Research › Search › Judgment

Madras High Court · body

2019 DIGILAW 36 (MAD)

G. Vasanthi v. M. Muneeshwaran

2019-01-02

G.R.SWAMINATHAN

body2019
JUDGMENT : (Prayer: Civil Revision Petition is filed under Article 227 of the Constitution of India, praying to set aside the fair and decretal order dated 26.04.2018 in I.A.No.5 of 2017 in H.M.O.P. No.138/2015, on file of the Principal Sub Court, Dindigul.) 1. The petitioner and the respondent got married to each other on 12.03.2014 at Batlagundu. A girl child was born to the petitioner on 22.01.2015. Complaining that the petitioner had treated him with cruelty, the respondent filed H.M.O.P No.138 of 2015, on the file of the Principal Sub Court, Dindigul, seeking dissolution of his marriage with the petitioner. The respondent filed I.A.No.5 of 2017, for subjecting the petitioner herein to undergo DNA test for testing the paternity of the child. According to the averments set out in the petition, the petitioner herein herself had denied that the respondent was the father of the child born to her. The Court below allowed the said Interlocutory Application vide order dated 26.04.2018. Questioning the same, this Civil Revision Petition has been filed. 2. Heard the learned Counsel appearing for the revision petitioner. 3. Since the revision petitioner had anchored her case on the strength of the decision of the Kerala High Court, rendered in Mathew Vs. Annamma Mathew on 17.11.1993 and that of the Hon'ble Supreme Court rendered in Goutam Kundu Vs. State of West Bengal, reported in AIR (1993) SC 2295, this Court appointed Thiru. Srinivasa Raghavan as amicus curiae, to place before this Court, the subsequent march of law. The amicus curiae filed detailed written notes, exhaustively setting out the latest position. I place on record my gratitude to the learned amicus curiae. 4. The contention of the revision petitioner is that the Court below could not have directed the revision petitioner/wife to undergo DNA test, since the respondent/husband has himself accepted that he had physical contact with the revision petitioner herein on two occasions. The respondent husband had taken part in the Valaikappu function and only after the birth of the child, he developed suspicion. 5. The learned Counsel for the revision petitioner pointed out that the H.M.O.P. had been filed only under Section 13(1)(i)(a). The respondent had not alleged any adulterous conduct on the part of the revision petitioner. The respondent husband had taken part in the Valaikappu function and only after the birth of the child, he developed suspicion. 5. The learned Counsel for the revision petitioner pointed out that the H.M.O.P. had been filed only under Section 13(1)(i)(a). The respondent had not alleged any adulterous conduct on the part of the revision petitioner. The petitioner's Counsel also placed considerable reliance on Section 112 of the Indian Evidence Act, 1872 and contended that since access had been admitted, the impugned order directing the petitioner to undergo DNA test will have to be set aside. 6. The initial contention of the revision petitioner's Counsel was that directing the wife to undergo DNA test when there is no pleading of non-access would run counter to Section 112 of the Indian Evidence Act and also be violative of the fundamental right of the wife guaranteed under Article 21 of the Constitution of India. 7. The contention with regard to violation of fundamental right cannot hold good in view of the decision of the Hon'ble Supreme Court in Sharda Vs. Dharmpal, reported in (2003) 4 SCC 493 . The Hon'ble Supreme Court observed that where divorce is sought on grounds such as impotency, schizophrenia etc., normally without there being medical examination, it would be difficult to arrive at a conclusion as to whether the allegation made by one spouse against the other spouse seeking divorce on such a ground is correct or not. In order to substantiate such allegation, the petitioner would always insist on medical examination. If the respondent avoids such medical examination on the ground that it violates his/her right to privacy or for that matter to personal liberty as enshrined under Article 21 of the Constitution of India, then it may, in most of such cases become impossible to arrive at a conclusion. If the Court passes an appropriate order for medical examination, the question of such action being violative of Article 21 of the Constitution of India would not arise. The conclusions of the three Judges Bench was summed up as follows: “81. To sum up, our conclusions are: 1. A matrimonial court has the power to order a person to undergo medical test. 2. Passing of such an order by the court would not be in violation of the right to personal liberty under Article 21 of the Indian Constitution. 3. To sum up, our conclusions are: 1. A matrimonial court has the power to order a person to undergo medical test. 2. Passing of such an order by the court would not be in violation of the right to personal liberty under Article 21 of the Indian Constitution. 