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2019 DIGILAW 249 (ORI)

Subas Chandra Nayak v. Meena Kumari Sahoo

2019-03-27

A.K.RATH

body2019
JUDGMENT : A.K. Rath, J. This petition challenges the order dated 25.11.2017, passed by the learned Judge, Family Court, Jajpur in C.P. No.476 of 2011, whereby and whereunder, learned trial court has rejected the application of the plaintiff-petitioner to conduct the DNA test of the third and fourth children of the opposite party no.1-wife. 2. Plaintiff-petitioner filed a petition u/s.13 of the Hindu Marriage Act, 1955, for divorce against the defendant no.1- opposite party no.1-wife on the ground of cruelty and adultery. The opposite party no.1 entered contest and filed a written statement denying the assertions made in the petition. While matter stood thus, petitioner filed an application u/s.151 CPC to conduct the DNA test of the third and fourth children of opposite party no.1. It is stated that opposite party no.1 left the matrimonial home after the second child was born. She did not return to the matrimonial house. She developed illicit relationship with opposite party no.2. The third and fourth children are born out of the said illicit relationship. Opposite party no.1 filed objection denying the assertions made in the petition. It is stated that the petitioner used to visit her house. Out of their wed-lock, the third and fourth children are born. The petition was rejected on 20.08.2003. The order has attained finality. After lapse of 14 years, the petitioner filed another petition seeking the same relief. Learned trial court rejected the same. 3. Heard Mr. Kabir Kumar Jena, learned counsel for the petitioner and Mr. Dinesh Kumar Patra, learned counsel for the opposite party no.1 4. Mr. Jena, learned counsel for the petitioner submits that opposite party no.1 left the matrimonial home long since. She had developed illicit relationship with opposite party no.2. Thereafter, third and fourth children are born. The petitioner filed an application to conduct DNA test of the third and fourth children. The same is essential for just decision of the case. Learned trial court is not justified in rejecting the application. 5. Conversely, Mr. Patra, learned counsel for the opposite party no.1-wife submits that the allegations made in the petition are blatant lies. The petitioner used to visit the house of opposite party no.1.Out of their wedlock, the third and fourth children are born. He further submits that earlier order of rejection has attained finality. DNA test cannot be conducted as a matter of right. The petitioner used to visit the house of opposite party no.1.Out of their wedlock, the third and fourth children are born. He further submits that earlier order of rejection has attained finality. DNA test cannot be conducted as a matter of right. To buttress the submission, he places reliance on the decision of this Court in the case of Ranjan Kumar Behera @ Naik Vrs. Domburudhar Behera & Ors., 2017 (I) ILR -CUT-342. 6. In Bhabani Prasad Jena Vrs. Convenor Secretary, Orissa State Commission for Women & anr., AIR 2010 SC 2851 , the apex Court held : "13. In a matter where paternity of a child is in issue before the court, the use of DNA is an extremely delicate and sensitive aspect. One view is that when modern science gives means of ascertaining the paternity of a child, there should not be any hesitation to use those means whenever the occasion requires. The other view is that the court must be reluctant in use of such scientific advances and tools which result in invasion of right to privacy of an individual and may not only be prejudicial to the rights of the parties but may have devastating effect on the child. Sometimes the result of such scientific test may bastardise an innocent child even though his mother and her spouse were living together during the time of conception. In our view, when there is apparent conflict between the right to privacy of a person not to submit himself forcibly to medical examination and duty of the court to reach the truth, the court must exercise its discretion only after balancing the interests of the parties and on due consideration whether for a just decision in the matter, DNA is eminently needed. DNA in a matter relating to paternity of a child should not be directed by the court as a matter of course or in a routine manner, whenever such a request is made. The court has to consider diverse aspects including presumption under Section 112 of the Evidence Act; pros and cons of such order and the test of 'eminent need' whether it is not possible for the court to reach the truth without use of such test. 14. The court has to consider diverse aspects including presumption under Section 112 of the Evidence Act; pros and cons of such order and the test of 'eminent need' whether it is not possible for the court to reach the truth without use of such test. 14. There is no conflict in the two decisions of this Court, namely, Goutam Kundu ( AIR 1993 SC 2295 : AIR SCW 2325) and Sharda ( AIR 2003 SC 3450 : 2003 AIR SCW 1950). In Goutam Kundu, it has been laid down that courts in India cannot order blood test as a matter of course and such prayers cannot be granted to have roving inquiry; there must be strong prima facie case and court must carefully examine as to what would be the consequence of ordering the blood test. In the case of Sharda while concluding that a matrimonial court has power to order a person too undergo a medical test, it was reiterated that the court should exercise such a power if the applicant has a strong prima facie case and there is sufficient material before the court. Obviously, therefore, any order for DNA can be given by the court only if a strong prima facie case is made out for such a course. In so far