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2023 DIGILAW 200 (CHH)

Kirti Dewangan, W/o. Arjun Kumar Dewangan, D/o. Shri Jagat Ram Dewangan v. Arjun Kumar Dewangan, S/o. Shri Anand Ram Dewangan

2023-04-17

GOUTAM BHADURI, SACHIN SINGH RAJPUT

body2023
JUDGMENT : Goutam Bhaduri, J. Heard. 1. This appeal is against the judgement and decree dated 29/11/2018 passed by the Family Court, Rajnandgaon in Civil Suit No.30-A/17 whereby petition filed by the husband seeking divorce under Section 13 of the Hindu Marriage Act was allowed. The wife being aggrieved by such jugement and decree is before this Court in appeal. 2. The facts of this case are that the parties were married on 16/05/2005 and thereafter according to the husband, the wife stayed with the husband for few days and went back to her parental home. It was pleaded that she appeared in an examination for shiksha karmi and after the marriage she got selected. Therefore, on the pretext that she has to discharge her job for some reason or other, she remained out of the company of the husband. Husband further alleged that whenever advise was given to her to stay alongwith husband, he was being abused and was meted with all mental and physical cruelty. The allegations are also levelled that even the family members of the husband were abused and physical assault was also not restrained. Further husband stated that the wife wanted to keep him with her at her parental place which the husband refused, therefore the issue further aggravated though he tried to keep his matrimonial life alive but eventually all thing failed and they stayed in a rented house at Rajnandgaon but she left and went back to her parental home, thereby deserted the husband without any lawful cause. Further complaint were also made by the wife to the Rajnandgaon police and even at the working place of the husband, the wife used to go and create a scene which has caused the mental cruelty to the husband, therefore on different grounds divorce was sought for. 3. The wife in her reply denied the allegations, instead the allegation of cruelty was shifted to the husband. It was further stated that after consumption of excessive liquor, the husband used to abuse and physically torture the wife and in an intoxicated state, the husband used to misbehave with the family members of the wife and after getting back to his consciousness he used to apologize. It was further stated that after consumption of excessive liquor, the husband used to abuse and physically torture the wife and in an intoxicated state, the husband used to misbehave with the family members of the wife and after getting back to his consciousness he used to apologize. The wife further contended that for the child born out of the wedlock, the husband refused to keep and maintain them but the wife discharged her duty with all due diligence as a parent as also as a wife. It was further stated that when the wife asked for certain support for the children, he became aggressive and the husband himself has left the wife in her parental home which led to isolation of the wife at the behest of the husband. Eventually the things did not improve despite the wife wanted to keep the matrimonial life alive and all efforts failed. On the basis of allegation and adverse allegations issues were framed. The husband examined himself and one Prabhat Kumar Dewangan was also examined. The wife examined herself and her sister. The learned Family Court after evaluating the evidence decreed the petition in favour of the husband on the ground of cruelty. Being aggrieved by such order, this instant appeal is by the wife. 4. Learned counsel for the appellant/wife would submit that without going into the controversy of the cruelty certain development in the relation took place as after the decree of divorce on 29/11/2018 an appeal was filed on 8/01/2019. This court has passed an order that the parties shall be governed by the statutory provisions of Section 15 of the Hindu Marriage Act, 1955 and therefore the relation of the husband and wife was not severed. It is stated subsequently, the wife and the husband started living together again and out of such relation the husband cohabitated with the wife, as a result of which, a third child was born on 30/01/2020. Thereby without prejudice the submission against cruelty of whatever nature it would have prevailed earlier was condoned. He placed his reliance in (1975) 2 SCC 326 in between DR. N.G. Dastane Vs. MRS. S. Dastane and (2010) 4 SCC 476 in between Ravi Kumar Vs. Julmidevi to submit that when by conduct of party cruelty the nature of any kind stands condoned and the decree on the ground of cruelty cannot be continued. He placed his reliance in (1975) 2 SCC 326 in between DR. N.G. Dastane Vs. MRS. S. Dastane and (2010) 4 SCC 476 in between Ravi Kumar Vs. Julmidevi to submit that when by conduct of party cruelty the nature of any kind stands condoned and the decree on the ground of cruelty cannot be continued. Accordingly, prays that the judgement and decree of divorce be set aside. 5. Per contra, learned counsel for the respondent/husband would submit that the wife forcefully entered into the house after the decree of divorce and the facts of this case would show that she is living separately since 2016 and there has been irretrievable break down of the marriage in between the parties. He would further submit that as per the statement of the wife, she lived only for 1 ½ years in between 2005 to 2016 with the husband and the fact of cruelty has been proved by the husband. He further placed reliance in (2013) AIR (SCW) 1396 to submit that there has been irretrievable break down of marriage and no purpose would be served to restore the marriage. Consequently, the judgement and decree of the learned trial court which is well merited on the facts and evidence do not call for any interference by this court. 