3. However, the court should exercise such a power if the applicant has a strong prima facie case and there is sufficient material before the court. If despite the order of the court, the respondent refuses to submit himself to medical examination, the court will be entitled to draw an adverse inference against him.” 8. The nine Judges Bench of the Hon'ble Supreme Court in K.S.Puttaswamy Vs. Union of India, reported in (2017) 10 SCC 1 , unanimously held that right to privacy is a fundamental right, but left the conclusions set out in para 81 in Sharda Vs. Dharmpal, untouched. Therefore, the contention raised with reference to Article 21 of the Constitution of India must necessarily fail. 9. Section 112 of the Indian Evidence Act, reads as under: “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 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 parties to the marriage had no access to each other at any time when he could have been begotten.” 10. Conclusive proof has been defined as under: “Conclusive Proof: When one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it.” 11. In this case, the respondent herein/husband did not plead non-access. On the other hand, he admitted that he had physical contact with his wife/revision petitioner herein on two occasions. Therefore, the contention of the revision petitioner is that the impugned direction to the wife for undergoing DNA test was not warranted. His pointed contention is that if the results of the DNA test deny the paternity of the respondent herein, that would result in bastardizing the child. 12. The issue on hand is no longer res integra. Therefore, the contention of the revision petitioner is that the impugned direction to the wife for undergoing DNA test was not warranted. His pointed contention is that if the results of the DNA test deny the paternity of the respondent herein, that would result in bastardizing the child. 12. The issue on hand is no longer res integra. The Hon'ble Supreme Court, in the decision reported in 2014 (5) CTC 680 [Nandlal Wasudeo Badwaik Vs. Lata Nandlal Badwaik & another] has held as follows: “14. Now we have to consider as to whether the DNA test would be sufficient to hold that the appellant is not the biological father of respondent no. 2, in the face of what has been provided under Section 112 of the Evidence Act, which 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.” 15. From a plain reading of the aforesaid, it is evident that a child born during the continuance of a valid marriage shall be a conclusive proof that the child is a legitimate child of the man to whom the lady giving birth is married. The provision makes the legitimacy of the child to be a conclusive proof, if the conditions aforesaid are satisfied. It can be denied only if it is shown that the parties to the marriage have no access to each other at any time when the child could have been begotten. Here, in the present case, the wife had pleaded that the husband had access to her and, in fact, the child was born in the said wedlock, but the husband had specifically pleaded that after his wife left the matrimonial home, she did not return and thereafter, he had no access to her. The wife has admitted that she had left the matrimonial home but again joined her husband. The wife has admitted that she had left the matrimonial home but again joined her husband. Unfortunately, none of the courts below have given any finding with regard to this plea of the husband that he had or had not any access to his wife at the time when the child could have been begotten. 16. As stated earlier, the DNA test is an accurate test and on that basis it is clear that the appellant is not the biological father of the girl-child. However, at the same time, the condition precedent for invocation of Section 112 of the Evidence Act has been established and no finding with regard to the plea of the husband that he had no access to his wife at the time when the child could have been begotten has been recorded. Admittedly, the child has been born during the continuance of a valid marriage. Therefore, the provisions of Section 112 of the Evidence Act conclusively prove that respondent No. 2 is the daughter of the appellant. At the same time, the DNA test reports, based on scientific analysis, in no uncertain terms suggest that the appellant is not the biological father. In such circumstance, which would give way to the other is a complex question posed before us. 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. 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. 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. 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. 19. 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.” 