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Madhya Pradesh High Court · body

2013 DIGILAW 662 (MP)

Jyoti Savita v. Pawan Kumar

2013-05-17

N.K.Mody

body2013
ORDER 1. Being aggrieved by the order dated 14.10.2011 passed by IADJ, Datiya in Civil Suit No. 31/09 HMA whereby review application filed by the petitioner for recalling of the order dated 4.8.2010 was dismissed, present petition has been filed. 2. Short facts of the case are that respondent filed a divorce petition on 15.5.2009 wherein it was alleged that the marriage of the petitioner was to be solemnized with the respondent on 13.5.2007, but at the time of marriage somebody fired on the respondent, with the result respondent sustained head injuries and was hospitalized, therefore, marriage could not be solemnized. However thereafter on 15.5.2007 the marriage was solemnized. It was alleged that the petitioner lived with the respondent up to 25.6.2007 and thereafter went to her parental house. It was alleged that on 7.7.2008 petitioner came to her matrimonial house where she lived up to 20.7.2008. Thereafter again petitioner came to her matrimonial house with the younger brother Gagan on 20.4.2009. It was alleged that after 20.4.2009 petitioner is not residing with the respondent. In the petition it was prayed that decree of divorce be passed. By way of amendment it was alleged that on 20.5.2009 petitioner gave birth to the daughter namely Deepti who is not from the respondent. The petition was contested by the petitioner by filing the reply. During pendency of petition an application was filed by the respondent wherein it was prayed that since the daughther of the petitioner is not from respondent, therefore, DNA test be conducted. This application was allowed vide order dated 4.8.2010. Thereafter divorce petition filed by the petitioner was itself dismissed vide order dated 13.10.2010, which was subsequently restored. After its restoration petitioner filed an application for review of the order dated 4.8.2010 alongwith an application for condonation of delay, wherein it was alleged that the delay occurred because the suit was dismissed. The application was opposed by the respondent. After hearing the parties application for review was dismissed, hence this petition. 3. Learned counsel for the petitioner submits that the impugned order passed by the learned Court below is illegal, incorrect and deserves to be set aside. It is submitted that only on the basis of vague allegation, petitioner cannot be compelled for DNA test of her minor daughter. It is submitted that the learned Court below was not justified in dismissing the review application as well. It is submitted that only on the basis of vague allegation, petitioner cannot be compelled for DNA test of her minor daughter. It is submitted that the learned Court below was not justified in dismissing the review application as well. It is submitted that the petition be allowed and impugned order passed by the learned Court below be set aside. 4. Learned counsel for respondent supports the order and submits that the original order was passed on 4.8.2010 whereby petitioner was directed for DNA test of girl child of the petitioner, which was not challenged by the petitioner. It is submitted that it is only review application which was filed, which was dismissed on 14.10.2011 and in the writ petition it is only order dated 14.10.2011 which is challenged. It is submitted that without challenging the order dated 4.8.2010 the petition deserves to be dismissed. Learned counsel further submits that the respondent is having a strong prima facie case in his favour because the respondent has specifically pleaded in his petition for grant of decree of divorce that the respondent had no sexual access with petitioner and since the petitioner has become pregnant with an sexual access by some other person, therefore, respondent is entitled for DNA test of the child. Learned counsel placed reliance on a decision in the matter of Chanda Chouhan v. Sanjay Chouhan, 2011 (1) MPWN 22 = 2010 (5) MPHT 225 wherein this Court has held that in the case child born in about seven months time after marriage, then it cannot be concluded that the child was conceived before marriage. Reliance is also placed on a decision in the matter of Sharda v. Dharmpal, (2003) 4 SCC 493 wherein in a case for divorce accompanied by application for a direction for medical examination of respondent Hon’ble apex Court held that such power should be exercised only if the applicant has a strong prima facie case and there is sufficient material before the Court. Further reliance is placed on a decision in the matter of Seema Sharma v. Amar Sharma, 2007 (2) JLJ 280 = 2006 (3) MPLJ 523 wherein this Court held that in a case where parentage of child of parties disputed, Family Court has discretion to order DNA test. Lastly reliance is placed on a decision in the matter of Smt. Selvi v. State of Karnataka, AIR 2010 SC 1974 . Lastly reliance is placed on a decision in the matter of Smt. Selvi v. State of Karnataka, AIR 2010 SC 1974 . On the strength of aforesaid position of law, learned counsel submits that the petition be dismissed. 