Court:ALLAHABAD HIGH COURT
Bench: JUSTICE Sunita Agarwal
RENU SINGH @ REENU SINGH Vs. PRAMOD KUMAR SINGH On 31 August 2017
DNA Test — Paternity of child — Directions given in mechanical manner — Evidence led by parties not examined by Family Court — Any order or direction for DNA test can be given by Court only when strong prima facie case is made out for such a course — Legal position relating to DNA test, allegations levelled by parties, welfare of child, stage for conducting DNA test not reached in this case — Principal Judge, Family Court erred in directing for DNA test of child without applying its mind on evidence led by parties in respect of their rival assertions — Impugned order unsustainable and set aside.
Counter affidavit filed today is taken on record.
Heard Mr. Chandra Sen Pal, learned Counsel for the petitioner and Mr. Shailendra Singh, learned Counsel for respondent. With the consent of the learned Counsel for the parties, the present petition has been heard for final disposal and is being decided at the admission stage itself without calling for their affidavits.
2. In the present petition, the order dated 11.7.2017 passed by the Additional District and Sessions Judge/FTC, Court No. 2, Azamgarh passed on the application 17Ga-2 filed by the husband (petitioner therein) in Matrimonial Petition No. 50 of 2008, Pramod Kumar Singh v. Smt. Renu Singh, under Section 13 of Hindu Marriage Act, 1955 is under challenge. The petitioner herein is wife/respondent in the said suit.
3. The noticeable facts relevant to deal the controversy are that the marriage of the parties had been solemnized on 28.6.1999 as per the Hindu rites and rituals. A child was born on 31.1.2000. It appears that some dispute arose between the parties and the wife is residing in her paternal house with her son. There are rival contentions of the parties regarding leaving of her matrimonial home by the wife. The claim of the husband in the matrimonial petition is that the parties started living separately by mutual consent with the intervention of their family members and wife is residing in her paternal house since after 2.2.2000. Whereas the claim of the wife is that she was thrown out of her matrimonial home for demand of dowry on 14.4.2006 and since then she is residing in her paternal home.
4. It is also discernible from the record that a Complaint Case No. 1096 of 2006, Renu Devi v. Pramod Singh and Others, was filed by the wife on 26.4.2006 wherein summoning order dated 12.7.2006 was passed by the Court concerned. The said order was challenged before this Court under Section 482 of the Criminal Procedure Code, a copy of the said application has been brought on record. The averments therein are that the allegations levelled by the complainant wife against the application husband and other family members were false. The parents of the wife were instigating her to make false complaint. The wife was never tortured nor was there any demand of dowry by the husband or his family. However, conspicuously, in none of the paragraphs of the said application any averment had been made regarding infidelity of wife. The said application was filed before this Court in the month of January, 2008. Whereas the Divorce petition was also filed on 25.1.2008 i.e. in the same month.
5. It is further noteworthy that an application under Section 125, Cr.P.C. as moved by the wife on 23.5.2006 demanding maintenance for herself and her son which came to be awarded on 28.11.2011. The said proceeding was contested by husband and for the first time therein the allegations of infidelity had been levelled against wife. In the divorce petition, it was sought to be submitted that though the husband was aware of pregnancy of his wife after their marriage, however, when the child was delivered on 31.1.2000, he became suspicious that his wife was having illicit relationship with another man as there was no question of birth of the child within seven months of marriage.
6. Terming the child as illegitimate, the husband seeks to submit that he is entitled for a decree of divorce. The allegations of remarriage of wife has also been levelled in the divorce petition by the husband and one Iklakh Ahmad aged about 38 years son of Abdul Salam has been impleaded in the divorce petition.
7. During the pendency of the Divorce Petition, an application 17Ga-2 was moved on 3.2.2017 by the husband with the prayer to conduct D.N.A. Test of the child and himself with a view to substantiate allegations of infidelity of his wife. This application was allowed in a routine manner simply placing reliance upon the judgments of the Apex Court in Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik and Another reported in I (2014) DMC 313 (SC)=I (2014) SLT 365=I (2014) DLT (CRL.) 879 (SC)=2014 (2) SCC 576 and Dipanwita Roy v. Ronobroto Roy reported in III (2014) DMC 812 (SC)=IX (2014) SLT 241=2015 (1) SCC 365 and hence this petition.
8. The submission of learned Counsel for the petitioner is that the allegations of infidelity against wife made by the husband are a counterblast of the proceeding initiated by wife for illegal demand of dowry and claim of maintenance. The allegations levelled in divorce petition are without any basis. Sufficient documentary evidences have been filed before the Family Court to substantiate that the child was born out of the wedlock of the parties and the allegations of wife having illicit relationship with another man are baseless. Submission is that the Family Court could not have ordered for conducting DNA test in a routine manner without applying its mind on the evidence brought before it, merely on the basis of allegations made in the divorce petition.
