a direction could be given looking to the conclusiveness of the DNA Test and its scientific accuracy; the respondent is well within his rights to make such a demand since the burden to proving the illegitimacy is on the husband since the presumption under Section 112 of the Evidence Act is in favour of the child. Section 112 lays down that if the person was born during continuance of a valid marriage between his mother and any man and the child was born after seven months of marriage, the burden is levied on the husband to prove his case. ( 13 ) IN the matter of Sharda v. Dharmpal, ( AIR 2003 SC 3450 ) (supra), the Apex Court had also observed that if there was a conflict between fundamental rights of two parties; that, right, which advances public morality would prevail. Moreover regarding the aforesaid two cases, the Apex Court was considering the application under Order 32, rule 15 of the C. P. C. regarding the soundness of mind in the matter of Sharda v. Dharmpal (supra); the case of Banarsi Dass v. Teeku Dutta (supra), pertained to the issuance of a Succession Certificate and hence in both the cases the legitimacy of the child was not involved in the sense of the present case where the same is the root cause for the divorce petition filed by the respondent chandrabhan Dubey and to bear the fatherhood of such an illegitimate child is causing a serious strain on the respondent according to his counsel. ( 14 ) SINCE the matrimonial ties are based on the fundamental rights of trust and healthy regard for each others' feelings, such a test could also lay to rest the unnecessary doubts created in the mind of the respondent-husband. This is one fit case where the apex Court has directed when such a direction could be given only in deserving cases and there is prima facie case in favour of the respondent-husband due to the medical evidence. I do not deem it fit to interfere in the orders passed by the Court below since all these aspects have already been taken into consideration. ( 15 ) HOWEVER, counsel for petitioner has made one last prayer in the alternative that in case the direction is to be upheld, it be directed that the petitioner be examined in a Government Civil Hospital and the prayer being reasonable is accepted. The Trial Court shall direct that the petitioner's son be examined for the DNA Test in an approved government Hospital in accordance with law. ( 16 ) WITH these directions, the petition is disposed of. No order as to costs. ( 17 ) CERTIFIED copy as per rules. Order accordingly. .