5. From perusal of the record it is evident that in the petition for grant of decree of divorce no allegation is made against the petitioner about her character. By way of amendment also the only fact which is stated is that Deepti is not the daughter of the petitioner from respondent. Except this, the allegation which is made is that as per ultrasound report which was found in the luggage, the petitioner was carrying pregnancy of eight weeks and five days, while petitioner was not with the respondent w.e.f. 20.7.2008 to 20.4.2009. After the orders which were passed on 4.8.2010 the petition for divorce itself was dismissed on 25.10.2010. Additional document has been filed on 13.4.2013, which shows that a joint application was also filed on 27.2.2013 under Order XXIII Rule 3 CPC. In the said application it is alleged that decree of divorce be passed, for which petitioner has stated that it is wrong to say that any compromise took place between the parties and petitioner agreed for getting the decree of divorce. It is submitted that signatures of the petitioner were obtained by the respondent on the pretext that the respondent shall file a joint application before the Court below for the maintenance of their daughter. It is further stated that due to assurance given by the respondent, petitioner signed the document bonafidely believing that her daughter will get maintenance, which will be given by the respondent. 6. In the matter of Smt. Chanda Chouhan (Supra) this Court has observed that when the child is born out of the wedlock there is a presumption in favour of his legitimacy, however it is rebuttable for which evidence must be strong, distinct, clear, satisfactory and conclusive. In the matter of Gautam Kunda v. State of West Bengal, AIR 1993 SC 2295 wherein father disputing the paternity of child, Hon’ble apex Court held that purpose of seeking blood test of child by moving an application is nothing more then to avoid payment of maintenance, without making any ground whatever to have recourse to the test. In the matter of Gautam Kunda v. State of West Bengal, AIR 1993 SC 2295 wherein father disputing the paternity of child, Hon’ble apex Court held that purpose of seeking blood test of child by moving an application is nothing more then to avoid payment of maintenance, without making any ground whatever to have recourse to the test. Hon’ble apex Court further held that Courts in India cannot order blood test as a matter of course. Whenever applications are made for such prayer in order to have roving inquiry, the prayer for blood test cannot be entertained. There must be a strong prima facie case in that the husband must establish non-excess in order to dispel the presumption arising under section 112 of the Evidence Act. 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 bastard and the mother as an unchaste woman. No one can be compelled to give sample of blood for analysis. 7. It is true that against the order dated 4.8.2010 whereby petitioner was directed for DNA test of the girl, no petition was filed, except the review application and in the petition also it is only the order passed on the review application has been challenged, but only on that ground the petition filed by the petitioner cannot be thrown keeping in view the gravity of the matter and the vague allegations made by the respondent in the petition only on the basis of ultrasound report kept in the luggage of petitioner and bare allegation of the respondent that the respondent was having no access, DNA test cannot be ordered. 8. In the facts and circumstances of the case petition filed by the petitioner is allowed and the order dated 4.8.2010 and 25.10.2010 whereby order was passed for DNA test of the daughter of the petitioner and also review application was dismissed, stands set aside with a further observation that the parties shall proceed to lead the evidence. After conclusion of evidence, if respondent is of the view that DNA test is necessary, then the respondent shall be at liberty to move the application in that regard. After conclusion of evidence, if respondent is of the view that DNA test is necessary, then the respondent shall be at liberty to move the application in that regard. At that stage after giving an opportunity of hearing to the petitioner and the evidence on record, the Court will decide the same keeping in view the position of law regarding DNA test. 9. With the aforesaid observations, petition stands disposed of.