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2018 DIGILAW 4403 (MAD)

Selvaraj v. Dhatchayani

2018-11-30

M.S.RAMESH

body2018
JUDGMENT : (Prayer: Civil Revision Petition filed under Article 227 of the Constitution of India praying to allow the CRP setting aside the order of the Learned Subordinate Judge, Ponneri in I.A.No.20 of 2013 in H.M.O.PNo.46 of 2009 and dated 06.06.2017 and order the DNA test of the child said to have been begotten by the Respondent.) 1. The order under challenge in the present Revision is rejection of the petitioner’s application under Section 112 of the Indian Evidence Act rejecting his request to subject the child and the respondent herein to a DNA test. The main ground raised by the petitioner is that though he had clearly stated in his main petition for divorce filed on the ground of infidelity that the respondent herein had left the matrimonial house on 22.11.2005 and had reconciled with him on 16.04.2007 only, she had declared that she was pregnant and as such the impregnation was not through the petitioner herein. Hence, he alleges infidelity on the part of the respondent and thereby seeks for divorce by placing reliance on the date of desertion mentioned in the petition as well as the date in the police complaint lodged by the respondent herein dated 16.10.2009 wherein she had stated that she had left the matrimonial house after three months. The learned counsel would submit that the child born to the respondent herein was not through the petitioner and therefore, he had filed this application under Section 112 of Indian Evidence Act. In support of his contention, he also relied upon the judgment of the Hon’ble Apex Court (Nandlal Wasudeo Badwaik Vs. Lata Nandlal Badwaik & Another), (Dipanwita Roy Vs. Ronobroto Roy) as well as a decision of this Court (T.Nagaraj Vs. Sumathi). 2. The trial Court had rejected the petitioner’s application in I.A.No.20 of 2013 filed under Section 112 of Indian Evidence Act on the ground that the uncorroborated testimony of the petitioner alone is not sufficient to hold that the petitioner had no occasion to have intimacy with his wife during the relevant period of time. Observing so, the trial Court had rejected the petitioner’s application. Before, analysing the applicability of the decision cited by the learned counsel for the petitioner, it would be appropriate to have a glance at Section 112 of the Indian Evidence Act 1872. The section reads as follows: “112. Observing so, the trial Court had rejected the petitioner’s application. Before, analysing the applicability of the decision cited by the learned counsel for the petitioner, it would be appropriate to have a glance at Section 112 of the Indian Evidence Act 1872. The section reads as follows: “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.” Conclusive proof of legitimacy as contemplated under Section 112 of Indian Succession Act would arise unless it is shown that the parties to the marriage they had no access to each other at any time, when he could have begotten such a child. 3. In this background, it would be pertinent to look into the facts revealed to the trial Court by the petitioner herein. It is the case of the petitioner that his wife left the matrimonial house on 22.11.2005 and returned on 16.04.2007 between which time, she had became pregnant. These dates are reiterated in the affidavit filed in support of the application in I.A.No 20 of 2013. The petitioner herein, in order to establish a prima facie case also relies upon police complaint dated 16.10.2009 alleged to have been given by the respondent herein and a copy of this petition is produced before this Court. 4. The arguments of the learned counsel for the petitioner is to the effect that since the complaint evidences that she had left matrimonial house on 06.06.2004, it is a prima facie proof that she has admitted that she was not living or residing with the petitioner herein from atleast 9th month of 2004 and therefore, the pregnancy would not have been at the instance of petitioner herein. I am unable to comprehend as to why the petitioner, places reliance on the complaint dated 16.09.2009, which admittedly was never produced before the learned Subordinate Judge either with the main petition or with the interim application or during the course of the enquiry. I am unable to comprehend as to why the petitioner, places reliance on the complaint dated 16.09.2009, which admittedly was never produced before the learned Subordinate Judge either with the main petition or with the interim application or during the course of the enquiry. When the trial court did not have opportunity even to look into complaint which was not before it, the petitioner will not be justified in complaining that the trial Court had not relied upon the alleged criminal complaint. 5. In normal circumstances, this court, while exercising its revisional powers, would not even look into the complaint that was not produced before the trial Court. Nevertheless, certain glaring inconsistencies in the dates of the complaint relied upon by the petitioner, constrains this Court to make certain remarks on the same. 6. As per the original petition in HMOP.No.46 of 2009 petitioner has come with the categorical statement that his wife left her matrimonial house on 21.05.2005 only, where as, in the police complaint dated 16.09.2009, which is now produced before this Court, he relied upon the statements of the respondent that she has left the matrimonial House three months after 06.06.2004, which is contrary to his own averments in the petition. Even assuming that this document could be looked into for the purpose of deciding the application filed under section 112 of Indian Evidence Act, it cannot be stated that there is a prima facie case to prove infidelity on the part of the respondent herein. 