13. The said decision was followed in the subsequent decision of the Hon'ble Supreme Court reported in 2014 (6) CTC 791 [Dipanwita Roy Vs. Ronobroto Roy]. Para 12 of the said decision reads as under: “12. We would, however, while upholding 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 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. Section 114 also illustration (h), referred to above, are being extracted hereunder: “114. Court may presume existence of certain facts – The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustration (h) - That if a man refuses to answer a question which he is not compelled to answer by law, the answer, if given, would be unfavourable to him.” This course has been adopted to preserve the right of individual privacy to the extent possible. Of course, without sacrificing the cause of justice. By adopting the above course, the issue of infidelity alone would be determined, without expressly disturbing the presumption contemplated under Section 112 the Indian Evidence Act. Even though, as already stated above, undoubtedly the issue of legitimacy would also be incidentally involved.” 14. As pointed out by the learned amicus curiae, the Law Commission of India under the Chairmanship of Justice M.Jagannadha Rao (an eminent Judge of great scholarship) proposed the following amendment to Section 112 of the Indian Evidence Act. “112. Even though, as already stated above, undoubtedly the issue of legitimacy would also be incidentally involved.” 14. As pointed out by the learned amicus curiae, the Law Commission of India under the Chairmanship of Justice M.Jagannadha Rao (an eminent Judge of great scholarship) proposed the following amendment to Section 112 of the Indian Evidence Act. “112. The fact that any child was born during the continuance of a valid marriage between its mother and any man, or within two hundred and eighty days, (i) after the marriage was declared nullity, the mother remaining unmarried, or (ii) after the marriage was avoided by dissolution, the mother remaining unmarried, shall be conclusive proof that such person is the legitimate child of that man, unless (a) it can be shown that the parties to the marriage had no access to each other at any time when the child could have been begotten; or (b) it is conclusively established, by tests conducted at the expense of that man, namely, (i) medical tests, that, at the relevant time, that man was impotent or sterile, and is not the father of the child; or (ii) blood tests conducted with the consent of that man and his wife and in the case of the child, by permission of the Court, that that man is not the father of the child; or (iii) DNA genetic printing tests conducted with the consent of that man and in the case of the child, by permission of the Court, that that man is not the father of the child; and Provided that the Court is satisfied that the test under sub-clause (i) or sub-clause (ii) or sub-clause (iii) has been conducted in a scientific manner according to accepted procedures, and in the case of each of these sub-clauses (i) or (ii) or (iii) of clause (b), at least two tests have been conducted, and they resulted in an identical verdict that that man is not the father of the child. Provided further that where that man refuses to undergo the tests under sub clauses (i) or (ii) or (iii), he shall, without prejudice to the provisions of clause (a), be deemed to have waived his defence to any claim of paternity made against him. Provided further that where that man refuses to undergo the tests under sub clauses (i) or (ii) or (iii), he shall, without prejudice to the provisions of clause (a), be deemed to have waived his defence to any claim of paternity made against him. Explanation I: For the purpose of sub clause (iii) of clause (b), the words ‘DNA genetic printing tests’ shall mean the tests conducted by way of samples relatable to the husband and child and the words “DNA” mean ‘Deoxyribo-Nucleic Acid’. Explanation II: For the purposes of this section, the words ‘valid marriage’ shall mean a void marriage till it is declared nullity or a voidable marriage till it is avoided by dissolution, where, by any enactment for the time being in force, it is provided that the children of such marriages which are declared nullity or avoided by dissolution, shall nevertheless be legitimate.” 15. But unfortunately, after referring the matter to the advisory committee of Parliament, the matter is yet to see the light of the day. If the recommendation of the Law Commission is accepted, the presumption under Section 112 will become a rebuttable presumption and not a conclusive proof under Section 4 of the Indian Evidence Act. In such an event, evidence will not be confined to the plea of non-access but also include any other proof including the proof obtained from scientific test or medical examination. 