6. We have heard the learned counsel for the parties at length. 7. The aspect which falls for consideration as to whether after the decree of divorce, the parties cohabitated and the child was born. This is being examined in the back drop of the fact, cruelty if any otherwise which was existing earlier whether would stand condoned by the act of the parties. The facts of this case would show that the decree of divorce was granted on the ground of cruelty on 29/11/2018. The wife being aggrieved by such decree, filed an appeal before this court and this court on 10/01/2019 passed an order that the relation in between the parties shall be governed by the statutory provisions of Section 15 of the Hindu Marriage Act, 1955. The wife being aggrieved by such decree, filed an appeal before this court and this court on 10/01/2019 passed an order that the relation in between the parties shall be governed by the statutory provisions of Section 15 of the Hindu Marriage Act, 1955. Section 15 of the Hindu Marriage Act purports that when a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree, or if there is such a right of appeal, the time of appeal has expired without an appeal having been presented, or an appeal having been presented is dismissed, it shall be lawful for either party to the marriage to marry again. The spirit of section 15 therefore would show that the intention of the legislature was to keep the relation alive in case an appeal is filed by either of the parties within time after decree of divorce is granted. 8. During the pendency of this appeal, a birth certificate is produced which shows that one child namely Devansh Dewangan was born on 30/01/2020. This document is filed by the wife that after the decree of divorce, the husband and wife they started living together and cohabitated and out of the relation a baby boy was on 30/01/2020. The said document was filed under Order 41 Rule 27 of CPC. In reply to such application, the husband vehemently denied the same and states that it was suspicious to ascertain the child was born out of the wedlock because the wife/appellant had gone through the treatment of termination of pregnancy on 14/08/2019 while she was carrying a pregnancy of six weeks and the document of R-1 is produced by husband. It was further stated that the child was not born out of cohabitation and the averments are false. Considering the nature of documents i.e birth certificate and the relation inter se between the parties, it was deliberated that it would be relevant to consider the issue of paternity as the instant case in hand, amongst a dispute of human relation, a birth of child is in question in between cohabitation in between the husband and wife. This need a merited attention. This need a merited attention. Therefore, in exercise of power under Order 41 and Rule 27 of CPC the discretion of the court would lean in favour of the appellant to accept such document to adduce the fact of birth of child. The birth certificate would lead to prove a child was born. This being a relevant fact cannot be left out for consideration in adjudication of interwoven issues raised. Therefore, the document of birth certificate filed is admitted for the purpose of deciding the appeal which would be marked as Ex.D-1. 9. Further to appreciate the conduct of the parties, the order sheet of this court dated 16/11/2022 would show that while such birth certificate was filed, the wife appeared and stated that the child was born out of the cohabitation while she was living in the company of the husband and she made a statement that she wanted to stay with him. The reply was filed by the respondent/husband wherein fact of cohabitation and birth of child was denied. In the background of this fact, this court on 14/12/2022 has passed the following order:- “The wife is on appeal against the judgement and decree of divorce. It is contended that during the pendency of the petition for divorce before the learned family court, both husband and wife cohabitated and were living together and out of such relation, she got pregnant and gave birth to a child on 30/01/2020 in All India Institutes of Medical Sciences, Raipur. An application has been filed under Order 41 Rule 27 of CPC by the appellant/wife to substantiate the fact that before the decree of divorce, they were living together and thereby the alleged cruelty stands condoned by husband. The respondent has filed the reply to the application under Order 41 Rule 27 CPC and alongwith the reply certain documents have been placed to substantiate that the medical termination of pregnancy was carried out of wife. Apart from that a document of discharge summary of the appellant from All India Institutes of Medical Sciences, Raipur has been placed on record. It is submitted that the documents have been obtained under the RTI which are forged. We are unable to appreciate and understand how the husband got the possession of the documents which he has filed in response to application under Order 41 Rule 27 of CPC alongwith the history of the incidents. It is submitted that the documents have been obtained under the RTI which are forged. We are unable to appreciate and understand how the husband got the possession of the documents which he has filed in response to application under Order 41 Rule 27 of CPC alongwith the history of the incidents. The wife has filed the document birth certificate of child showing date of birth as 30/01/2020. In view of the peculiar facts, as to whether during the pendency of the divorce petition before the family court whether the party cohabitated and the cruelty was condoned. We throw the question open to the parties whether they are ready for DNA test of the child and the parents. Let the counsels respond after seeking instructions from their respective clients.” 