7. That leaves this Court to deal with the documents that were available before the trial Court to consider the petitioner’s application seeking for DNA test. The only two documents that were available are the petitioner’s own petition and the supporting affidavit filed in I.A.No.20 of 2013 dated 29.06.2018. But for these petitioners’ own statements, there is nothing more on record before the trial Court to show that the petitioner was not residing with the respondent during the period in which she is alleged to have become pregnant. Incidentally, the respondent herein had filed a counter in I.A.20 of 2019 dated 09.07.2013 wherein she had categorically denied the allegation that she was not having any physical intimacy with the petitioner herein. She further had stated in the counter that there is no secrecy in the birth of the child and that child was born to the petitioner through the respondent. She further had stated in the counter that there is no secrecy in the birth of the child and that child was born to the petitioner through the respondent. When there is a statement and counter statement on such ground of infidelity, the same could only be an issue for proof which could be tested during the course of trial. 8. Section 112 of Indian Evidence Act provides for conclusive proof of legitimacy. It requires to be established by the parties that they had no access to each other at any time, whereby they could have begotten a child. Hence, unless it is clearly shown without any iota of doubt before the trial court that there was strong possibility that the parties to the marriage did not have access to each other during the crucial period, the petitioner cannot, as a matter of right, subject the child or its mother to a DNA test. In the light of the above observations, I shall now deal with the decisions cited by the learned counsel for the petitioner. 9. In the decision of the Hon’ble Apex Court in (Dipanwita Roy Vs. Ronobroto Roy), the observations made are as hereunder: “11. The question that has to be answered in this case, is in respect of the alleged infidelity of the appellant-wife. The respondent-husband has made clear and categorical assertions in the petition filed by him under Section 13 of the Hindu Marriage Act, alleging infidelity. He has gone to the extent of naming the person, who was the father of the male child born to the appellant-wife. It is in the process of substantiating his allegation of infidelity, that the respondent-husband had made an application before the Family Court for conducting a DNA test, which would establish whether or not, he had fathered the male child born to the appellant-wife. The respondent feels that it is only possible for him to substantiate the allegations levelled by him (of the appellant-wife’s infidelity) through a DNA test. We agree with him. In our view, but for the DNA test, it would be impossible for the respondent-husband to establish and confirm the assertions made in the pleadings. We are therefore satisfied, that the direction issued by the High Court, as has been extracted herein above, was fully justified. We agree with him. In our view, but for the DNA test, it would be impossible for the respondent-husband to establish and confirm the assertions made in the pleadings. We are therefore satisfied, that the direction issued by the High Court, as has been extracted herein above, was fully justified. DNA testing is the most legitimate and scientifically perfect means, which the husband could use, to establish his assertion of infidelity. This should simultaneously be taken as the most authentic, rightful and correct means also with the wife, for her to rebut the assertions made by the respondent-husband, and to establish that she had not been unfaithful, adulterous or disloyal. If the appellant-wife is right, she shall be proved to be so. 12. We would, however, while uploading 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.” 10. In similar lines, the Hon’ble Apex Court, in a decision (Nandlal Wasudeo Badwaik Vs. Lata Nandlal Badwaik & Another), the following observations were also made are as hereunder: “We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancement and DNA test were not even in contemplation of the Legislature. The result of DNA test is said to be scientifically accurate. Although Section 112 raises a presumption of conclusive proof on satisfaction of the conditions enumerated therein but the same is rebuttable. The presumption may afford legitimate means of arriving at an affirmative legal conclusion. While the truth or fact is known, in our opinion, there is no need or room for any presumption. Where there is evidence to the contrary, the presumption is rebuttable and must yield to proof. The presumption may afford legitimate means of arriving at an affirmative legal conclusion. While the truth or fact is known, in our opinion, there is no need or room for any presumption. Where there is evidence to the contrary, the presumption is rebuttable and must yield to proof. Interest of justice is best served by ascertaining the truth and the Court should be furnished with the best available science and may not be left to bank upon presumptions, unless science has no answer to the facts in issue. In our opinion, when there is a conflict between a conclusive proof envisaged under law and a proof based on scientific advancement accepted by the world community to be correct, the latter must prevail over the former. We must understand the distinction between a legal fiction and the presumption of a fact. Legal fiction assumes existence of a fact which may not really exist. However presumption of a fact depends on satisfaction of certain circumstances. Those circumstances logically would lead to the fact sought to be presumed. Section 112 of the Evidence Act does not create a legal fiction but provides for presumption. The husband’s plea that he had no access to the wife when the child was begotten stands proved by the DNA test report and in the face of it, we cannot compel the appellant to bear the fatherhood of a child, when the scientific reports prove to the contrary. We are conscious that an innocent child may not be bastardized as the marriage between her mother and father was subsisting at the time of her birth, but in view of the DNA test reports and what we have observed above, we cannot forestall the consequence. It is denying the truth. “Truth must triumph” is the hallmark of justice. As regards the authority of this Court in the case of Kamti Devi (Supra), this Court on appreciation of evidence came to the conclusion that the husband had no opportunity whatsoever to have liaison with the wife. There was no DNA test held in the case. In the said background i.e. non-access of the husband with the wife, this Court held that the result of DNA test “is not enough to escape from the conclusiveness of Section 112 of the Act”. The Judgment has to be understood in the factual scenario of the said case. There was no DNA test held in the case. In the said background i.e. non-access of the husband with the wife, this Court held that the result of DNA test “is not enough to escape from the conclusiveness of Section 112 of the Act”. The Judgment has to be understood in the factual scenario of the said case. The said judgment has not held that DNA test is to be ignored. In fact, this Court has taken note of the fact that DNA test is scientifically accurate. We hasten to add that in none of the cases referred to above, this Court was confronted with a situation in which DNA test report, in fact, was available and was in conflict with the presumption of conclusive proof of legitimacy of the child under Section 112 of the Evidence Act. In view of what we have observed above, these judgments in no way advance the case of the respondents.” 