Research › Search › Judgment

Chhattisgarh High Court · body

2024 DIGILAW 621 (CHH)

Abhishek Sarkar S/o Harigopal Sarkar v. Dipika Mandal W/o Abhishek Sarkar

2024-08-30

DEEPAK KUMAR TIWARI

body2024
ORDER : Deepak Kumar Tiwari, J. 1. This Petition has been filed for the following reliefs:- “1 That, this Hon’ble Court may kindly be pleased to set aside the order dated 09.07.2024 passed by the Judge, Family Court, Balod (CG) in Misc. Criminal Case No.97/2023 in the case of “Smt Dipika Mandal & Anr vs. Abhishek Sarkar” and the application filed by the husband may kindly be allowed throughout cost. 2. That, this Hon’ble Court may kindly be pleased to grant any other relief, which it deems fit and proper. 2. Facts of the case in brief are that the Petitioner and Respondent are husband and wife whose marriage was solemnized on 24.01.2022 at Dallirajhara, District Balod. The wife along with her minor son has filed an application for grant of maintenance under Section 125 CrPC before the trial Court and in the said proceeding, the husband has also filed an application for conducting DNA test while denying the paternity of the child, which was dismissed by the order impugned. Hence this Petition. 3. Shri Tiwari submits that the learned Family Court has wrongly dismissed the application filed by the husband for conducting DNA test. He further submits that in the reply filed by the husband, at para-13, a specific defence has been raised that the relationship was made with protection, therefore, when the paternity of the minor son is doubtful, the application ought to have been allowed. He placed reliance on Sharda vs. Dharmpal reported in (2003) 4 SCC 493 and referred to para-81, which reads as under:- “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. 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. 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.” He further placed reliance on Amrit Singh vs. State of Punjab reported in AIR 2007 SC 132 wherein, the Appellant was prosecuted for offence of rape and murder and during investigation, on an application filed by the investigating officer for obtaining the sample of hair, the Appellant refused to do so without assigning any reason and therefore, an adverse inference was drawn against the said Appellant/accused. He lastly submits that in the aforesaid backdrop, the order impugned is not sustainable and prays to set aside the same and allow the said application. 4. Heard learned Counsel for the Petitioner, perused the order impugned as also the necessary documents annexed herewith carefully. 5. Recently, in the matter of Aparna Ajinkya Firodia vs. Ajinkya Arun Firodia reported in 2023 SCC OnLIne SC 161, while dealing with the application for DNA test of children born during the subsistence of a valid marriage, it was held that the said test can be directed only when there is sufficient prima facie material to dislodge the presumption under Section 112 of the Evidence Act. Further, if no plea has been raised as to non-access, in order to rebut the presumption under Section 112 of the Evidence Act, a DNA test may not be directed. It was materially observed further that the conclusive presumption of paternity of a child born during the subsistence of a valid marriage is that the child is that of the husband and it cannot be rebutted by a mere DNA test report. What is necessary to rebut is the proof of non-access at the time when the child could have been begotten. What is necessary to rebut is the proof of non-access at the time when the child could have been begotten. To check such routine type of applications, the Supreme Court, at paras-2 & 3, made the following questions for consideration:- “i. Whether, the Family Court, Pune and the High Court of Judicature at Bombay, have rightly appreciated Section 112 of the Evidence Act in directing that a DNA test of Master Arjun be conducted? II. Whether, on non-compliance on the part of the appellant of the direction to subject Master Arjun to DNA test, allegations of adultery as against her could be determined by drawing an adverse inference as contemplated under Illustration (h) of Section 114?”. 6. Answering the aforeasid questions, the Supreme Court has analysed a legal scheme at paras-33 to 43 of the said judgment and finally, given conclusion at para 60, which reads as under:- "60. Having regard to the aforesaid discussion, the following principles could be culled out as to the circumstances under which a DNA test of a minor child may be directed to be conducted: i. That a DNA test of a minor child is not to be ordered routinely, in matrimonial disputes. Proof by way of DNA profiling is to be directed in matrimonial disputes involving allegations of infidelity, only in matters where there is no other mode of proving such assertions. ii. DNA tests of children born during the subsistence of a valid marriage may be directed, only when there is sufficient prima-facie material to dislodge the presumption under Section 112 of the Evidence Act. Further, if no plea has been raised as to non-access, in order to rebut the presumption under Section 112 of the Evidence Act, a DNA test may not be directed. iii. A Court would not be justified in mechanically directing a DNA test of a child, in a case where the paternity of a child is not directly in issue, but is merely collateral to the proceeding. iv. Merely because either of the parties have disputed a factum of paternity, it does not mean that the Court should direct DNA test or such other test to resolve the controversy. iv. Merely because either of the parties have disputed a factum of paternity, it does not mean that the Court should direct DNA test or such other test to resolve the controversy. The parties should be directed to lead evidence to prove or disprove the factum of paternity and only if the Court finds it impossible to draw an inference based on such evidence, or the controversy in issue cannot be resolved without DNA test, it may direct DNA test and not otherwise. In other words, only in exceptional and deserving cases, where such a test becomes indispensable to resolve the controversy the Court can direct such test. v. While directing DNA tests as a means to prove adultery, the Court is to be mindful of the consequences thereof on the children born out of adultery, including inheritance-related consequences, social stigma, etc." 7. In view of the aforeasid settled principles and after going through the pleadings of the Petitioner/husband, this Court is of the opinion that he could not make out any strong case in his favour and as such, the trial Court has rightly dismissed the said application for conducting DNA test. 8. Consequently, the order impugned is found to be well merited not warranting any interference invoking supervisory jurisdiction. 9. Resultantly, the instant Petition sans merit and is accordingly dismissed in limine.