10. Thereafter, the case came up for hearing on 13/01/2023. The offer thrown to the parties for a DNA test of the child as well that of the parents. However the husband denied to go through the DNA test. 11. The Supreme Court in the matter of Sharda v. Dharampal reported in (2003) 4 SCC 493 has dealt with the issue of direction for the DNA test when the DNA test is sought by one party wherein at para 20 referred to the decision rendered by English Court in B.R.B. Versus J.B (1968) 2 All ER 1023 wherein it was held thus : “A Judge of the High Court has power to order a blood test whenever it is in the best interest of the child. The Judges can be trusted to exercise this discretion wisely. No limit-condition or bound is set up to the way in which Judges exercise their discretion. The object of the court always is to find out the truth. When scientific advances give fresh means of ascertaining it, there should not be any hesitations to use those means whenever the occasion requires.” 12. Further, in the case of Goutam Kundu v. State of W.B., AIR 1993 SC 2295 initially the Court has held that Courts in India cannot order blood test as a matter of course and whenever applications are made for such prayers in order to have roving inquiry, the prayer for blood test cannot be entertained. Further, in the case of Goutam Kundu v. State of W.B., AIR 1993 SC 2295 initially the Court has held that Courts in India cannot order blood test as a matter of course and whenever applications are made for such prayers in order to have roving inquiry, the prayer for blood test cannot be entertained. It was further held that the Court must carefully examine as to what would be the consequence of ordering the blood test; whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman and therefore no person can be compelled to give sample of blood for analysis. 13. The said finding was further considered in case of Sharda vs. Dharampal (supra) and the Court held that if the respondent avoids such medical examination on the ground that it violates his/her right to privacy or for that matter right 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. It was further held that no right to privacy specifically conferred by Article 21 of the Constitution of India and with the extensive interpretation of the phrase “personal liberty” this right has been read into Article 21, it cannot be treated as an absolute right. It was held that some limitations on this right have to be imposed and particularly where two competing interests clash. The Court further held if for arriving at the satisfaction of the court and to protect the right of a party to the lis who may otherwise be found to be incapable of protecting his own interest, the court passes an appropriate order, the question of such action being violative of Article 21 of the Constitution of India would not arise. It was further held that the court having regard to Article 21 of the Constitution of India must also see to it that the right of a person to defend himself must be adequately protected. The limitation was further imposed that court cannot order for a roving inquiry and there must have sufficient materials before it to enable it to exercise its discretion. 14. The limitation was further imposed that court cannot order for a roving inquiry and there must have sufficient materials before it to enable it to exercise its discretion. 14. Lately thereafter the Supreme Court in Narayan Dutt Tiwari v. Rohit Shekhar (2012) 12 SCC 554 at Para 40 has reproduced the observations from the Court of Appeal (Civil Division) of H. and A. (Children Paternity Tests), which reads thus : “40. Though in the light of what we have held, it is not strictly relevant, but we are unable to restrain ourselves from recording what the Court of Appeal (Civil Division) observed in H. and A. (Children) (Paternity : Blood Tests), In re- 2002 EWCA (Civ) 383 : “Over thirty years ago in his speech in S. v. McC Lord Hodson said : (AC pp. 57 F-58 A) '…...The only disadvantage to the child which is put forward as an argument against the use of a blood test, not for therapeutic purposes but to ascertain paternity, is that the child is exposed to the risk that he may lose the protection of the presumption of legitimacy. Without seeking to depreciate the value of this presumption it is, I think, fair to say that whatever may have been the position in the past the general attitude towards illegitimacy has changed and the legal incidents of being born a bastard are now almost non-existent. I need not dilate upon this, for I recognise that it is impossible to say that there is no stigma of bastardy even though it be no more than the indirect stigma of the imputation of unchastity to the mother of the child so described. On the other hand, it is difficult to conceive of cases where, assuming illegitimacy in fact, it is to the advantage of the child that this legal status of