16. In Mukesh Vs. State (NCT of Delhi) reported in (2018) 8 SCC 149 , the Hon'ble Supreme Court had authoritatively upheld the infallible nature of the DNA test. 17. The case on hand will have to be looked at from another angle. The learned trial Judge in paragraph No.8 of the impugned order specifically noted that notwithstanding her opposition in the counter, the wife had agreed to undergo the DNA test as it would establish her chastity as a true wife. It is thus clear from the impugned order that the revision petitioner had given her consent for undergoing the DNA test. But, in the grounds, the Counsel for the revision petitioner had pleaded that there is no evidence on record to show that the petitioner gave her consent to the DNA test, as observed in the impugned order. Such a contention cannot be countenanced. The Hon'ble Supreme Court in Y.Sleebachen and others Vs. But, in the grounds, the Counsel for the revision petitioner had pleaded that there is no evidence on record to show that the petitioner gave her consent to the DNA test, as observed in the impugned order. Such a contention cannot be countenanced. The Hon'ble Supreme Court in Y.Sleebachen and others Vs. State of Tamil Nadu, reported in (2015) 5 SCC 747 , quoted the following discussion in the judgment in the State of Maharashtra Vs. Ramdas Shrinivas Nayak and another reported in (1982) 2 SCC 463 : “4. When we drew the attention of the learned Attorney General to the concession made before the High Court, Shri A.K. Sen, who appeared for the State of Maharashtra before the High Court and led the arguments for the respondents there and who appeared for Shri Antulay before us intervened and protested that he never made any such concession and invited us to peruse the written submissions made by him in the High Court. We are afraid that we cannot launch into an inquiry as to what transpired in the High Court. It is simply not done. Public Policy bars us. Judicial decorum restrains us. Matters of judicial record are unquestionable. They are not open to doubt. Judges cannot be dragged into the arena. "Judgments cannot be treated as mere counters in the game of litigation". Per Lord Atkinson in Somasundaran v. Subramanian We are bound to accept the statement of the Judges recorded in their judgment, as to what transpired in court. We cannot allow the statement of the judges to be contradicted by statements at the Bar or by affidavit and other evidence. If the judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject. The principle is well settled that statements of fact as to what transpired at the hearing, recorded in the judgment of the court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. The principle is well settled that statements of fact as to what transpired at the hearing, recorded in the judgment of the court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is' incumbent, upon the party, while the matter is still fresh in the minds of the judges, to call attention of the very judges who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error. Per Lord Buckmaster in Madhusudan v. Chanderwati That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. Of course a party may resile and an Appellate Court may permit him in rare and appropriate cases to resile from a concession on the ground that the concession was made on a wrong appreciation of the law and had led to gross injustice; but, he may not call in question the very fact of making the concession as recorded in the judgment.” 18. In the present case, the revision petitioner/wife did not file any application before the learned trial Judge, disputing the observation of the trial Judge that she had consented to undergo the DNA test. Therefore, I have to necessarily hold that this Civil Revision Petition itself is not maintainable. 19. In the result, the order impugned in the Civil Revision Petition is sustained. But, it is always open to the revision petitioner/wife to disregard the order passed by the Court below, requiring the holding of the DNA test. In that event, the allegation against her would be determined by the concerned Court by drawing presumption of the nature contemplated in Section 114 of the Indian Evidence Act. In other words, the Court below will be justified in drawing adverse inference against the revision petitioner. But then, the issue of infidelity alone would be determined. The presumption enshrined in Section 112 of the Indian Evidence Act, will not in any way be disturbed. Neither the result of the DNA test nor adverse inference can lead to dislodging the conclusive proof contemplated by Section 112 of the Evidence Act, so long as it remains in the current unamended form. The presumption enshrined in Section 112 of the Indian Evidence Act, will not in any way be disturbed. Neither the result of the DNA test nor adverse inference can lead to dislodging the conclusive proof contemplated by Section 112 of the Evidence Act, so long as it remains in the current unamended form. The rights of the child shall remain insulated and protected. While the character of the mother may be exposed, the status of the child shall remain unsullied in law. If the results of the DNA test deny the paternity of the child, it shall not be published. Just as identity of a rape-victim and that of a juvenile in conflict with law is concealed, similar protective measures shall be taken in such cases. 20. With the above observations, the Civil Revision Petition is dismissed. No costs. Consequently, the connected miscellaneous petition is closed.