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2015 DIGILAW 163 (JHR)

Suman Prakash @ Suman Mundu v. Divya Lalita

2015-02-04

SHREE CHANDRASHEKHAR

body2015
ORDER Seeking quashing of order dated 08.11.2011 in Matrimonial Title Suit No. 130 of 2008 whereby, the petition dated 25.05.2011 under Section 12 of the Family Court Act, 1984 has been rejected, the petitioner has approached this Court. 2. Briefly stated, the marriage of the petitioner was solemnized with the respondent-wife on 25.10.2001 at St. Marys Cathdral Church, Ranchi. After November, 2002, the couple separated and there was no physical relationship established between them. On 30.01.2003, the respondent-wife left her matrimonial house. On 07.05.2003 when the respondent came to attend last rites of her mother-in-law, she started vomiting and she was taken to doctor for medical checkup where it was found that she was pregnant and the pregnancy was of 65 days. The respondent-wife gave birth of a daughter on 11.12.2003. The petitioner filed Matrimonial Title Suit No. 130 of 2008 under Section 10 of the Indian Divorce Act, 1869 seeking divorce on the ground of adultery. The respondent filed her written statement on 23.03.2009 in which it is stated that the respondent and her family members agreed for D.N.A. test of the petitioner and their daughter however, subsequently, the petitioner changed his mind and he has not undergone the D.N.A. test. The respondent has also filed Maintenance Case No. 13 of 2008 in which she has deposed that on 22.07.2009 she agreed for D.NA. test in the Panchayat. In these facts, the petitioner filed an application under Section 12 of Family Courts Act, 1984 on 25.05.2011 seeking order of the Court for D.N.A. test of his own and his daughter however, the said petition has been erroneously dismissed vide order dated 08.11.2011. Aggrieved, the petitioner has approached this Court by filing the present writ petition. 3. A counter-application has been filed taking a plea of non-joinder of necessary party. It is stated that the writ petition suffers from suppressio veri and suggestio falsi and therefore, it is liable to be dismissed. Materials on record including the Sonography Report clearly disclose that the respondent-wife conceived when she was in her matrimonial home. Denying the allegation of the petitioner as false, frivolous, fictitious and manufactured, the impugned order dated 08.11.2011 is supported by the respondent. 4. Heard the learned counsel for the parties. 5. The learned counsel for the petitioner submits that in view of provision for scientific test in the form of D.NA. Denying the allegation of the petitioner as false, frivolous, fictitious and manufactured, the impugned order dated 08.11.2011 is supported by the respondent. 4. Heard the learned counsel for the parties. 5. The learned counsel for the petitioner submits that in view of provision for scientific test in the form of D.NA. test, a party to the matrimonial dispute case cannot be denied permission to adduce scientific evidence. The Hon'ble Supreme Court has permitted the D.NA. test even in a case in which the oral evidence adduced by the husband was not sufficient to prove the allegation of adultery. It is further submitted that the learned Trial Court has committed serious error in law while observing that the application of the petitioner-husband would be considered if his wife is not able to deny the allegation by leading her evidence. 6. Per contra, Mr. Jorong Jedan Sanga, the learned counsel for the respondent submits that a D.N.A. test cannot be ordered in routine manner. The consequence of D.N.A. test may be so serious that the mother and the child may suffer stigma whole of their life and the Court while ordering the D.N.A. test must be very cautious. 7. I have carefully considered the submissions of the learned counsel for the parties and perused the documents on record. 8. From the decision of the Hon'ble Supreme Court in Ram Kanya Bai Vs. Bharatram, reported in (2010) 1 SCC 85 , Bhabani Prasad Jena Vs. Convenor Secretary, Orissa State Commission for Women and Another, reported in (2010) 8 SCC 633 , Miss Renuka Vs. Sri Tammana & others reported in AIR 2007 Kar 133 and Goutam Kunda Vs. State of West Bangal and Another reported in (1993) 3 SCC 418 , I find that only when a strong prima facie case is found in favour of the husband and the husband, prima facie is able to establish nonaccess to wife and thus, the presumption under Section 112 of the Indian Evidence Act, 1872 is dispelled, a D.NA. test can be ordered. The Court is also required to keep in mind the consequence of ordering the blood test, and an application for D.N.A. test in the nature of roving enquiry cannot be permitted. 9. test can be ordered. The Court is also required to keep in mind the consequence of ordering the blood test, and an application for D.N.A. test in the nature of roving enquiry cannot be permitted. 9. From the perusal of the Matrimonial Suit No. 130 of 2008 it is apparent that only a bald allegation has been levelled by the petitioner-plaintiff that on 30.01.2003, the respondent-wife left matrimonial home and she came on 10.04.2003 when she started abusing petitioner and demanded money. On 07.05.2003 when the respondent-wife came to attend last rites of her mother-in-law she was found pregnant by the doctor, who examined her. I find that even the alleged adultrator has not been made party in the suit by the petitioner. The matter is still at the initial stage and the parties are yet to lead evidence. I find no reason why the application dated 25.05.2011 seeking D.N.A. test of the petitioner and his daughter can be ordered. However, in so far as, the observation of the Trial Court that the application seeking D.N.A. test can be considered after the defendant-wife fails to deny the allegation, I am of the opinion that the same requires interference by this Court and accordingly, it is ordered that after the witnesses on behalf of the plaintiff are examined, the petitioner/plaintiff would be at liberty to move an application seeking D.N.A. test, which may be considered by the Trial Court, in accordance with law. Accordingly, I.A. No. 1524 of 2014 stands disposed of. Ordered accordingly.