legitimacy should be preserved only perhaps to be displaced by firm evidence of illegitimacy decided later in his or her life from a blood test. The interests of justice in the abstract are best served by the ascertainment of the truth and their must be few cases where the interests of children can be shown to be best served by the suppression of truth. The interests of justice in the abstract are best served by the ascertainment of the truth and their must be few cases where the interests of children can be shown to be best served by the suppression of truth. Scientific evidence of blood groups has been available since the early part of this century and the progress of serology has been so rapid that in many cases certainty or near certainty can be reached in the ascertainment of paternity. Why should the risk be taken of a judicial decision being made which is factually wrong and may later be demonstrated to be wrong ?' Those principles have been consistently applied in subsequent cases, including H. (A Minor) (Blood Tests : Parental Rights), In re- 1997 Fam 89 : (1996) 3 WLR 506 and T. (A Child) (DNA Tests : Paternity), In re- (2001) 3 FCR 577. The Jude sought to distinguish those two authorities in his concluding paragraph, which I have cited above. It draws the distinction that in those two cases there were serious doubts as to the husband's procreative capacities. I do not consider that factual distinction begins to displace the points of principle to be drawn from the cases, first that the interests of justice are best served by the ascertainment of the truth and second that the court should be furnished with the best available science and not confined to such unsatisfactory alternatives as presumptions and inferences. It seems to me obvious that all the Lord Hodson expressed in the passage that I have cited applies with even greater force and logic in a later era. First there have been huge scientific advances with the arrival of DNA testing. Scientists no longer require blood, thus removing what for some is the unbearable process of its extraction. Of even greater importance is the abandonment of the legal concept of legitimacy achieved by the Family Law Act, 1987.” (emphasis supplied) It was further observed that paternity of any child is to be established by science and not by legal presumption or inference or by a long and acrimonious trial. 15. Subsequently, the Supreme Court in case of Dipanwita Roy v. Ronobroto Roy (2015) 1 SCC 365 has reiterated the principles laid down in case of Bhabani Prasad Jena v. Orissa State Commission for Women (2010) 8 SCC 633 , which is reproduced herein below : “14. 15. Subsequently, the Supreme Court in case of Dipanwita Roy v. Ronobroto Roy (2015) 1 SCC 365 has reiterated the principles laid down in case of Bhabani Prasad Jena v. Orissa State Commission for Women (2010) 8 SCC 633 , which is reproduced herein below : “14. A similar issue case to be adjudicated upon by this Court in Bhabani Prasad Jena v. Orissa State Commission for Women, wherein this Court held as under : 21. In a matter where paternity of a child is in issue before the court, the use of DNA test is an extremely delicate and sensitive aspect. One view is that when modern science gives the 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 the 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. 22. 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 test 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. 23. There is no conflict in the two decisions of this Court, namely, Goutam Kundu v. State of W.P. (1993) 3 SCC 418 and Sharda v. Dharampal, 2003 (4) SCC 493 . 23. There is no conflict in the two decisions of this Court, namely, Goutam Kundu v. State of W.P. (1993) 3 SCC 418 and Sharda v. Dharampal, 2003 (4) SCC 493 . In Goutam Kundu [ (1993) 3 SCC 418 ], 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 the court must carefully examine as to what would be the consequence of ordering the blood test. In Sharda [ 2003 (4) SCC 493 ] while concluding that a matrimonial court has power to order a person to 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 test can be given by the court only if a strong prima facie case is made out for such a course.” Therefore, what is the principle emerges 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, if it was eminently needed. 16. The Supreme Court in the case of Dipanwita Roy v. Ronobroto Roy (supra) has observed that if DNA test has been ordered it would be open for a party to expose themselves for such DNA test and the DNA will determine conclusively the veracity of accusation. However, any party declines to comply with the direction issued by the court, the allegation would be determined by the court concerned by drawing a presumption of nature contemplated under Section 114 of the Evidence Act in terms of illustration (h) thereof. The relevant portion of the statute 114 and illustration (h) thereof is reproduced hereunder:- “114. However, any party declines to comply with the direction issued by the court, the allegation would be determined by the court concerned by drawing a presumption of nature contemplated under Section 114 of the Evidence Act in terms of illustration (h) thereof. The relevant portion of the statute 114 and illustration (h) thereof is reproduced 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.” Illustrations The Court may presume- xxxx “(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;” 17. When one of the party refuse to go in for DNA test then adverse inference is required to be drawn. In facts of this case when the marriage continued and subsisted by filing of an appeal and according to the wife when the husband cohabitated after filing of appeal and they were living together after decree of divorce, the legitimacy of the birth of a child would be governed by Section 112 of the Indian Evidence Act. Further in absence of denial to go under DNA test, the legitimacy of the birth of the child born on 30/01/2020 would be that the child was born out of the cohabitation and the existing marriage relation between the parties. 