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2008 DIGILAW 461 (GAU)

Munmun Barkakati Das v. Girish Das

2008-06-26

BROJENDRA PRASAD KATAKEY

body2008
JUDGMENT B.P. Katakey, J. 1. The Petitioner wife by the present petition is invoking the jurisdiction of this Court under Article 227of the Constitution of India by challenging the order dated 14.5.2007 passed by the learned Principal Judge, Family Court at Guwahati in Case No. FC(Civil) 417 of 2005 allowing the prayer made by the Respondent husband vide application dated 18.4.2008 for conducting the deoxyribonucleic acid test (commonly known as DNA test) and directing the Petitioner wife to produce the minor child before the court on 12.7.2007 for conduct of such DNA test. 2. A divorce proceeding in FC(Civil) 417 of 2005 was instituted by the Petitioner wife in the Family Court at Guwahati under Section 13 of the Hindu Marriage Act, 1955 ('the Act') praying for a decree dissolving the marriage between the Petitioner and the Respondent on the ground of cruelty. On receipt of the summons the Respondent husband entered appearance and filed written statement denying the allegation of cruelty made by the Petitioner wife in the application seeking divorce. During the pendency of such proceeding before the learned Family Court an application dated 18.4.2007 was filed by the Respondent husband intimating the learned court below that he is ready to get the marriage between the Petitioner and himself dissolved by a decree, provided the Petitioner wife do not claim "anything even maintenance of the children". In the said application a prayer has been made for conducting DNA test of the child to ascertain the paternity of the child. Since no objection was filed by the Petitioner wife, such prayer was allowed by the learned Principal Judge" of the Family Court vide order dated 14.5.2007, which is under challenge in the present petition. 3. I have heard Mr. B. Banerjee, learned Counsel for the Petitioner wife and Mr. R. De, learned Counsel appearing on behalf of the Respondent husband. 4. Mr. Banerjee, learned Counsel for the Petitioner wife referring to the pleadings of the Respondent husband in the written statement has submitted that the Respondent husband has admitted the paternity of the children and therefore the learned Principal Judge ought not to have passed the order dated 14.5.2007 directing conduct of DNA test of the minor child to ascertain the paternity, on the basis of the application dated 18.4.2007, wherein also the Respondent husband has not challenged the paternity of the child. According to Mr. According to Mr. Banerjee, since the minor child was admittedly born during the continuance of the valid marriage between the Petitioner and the Respondent, it is conclusive proof that the child is a legitimate son of the Respondent in view of the presumption to be drawn under Section 112 of the Evidence. However, such presumption though is rebuttable, the Respondent husband has not placed anything on record even to suggest that the parties to the marriage had no access to each other at any time when the child could have been begotten and on the other hand, the Respondent husband in the written statement has admitted the paternity of the child, submitted by the learned Counsel. Therefore, according to the learned Counsel, there was no occasion at all to pass the order for DNA test of the child, as has been done by the learned Principal Judge, Family Court, vide order dated 14.5.2007. Mr. Banerjee further submits that to pass an order for DNA test of the child, at the instance of a party to the proceeding, such party must establish strong prima facie case, which admittedly is lacking in the present case. In support of the contention the learned Counsel has referred to the decision of the Apex Court in the case of Banarsi Dass v. Mrs. Teeku Dutta and Anr., (2005) 4 SCC 449 . 5. Mr. De, learned Counsel appealing on behalf of the Respondent husband, supporting the order dated 14.5.2007, has submitted that though the Respondent husband in the written statement has admitted paternity of the child, but because of the subsequent stand taken by the Petitioner about the paternity of such child, an application dated 18.4.2007 was filed to find out the paternity of such child which was very much necessary for passing necessary order relating to the entitlement for maintenance by such child. According to Mr. De, since no objection was filed by the Petitioner wife against the prayer by the Respondent made vide application dated 18.4.2007, the learned court below has rightly passed the order impugned in the petition. Mr. According to Mr. De, since no objection was filed by the Petitioner wife against the prayer by the Respondent made vide application dated 18.4.2007, the learned court below has rightly passed the order impugned in the petition. Mr. De by referring to the decision of the Apex Court in the case of Sharda v. Dharmpal, (2003) 4 SCC 493 has submitted that direction for conducting the medical test including DNA test can be ordered by the court, even by invoking the power under Section 151 of Code of Civil Procedure, if such medical test is required to be conducted for deciding the case. It has further been submitted that such a direction for conducting the medical test would not amount to violation of the fundamental right of the person, guaranteed under Article 21 of the Constitution. In the instant case, according to Mr. De, as such test is required to be conducted to ascertain the paternity of the child, no illegality has been committed by the learned court below in directing such a test be conducted, though the order dated 14.5.2007 may not contain the reasons for issuance of such a direction. 6. It is the specific case of the Petitioner wife in the application under Section 13 of the Act, before the learned Family Court that the marriage between the Petitioner and the Respondent was solemnized on 1.12.1982, according to Hindu rites, which was consummated and they were blessed with a female and a male child on 28.12.1983 and 6.6.1997 respectively. The Petitioner in the said application has also stated that after the birth of the male child the Respondent again started harassing and torturing her on different pretests. The Respondent husband in the written statement has not denied the paternity of both the children and has in fact in paragraph 1(a) admitted the statement made by the Petitioner in paragraph-2 of the application filed under Section 13 of the Act. The Respondent husband in paragraph-4 has also pleaded as follows: ...the Respondent being peace loving man and considering the well being of the children and to keep his own dignity and respect before his own children silently left the residence broken hearted. The Respondent husband in paragraph-4 has also pleaded as follows: ...the Respondent being peace loving man and considering the well being of the children and to keep his own dignity and respect before his own children silently left the residence broken hearted. In paragraph 6 of the written statement the Respondent husband has further pleaded as follows: ...It is stated that the Respondent has always shouldered the financial and other responsibility of the Petitioner and the children to the best of his capabilities.... The Respondent does not want a divorce from the Petitioner at this stage of their life with two grown up children.... The Respondent husband in the written statement has further pleaded that he may be allowed to meet both the children, as the Petitioner wife is preventing the Respondent from meeting the children; and also threatened the Respondent that she will take the police action if he tries to meet the children. 