9. Learned Counsel for the husband, on the other hand, placed reliance upon the judgment in Dipanwita Roy (supra), to submit that the Apex Court in that case had directed that in case of allegations of infidelity of wife, it would be impossible for husband to establish and confirm the assertions made in the pleadings. DNA testing is the most legitimate and scientifically perfect means which a husband can use, to establish his assertion of infidelity. It is most authentic, rightful and correct means also for wife to rebut the assertions of her husband and to establish that she had remained faithful, not adulterous and loyal to her husband. The clear picture would be drawn by conducting DNA test and if wife is right, she shall be proved to be so. She can have no objection for DNA testing which would definitely prove the legitimacy of the child.
10. Considering the submission of learned Counsel for the parties and the facts noted above, a specific query was made from the learned Counsel for the husband as to the stage of the Divorce Petition. Some of the evidences filed by the wife enclosed in this petition have also been taken into consideration. Having considered the nature of allegations and the evidence filed by the wife, this Court is of the prima facie view that the questions as to whether the child was born out of the wedlock of the parties and whether the allegations of infidelity are false has to be examined on appreciation of evidence in the Divorce petition.
11. As per own averment of the husband in the Divorce Petition, the fact that the marriage of the parties solemnized on 28.6.1999 was consumated. The allegations have been levelled against wife on account of premature birth of the child i.e. after approximately after a period of seven months from the date of marriage. The assertions in the divorce petition are that the wife had admitted that the child was illegitimate. The question before the Family Court, therefore, would be to find out as to who is telling the truth. The evidence led by the parties have yet not been examined by the Family Court and it had proceeded to direct for conducting DNA test in a mechanical manner.
12. So far as the observations of the Apex Court in the case of Dipanwita Roy (supra) relied upon by the Family Court, there is no dispute about the fact that in respect of alleged infidelity of wife, a ground for filing of the divorce petition under Section 13(1)(2) of the Hindu Marriage Act, 1955, DNA test is the most legitimate and scientifically perfect method.
13. However, as to the stage of conducting DNA test and the consideration which are required to be taken into account before forming such option, the observations made by the Apex Court in the case of Bhabani Prasad Jena v. Convenor Secretary, Orissa State Commissioner for Women and Another reported in II (2010) DMC 307 (SC)=V (2010) SLT 566=2010 (8) SCC 633 are relevant to be taken note of. In that case, the Apex Court had held that DNA test in a matter relating to paternity of a child should not be directed by the Court as a matter of course or routine manner. Wherever such request is made, the Court has to be consider diverse aspects including presumption under Section 12 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. Any order or direction for DNA test can be given by the Court only when a strong prima facie case is made out for such a course.
14. Relevant paragraphs 21, 22 and 23 of the said report are quoted as under:
21. 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 pre-judicial 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 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.
23. There is no conflict in the two decisions of this Court, namely, Goutam Kundu1 and Sharda2 . In Goutam Kundu1 , 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 Sharda2 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 can be given by the Court only if a strong prima facie case is made out for such a course.
15. Even in Dipanwita Roy (supra), the Apex Court in paragraph 10 while considering Bhabani Prasad Jena (supra) had observed as under:
“10. It is borne from the decisions rendered by this Court in Bhabani Prasad Jena (supra), and Nandlal Wasudeo Badwaik (supra), 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 allegation(s), 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 reason, as already recorded in various judgments by this Court, is that the legitimacy of a child should not be put to peril.”
16. In the light of the legal position relating to DNA test and the allegations levelled by the parties, the welfare of the child, this Court is of the considered opinion that the stage for conducting DNA test had not reached in the instant case.
17. The Principal Judge, Family Court, Azamgarh had erred in directing for DNA test of the child without applying its mind on the evidence led by the parties in respect of their rival assertions. Such a course adopted cannot be permitted to sustain.
18. For the above noted reasons, the order dated 11.7.2017 passed by the Additional District and Sessions Judge/FTC, Court No. 2, Azamgarh passed on the application 17Ga-2 filed by the husband (petitioner therein) in Matrimonial Petition No. 50 of 2008, Pramod Kumar Singh v. Smt. Renu Singh, is unsustainable and is hereby set aside.
19. The present petition is allowed.
20. The Principal Judge, Family Court, Azamgarh is directed to proceed with the divorce petition and decide the same preferably within a period of six months from the date of submission of certified copy of this order.
21. The Presiding Officer holding the Court of Principal Judge, Family Court, Azamgarh is directed to keep the above noted principles in mind while dealing with such sensitive matters and to desist from passing any order in mechanical and routine manner, devoid of reasons. It goes without saying that the Court concerned would arrive at an independent decision on the evidence of the parties without being influenced by any of the observations made herein above