18. Now the question which falls for consideration as to what would be the effect of such cohabitation, whether it would lead to forgiveness of a matrimonial offence and restoration of offending spouse to the same position as he or she occupied before offence was committed. The event of fact would suggest that after the decree of divorce and filing of the appeal when orders under section 15 of Hindu Marriage Act, 1955 was passed as discussed in foregoing paragraphs, a child was born and the presumption would be that it was a legitimate child out of the cohabitation and married existing relation. 19. The Supreme Court way back in (1975) 2 SCC 326 in between DR. N.G. Dastane Vs. MRS. 19. The Supreme Court way back in (1975) 2 SCC 326 in between DR. N.G. Dastane Vs. MRS. S. Dastane had occasion to interpret such situation wherein it was held that during cohabitation the spouses, uninfluenced by the conduct of the offending spouse, when it lead to a intimacy which characterises normal matrimonial relationship, the intent to forgive and restore the offending spouse to the original status may reasonably be inferred. The court at para 55 and 56 has discussed the issue which are reproduced hereunder:- “55. Condonation means forgiveness of the matrimonial offence and the restoration of offending spouse to the same position as he or she occupied before the offence was committed. To constitute condonation there must be, therefore, two things : forgiveness and restoration. The Law and Practice of Divorce and Matrimonial Causes by D. Tolstoy Sixth Ed., p. 75. The evidence of condonation in this case is, in our opinion, as strong and satisfactory as the evidence of cruelty. But that evidence does not consist in the mere fact that the spouses continued to share a common home during or for some time after the spell of cruelty. Cruelty, generally, does not consist of a single, isolated act but consists in most cases of a series of acts spread over a period of time. Law does not require that at the first appearance of cruel act, the other spouse must leave the matrimonial home lest the continued cohabitation be construed as condonation. Such a construction will hinder reconciliation and thereby frustrate the benign purpose of marriage laws. 56. The evidence of condonation consists here in the fact that the spouses led a normal sexual life despite the respondent's acts of cruelty. This is not a case where the spouses, after separation, indulged in a stray act of sexual intercourse, in which case the necessary intent to forgive and restore may be said to be lacking. Such stray acts may bear more than one explanation. But if during cohabitation the spouses, uninfluenced by the conduct of the offending spouse, lead a life of intimacy which characterises normal matrimonial relationship, the intent to forgive and restore the offending spouse to the original status may reasonably be inferred. Such stray acts may bear more than one explanation. But if during cohabitation the spouses, uninfluenced by the conduct of the offending spouse, lead a life of intimacy which characterises normal matrimonial relationship, the intent to forgive and restore the offending spouse to the original status may reasonably be inferred. There is then no scope for imagining that the conception of the child could be the result of a single act of sexual intercourse and that such an act could be a stark animal act unaccompanied by the nobler graces of marital life. One might then as well imagine that the sexual act was undertaken just in order to kill boredom or even in a spirit of revenge. Such speculation is impermissible. Sex plays an important role in marital life and cannot be separated from other factors which lend to matrimony a sense of fruition and fulfilment. Therefore, evidence showing that the spouses led a normal sexual life even after a series of acts of cruelty by one spouse is proof that the other spouse condoned that cruelty. Intercourse, of course, is not a necessary ingredient of condonation because there may be evidence otherwise to show that the offending spouse has been forgiven and has been received back into the position previously occupied in the home. But intercourse in circumstances as obtain here would raise a strong inference of condonation with its dual requirement, forgiveness and restoration. That inference stands uncontradicted, the appellant not having explained the circumstances in which he came to lead and live a normal sexual life with the respondent, even after a series of acts of cruelty on her part.” 20. Applying the aforesaid analogy in this case to the conduct of the parties, there is no iota of doubt that out of the relation cohabitation a child was born which would amount to condone the cruelty which was existing prior to it i.e. filing of appeal. 21. In a result, we allow the appeal and judgement and decree dated 29/11/2018 passed by the Family Court, Rajnandgaon in Civil Suit No. 30-A/17 is set aside.