Research › Search › Judgment

Madras High Court · body

2019 DIGILAW 2633 (MAD)

Thamarai Selvi v. Govindaraj

2019-09-27

N.ANAND VENKATESH

body2019
ORDER : PRAYER: Civil Revision Petition filed under Article 227 of the Constitution of India, praying this Court to set aside the order made in I.A.No.113 of 2011 against C.M.A.No.6 of 2011, dated 9.1.2012, on the file of the Fast Track Court, Pudukkottai. 1. This Civil Revision Petition has been filed challenging the order passed by the Court below allowing the application filed under Section 45 of the Indian Evidence Act to send the Petitioner, respondent and the child to under go DNA Test to ascertain the paternity of the child. 2. The respondent filed H.M.O.P.No.188 of 2007 before Sub-Court, Pudukkottai seeking for divorce on the ground of cruelty. This Petition came to be dismissed by judgment and decree, dated 1.3.2010. Aggrieved by the same, the respondent filed an appeal in C.M.A.No.6 of 2011 before the Additional District and Sessions Judge, Pudukkottai (FTC), in which, during the pendency of the appeal, the respondent filed an application in I.A.No.113 of 2011 to send the Petitioner, respondent and the child to undergo DNA Test in order to ascertain the paternity of the child. 3. The Court below has allowed this Petition on the ground that the Petitioner lived with the respondent only for three months (three days as per Petition).Therefore, the Court below came to a conclusion that the Petitioner could have lived with the respondent only till December 2005. The child was born on 13.12.2006. There is no material to show that there was contact between the Petitioner and the respondent after December 2005 and therefore, the DNA test will have to be taken in order to ascertain the paternity of the child. 4. The learned counsel for the Petitioner submitted that the Trial Court had disbelieved the contention raised by the respondent that the child was not born to him, based on the evidence and that there cannot be a reference by the appellate Court by compelling the Petitioner to undergo DNA test along with the child. The learned counsel further submitted that the subsistence of a marriage is a conclusive proof under Section 112 of the Indian Evidence Act that the child was born to the Petitioner and respondent and this conclusive proof cannot be re-opened by allowing for a DNA test. 5. The learned counsel further submitted that the subsistence of a marriage is a conclusive proof under Section 112 of the Indian Evidence Act that the child was born to the Petitioner and respondent and this conclusive proof cannot be re-opened by allowing for a DNA test. 5. The learned counsel for the respondent submitted that it is the specific case of the respondent that the Petitioner had an illegal intimacy with another person and the child was not born for the Petitioner and respondent. Therefore, it is necessary for all the parties to undergo DNA Test in order to ascertain the paternity of the child. The learned counsel in order to substantiate his arguments relied upon the decision of the Honourable Supreme Court in Nandlal Wasudeo Badwaik .vs.lata Nandlal Badwaik and another reported in AIR 2014 Supreme Court 932. 6. This Court has carefully considered the submissions made on either side and perused the materials available on record. 7. Section 112 of the Indian Evidence Act provides for a conclusive proof of legitimacy of the child. It requires to be established by the parties that they had no access to each other at any time whereby the wife could have begotten a child. Hence the Court must be thoroughly satisfied that the parties to the marriage did not have any access to each other during the crucial period of 280 days, as provided under Section 112 of the Indian Evidence Act. Unless this important fact is satisfied before the Court, the parties cannot be subjected to DNA test. 8. It will be relevant to take note of the judgement cited by the learned counsel for the respondent in this regard. The Honourable Supreme Court in Nandlal Wasudeo Badwaik .vs.lata Nandlal Badwaik and another reported in AIR 2014 Supreme Court 932, has held as follows: ''17.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. 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. 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 n scientific advancement accepted by the world community to be correct, the latter must prevail over the former. 18. 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.'' 