7. From the narration of the pleadings of the Respondent husband in the written statement it is apparent that he never questioned the paternity of both the children. The Respondent husband.thereafter on 18.4.2007 filed an application praying for directing conduct of DNA test of the child "to find out the truth for the ends of justice". In the said application also the Respondent husband never questioned the paternity of the children and in a mechanical manner, without there being any pleadings to that effect, prayed for passing the order, for conducting the DNA test. For better appreciation of facts the relevant contents of the application filed by the Respondent husband is quoted below: That the Petitioner is now ready to get himself divorced with conditions that the Petitioner shall not claim anything even maintenance of the children, which the Respondent disclaim to be his issues and court may pass order for their DNA test to find out the truth for the ends of justice and pass necessary order. 8. 8. Section 112 of the Evidence Act provides it shall be conclusive proof in favour of legitimacy of the child, if he was born during the continuance of a valid marriage between the mother arid any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, unless it can be shown that the parties to the marriage had no access to each other at any time when the child could have been begotten. Such presumption is a very strong presumption, though rebuttable. In the case in hand, the Respondent husband as discussed above, never challenged the parentage of the child. 9. The learned Judge, Family Court, vide order dated 14.5.2007 allowed the prayer made by the Respondent husband for conducting the DNA test of the child and directed the Petitioner wife to produce the minor child for conducting such test. Such order was passed by the learned Principal Judge without assigning any reason whatsoever as to the necessity of passing such order and also without considering the pleadings of the parties in the application filed under Section 13 of the Act and in the written statement filed by the Respondent husband. Such exercise of the power by the learned Principal Judge, is nothing but mechanical exercise of the power, without applying her mind to the relevant facts as well as the provision contained in Section 112 of the Evidence Act. Such mechanical exercise of the power by the learned Principal Judge cannot at all be approved. 10. The Apex Court in Banarsi Dass (supra) has observed that though the court has power to direct DNA test but such power is to be exercised very carefully and provided strong prima facie case is established by the party seeking such DNA test. The Apex Court while noticing the provisions of Section 112 of the Evidence Act further opined that it requires the party disputing the parentage to prove non access in order to dispel the presumption of the fact under Section 112 of the Evidence Act and which presumption is a very strong one though rebuttable. The Apex Court while noticing the provisions of Section 112 of the Evidence Act further opined that it requires the party disputing the parentage to prove non access in order to dispel the presumption of the fact under Section 112 of the Evidence Act and which presumption is a very strong one though rebuttable. In Sharda (supra) the Apex Court has also observed that though the court has a discretion to pass an order directing the DNA test, it must have sufficient materials before it to order such, in exercise of its jurisdiction and other discretionary power conferred on the court, so that the process of the court is not abused and no order for such medical test is to be passed unless Court arrives at the findings that the party has made a strong prima facie case. The Apex Court further observed that in a given case order for DNA test can be passed, if such test is required to be conducted to arrive.at a just decisions on the issue involved in the proceeding and to unearth the truth. It has further been observed that exercise of such discretion by the court would be subject to the supervisory jurisdiction of the court under Article227 of the Constitution of India. 11. In the instant case as noticed above, the learned Principal Judge has, on mere asking, passed the order for conducting DNA test of the minor child, without there being any dispute relating to his paternity, as in the written statement filed by the Respondent husband the paternity of the child has been admitted. There was no occasion on the part of the learned Principal Judge to pass such an order directing the DNA test of the minor child, even if no objection is filed by the Petitioner wife against the prayer made by the Respondent husband. Directing the conduct of DNA test does not depend upon filing of objection against such prayer, but it depends upon the facts and circumstances of each case and on judicious exercise of the discretion. 12. In view of the aforesaid discussion, I am of the view that the order dated 14.5.2007 passed by the learned Principal Judge needs be interfered with in exercise of jurisdiction under Article 227 of the Constitution of India. Accordingly the order dated 14.5.2007 is set aside. 13. 12. In view of the aforesaid discussion, I am of the view that the order dated 14.5.2007 passed by the learned Principal Judge needs be interfered with in exercise of jurisdiction under Article 227 of the Constitution of India. Accordingly the order dated 14.5.2007 is set aside. 13. The learned Family Court is directed to proceed with the proceedings initiated by the Petitioner wife under Section 13 of the Act, in accordance with law. 14. The petition is accordingly allowed. No cost. 15. Send down the records forthwith. 16. This order may be brought to the notice of the hon'ble Portfolio Judge. Petition allowed