as the present case is concerned, we have already held that the State Commission has no authority, competence or power to order DNA. Looking to the nature of proceedings with which the High Court was concerned, it has to be held that High Court exceeded its jurisdiction in passing the impugned order. Strangely, the High Court over looked a very material aspect that the matrimonial dispute between the parties is already pending in the court of competent jurisdiction and all aspects concerning matrimonial dispute raised by the parties in that case shall be adjudicated and determined by that Court. Should an issue arise before the matrimonial court concerning the paternity of the child, obviously that court will be competent to pass an appropriate order at the relevant time in accordance with law. In any view of the matter, it is not possible to sustain the order passed by the High Court." 7. In Dipanwita Roy Vs. Should an issue arise before the matrimonial court concerning the paternity of the child, obviously that court will be competent to pass an appropriate order at the relevant time in accordance with law. In any view of the matter, it is not possible to sustain the order passed by the High Court." 7. In Dipanwita Roy Vs. Ronobroto Roy, AIR 2015 SC 418 , the apex Court held that depending on the facts and circumstances of the case, it would be permissible for a Court to direct the holding of a DNA examination, to determine the veracity of the allegations, which constitute one of the grounds, on which the concerned party would either succeed or lose. There can be no dispute, that if the direction to hold such a test can be avoided, it should be so avoided. The legitimacy of a child should not be put to peril. 8. The apex Court in no uncertain terms held that when there is apparent conflict between the right to privacy of a person not to submit himself forcibly to medical examination and duty of the court to reach the truth, the court must exercise its discretion only after balancing the interests of the parties and on due consideration whether for a just decision in the matter, DNA is eminently needed. DNA test in a matter relating to paternity of a child should not be directed by the court as a matter of course or in a routine manner, whenever such a request is made. The court has to consider diverse aspects including presumption under Section 112 of the Evidence Act; pros and cons of such order and the test of eminent need whether it is not possible for the court to reach the truth without use of such test. There must be strong prima facie case and court must carefully examine as to what would be the consequence of ordering the blood test. Any order for DNA can be given by the court only if a strong prima facie case is made out for such a course. Depending on the facts and circumstances of the case, it would be permissible for a Court to direct the holding of a DNA examination, to determine the veracity of the allegations, which constitute one of the grounds, on which the concerned party would either succeed or lose. Depending on the facts and circumstances of the case, it would be permissible for a Court to direct the holding of a DNA examination, to determine the veracity of the allegations, which constitute one of the grounds, on which the concerned party would either succeed or lose. If the direction to hold such a test can be avoided, it should be so avoided. 9. In Ranjan Kumar Roy, this court referred to the decisions cited supra. 10. Admittedly, the marriage between the petitioner and opposite party no.1 was solemnized as per Hindu rites and customs. After marriage, they led a peaceful marital life for some time. Since dissensions cropped up between the parties, petitioner filed an application u/s.13 of the Hindu Marriage Act for divorce. The petitioner filed an application u/s.13 of the Hindu Marriage Act to conduct DNA test of the third and fourth children on the ground that she left the matrimonial home since long. She had developed illicit relationship with opposite party no.2. Thereafter, the third and fourth children were born. The same has been stoutly denied by opposite party no.1. She asserted that petitioner used to visit her house. Out of their wedlock, third and fourth children are born. Petitioner has not made a strong prima facie case. In a matter of paternity of a child, DNA test should not be directed to be conducted as a matter of course or in a routine manner, whenever such a request is made. There is no plea or evidence on record that before birth of third and fourth children, the petitioner at any point of time had any access to the opposite party no.1. Further the earlier order has attained finality. The second petition seeking the same relief is an abuse of process of Court. Thus DNA test is not eminently needed. 11. The dispute pertains to husband and wife. Why a person would feel of being bastardized by a Court verdict, disentitling him from inheriting the properties of his father? Why the children shall suffer the ignominy? 12. "A million million spermatozoa All of them alive : Out of their cataclysm but one poor Noah Dare hope to survive. And among that billion minus one Might have chanced to be Shakespeare, another Newton, a new Donne But the one was me" Thus, said Aldous Huxley in a state of desperation. 13. 12. "A million million spermatozoa All of them alive : Out of their cataclysm but one poor Noah Dare hope to survive. And among that billion minus one Might have chanced to be Shakespeare, another Newton, a new Donne But the one was me" Thus, said Aldous Huxley in a state of desperation. 13. The impugned order does not suffer from any illegality or infirmity, warranting interference of this Court under Article 227 of the Constitution. The petition is dismissed. No costs.