9. This Court also had an occasion to deal with a similar issue in which the judgment of the Honourable Supreme Court cited supra was taken into consideration. In the judgment in Selvaraj .vs. Dhatchayani reported in 2019-1-LW 528, this Court has held as follows: ''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 Honourable 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. This was not the issue before the Honourable 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 Honourable 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 constrining the Honourable 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 judgement of the Honourable Apex Court cited by the Petitioner herein, reliance was also placed on another judgement of the Honourable Apex Court 2010-5-LW 577 = 2010 8SCC 633(Bhabani Prasad Jena .vs. Convenor Secretary, Orissa State Commission for Women and another) wherein the Honourable Apex Court while discussing the ratio laid down in two other judgements reported in 1993 3 SCC 418 (Goutam Kundu .vs. State of West Bengal) and 2003-2-LW 657 = 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 Honourable Apex Court, the Courts were conscious of the fact that an innocent child should not be bastardized and that the order for DNA Test should be sparingly exercised.'' 10. 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 Honourable Apex Court, the Courts were conscious of the fact that an innocent child should not be bastardized and that the order for DNA Test should be sparingly exercised.'' 10. In the present case, the respondent has taken a very specific stand even in the H.M.O.P Petition that the Petitioner lived with him only for three days and there was no cohabitation even during those three days and thereafter, the Petitioner had left the matrimonial home. The respondent has also alleged that after leaving the matrimonial home, the Petitioner became pregnant and she has given birth to a child on 13.12.2006. 11. The Court below has held that in order to take umbrage under Section 112 of the Indian Evidence Act, to raise a plea of conclusive proof, it must be shown that there was absolutely no access for the parties during the crucial period of 280 days, after they got separated. The Petitioner has raised a contention that the marriage is subsisting and therefore, the presumption of conclusive proof will apply to her and she cannot be forced to undergo DNA test. The marriage may be subsisting but the question is as to whether the parties had access to each other after they got separated. The Petitioner has taken a further stand that the respondent used to visit the house of the Petitioner and had sexual intercourse and made her pregnant and thereby the child was born. This stand has been taken by the Petitioner even in the counter filed in the HMOP. The specific case of the respondent is that she lived with the respondent only upto December 2005.Thereafter, there was no contact between the Petitioner and the respondent. 12. The child in this case was born on 13.12.2006 and if this is to happen, the Petitioner should have conceived during March 2006. There is absolutely nothing to show that there was access between the parties during January and February 2006. The only ground that has been raised by the Petitioner is that the respondent came to her house and had sexual intercourse. The Court below in order to give a final conclusion with regard to this dispute, wanted to send the parties for a DNA test. The only ground that has been raised by the Petitioner is that the respondent came to her house and had sexual intercourse. The Court below in order to give a final conclusion with regard to this dispute, wanted to send the parties for a DNA test. Report in the DNA test will conclusively prove the paternity of the child. It is the main issue that has to be decided even in the divorce proceedings. The Court below has said that there is no compulsion for the Petitioner to undergo DNA test and if she refused to go for the DNA test, the Court below has held that an adverse inference can be drawn against her. 13. It is important to take note of the judgment of the Honourable Supreme Court which has categorically held that the Court must be furnished with the best available evidence and it should not be made to decide the case based on presumption. When science is providing for an answer, it should be made use of by the Court, when there is a conflict between the conclusive proof envisaged under law and the proof based on scientific advancement. 14. This Court does not find any irregularity or infirmity in the order passed by the Court below and the Court below has given cogent reasons for allowing the Petition. It is left open to the Petitioner to subject herself to the DNA test or not to go for the DNA test. The Petitioner cannot be compelled and at the same time, if she does not undergo the DNA test, an adverse inference can be drawn by the trial Court. 15. In the result, the fair and final order made in I.A.No.113 of 2011 against C.M.A.No.6 of 2011, dated 9.1.2012, on the file of the Fast Track Court, Pudukkottai, is hereby confirmed and the Civil Revision Petition is dismissed. The Court below is directed to dispose of the appeal in C.M.A.No.6 of 2011 within a period of two months from the date of receipt of a copy of this order. Consequently, connected Miscellaneous Petition is dismissed.