11. In the decision (Dipanwita Roy Vs. Ronobroto Roy), the Hon’ble Apex Court had discussed various other judgments of the Hon’ble Apex Court and had come to the conclusion that, the only possible way for the husband therein to substantiate the allegation levelled by him in connection with his wife infidelity, was through a DNA test. The reason for arriving at such a finding is the outcome of the facts of that particular case. In the above observations extracted, it seen that the Hon’ble Apex Court was of the view that the husband made out a strong prima facie case since it had observed, “he has gone to the extent of naming the person, who was the father of the male child born to the appellant wife”. Even though, such a prima facie case was established before the Court, the Hon’ble Apex Court did not give any positive direction to subject the child to a DNA Test but gave the option to the wife to accept the direction for a DNA Test or to take protection under the presumption contemplated under the Section 114 of the Indian Evidence Act. It is in such similar facts that the decision of the Hon’ble Apex Court, extracted above and (Nandlal Wasudeo Badwaik Vs. Lata Nandlal Badwaik & Another) also came to be passed. It is in such similar facts that the decision of the Hon’ble Apex Court, extracted above and (Nandlal Wasudeo Badwaik Vs. Lata Nandlal Badwaik & Another) also came to be passed. The issue of subjecting the child to DNA Test, would also secure the interest of the husband, who cannot be mulcted with the status of a father to a child, not begotten through him and based on that, such a decision was arrived at. However, in the instant case, the plea for subjecting the child and the father to a DNA test was based only on the statement made by the petitioner and there is no other evidence to indicate that the child was not born through the petitioner herein. As such, the welfare of the child becomes the paramount consideration when compared to the interest of the husband and as such this decision may not support the case of the petitioner. 12. The learned counsel for the petitioner also relied upon a decision of this Court (T.Nagaraj Vs. Sumathi) which also holds that a conclusive prima facie case is required for making a request for DNA test under Section 112 of the Indian Evidence Act and as such this decision will also be of no help to the petitioner. 13. As discussed earlier, the applicability of Section 112 of the Indian Evidence Act for the purpose of arriving at conclusive proof of legitimacy would be available only, if it is clearly established before the concerned Court, by the parties to the marriage, that they had no access to each other. This was not the issue before the Hon’ble Apex Court when the aforesaid two decisions came to be rendered. If that be so, the facts relevant to the case would be the predominant issue for consideration. When the Hon’ble Apex Court was of the view that the Husband had come out with a prima facie case by mentioning that he had not been living with his wife and that a named person was the father of the child, it can be said that a prima facie case was made out, thereby constraining the Hon’ble Apex Court to render such a decision. On the other hand, in the present case, the petitioner based his claim, only on presumptions made through averments in this own petition and affidavit filed in support of his application filed under Section 112 of Indian Evidence Act, 1972. 14. The reliance placed on the police complaint, also contradicts the petitioner’s own statements on the period of desertion, at which point of time the respondent could have begotten the child. Furthermore, the complaint was not produced, before the trial Court. As such, I am not inclined to accept that the petitioner had presented a prima facie case before the trial Court. 15. In the Judgment of the Hon’ble Apex Court cited by the petitioner herein, reliance was also placed on another Judgment of the Hon’ble Apex Court (2010) 8 SCC 633 (Bhabani Prasad Jena Vs. Convenor Secretary, Orissa State Commission for Women and another) wherein the Hon’ble Apex Court while discussing the ratio laid down in two other Judgments reported in (1993) 3 SCC 418 (Goutam Kundu Vs. State of West Bengal) and (2003) 4 SCC 493 (Sharda Vs. Dharmpal), had held that the Court cannot order blood test as a matter of fact and such a prayer cannot be granted to have a roving enquiry. It further held that there must be a direct prima facie case and the Courts must carefully examine the consequence of ordering blood test. In both the decisions of the Hon’ble Apex Court, the Courts were conscious of the fact that an innocent child should not be bastardised and that the order for DNA Test should be sparingly exercised. 16. In the instant case the petitioner not only intends to chastise a woman but also seeks to bastardise an innocent child for the sake of obtaining divorce on the ground of infidelity. Apart from the petitioner’s own averments, there were no sufficient materials before the trial Court to come to a prima facie conclusion that the parties were not living with each other at the relevant point of time and hence it cannot be said that the trial Court had erred in rejecting the application under Section 112 of Indian Evidence Act. 17. In the result, I do not find any infirmity in the order of the Court below. Accordingly, the Civil Revision Petition is dismissed. Consequently, connected Miscellaneous Petition is closed. No costs.