HMA and Child DNA test

Supreme Court of India
  
       IN THE SUPREME COURT OF INDIA

               CIVIL APPELLATE JURISDICTION

 CIVIL APPEAL NO.7018 OF 2009

            (Arising out of SLP (C) No. 27770 of 2008)  

Ramkanya Bai …Appellant  
Versus
Bharatram …Respondent  

JUDGMENT

 TARUN CHATTERJEE, J.

 1. Leave granted.

 2. This appeal is directed against the Judgment and order dated 26 of June, 2008 passed by the High Court of   Madhya Pradesh at Indore Bench in IA No. 803 of 2007,   which arose in a pending first appeal, which has been       filed against the Judgment and order dated 7 of   December, 2006 passed by the Additional District and   Session Judge, District Mandsor, Madhya Pradesh.
In   the impugned order in the pending first appeal, the High   Court had directed DNA test of the child of the parties to   be performed.

 3. The facts leading to the filing of this appeal in this Court   are as follows :-

 The marriage of the wife/appellant was solemnized with the husband/respondent on 20 of April, 1999. But after   sometime, the husband/respondent started harassing wife/appellant on various issues and she was subjected to   cruelty and eventually, she was turned out of her matrimonial   home. In the year 2004, the husband/respondent filed an   application being HMA No. 7(C) of 2004 under Section 13 of   the Hindu Marriage Act in the Court of Additional District and Session Judge, District Mandsor, Madhya Pradesh. However,   a child was born in the month of November, 2004 to the parties.   The parties entered appearance and
issues were framed and  th finally, the trial Court, by its Judgment and decree dated 7 of   December,2006, dismissed the petition filed by the   husband/respondent against which,the husband/respondent   had filed an appeal before the High Court of Madhya Pradesh   at Indore Bench under Section 28 of the Hindu Marriage Act.  

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As noted hereinearlier, the said appeal is pending decision in   the High Court.
4. In the said pending appeal, an application was made by   the
husband/respondent for an order to perform DNA test of the   child born in the month of November, 2004 on the ground that   such child could not be taken to be a child born out of the   wedlock of the parties. It was the appellant who objected to this   application stating inter alia that the child was born from the   wedlock of the parties and it was also brought to the notice of   the High Court that the husband/respondent did not deny the   paternity of the child while the suit was pending before the trial   Court. The High Court, by the impugned order, allowed said application of the husband/respondent by making the   following observation :

 “However, since the appellant has made a prestige issue and it appears to
this Court that in case in DNA test if it is found that the son of the
Respondent is from the appellant then the family can be re-united.”

 

5. On a plain reading of the impugned order, it is also evident   that the High
Court has allowed the prayer of the   husband/respondent for performing the DNA
test of the child   without looking to the facts and circumstances of the
present   case and without looking into the question of law that may be   raised
in the matter.

6. Feeling aggrieved by this Order, the wife/appellant has   come up to this
Court by way of a Special Leave Petition, which   on grant of leave, was heard
in presence of the learned counsel   for the parties.

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7. We have heard the learned counsel for the parties and   examined the impugned
order of the High Court as well as the   Judgment of the trial Court, by which
the application for grant of   divorce filed under Section 13 of the Hindu
Marriage Act by the   husband/respondent was dismissed.
8. We are unable to accept the impugned order of the High   Court. The High
Court was not justified in allowing the   application for grant of DNA test of
the child only on the ground   that there will be a possibility of re-union of
the parties if such DNA test was made and if it was found from the outcome of the   DNA test that
the son was born out of the wedlock of the parties.   In the absence of any
reason except on the ground that the   husband/respondent had made a prestige
issue about the   paternity of the child, nothing could be found from the
impugned   order of the High Court which could invite the Court to allow such
application.
9. On a perusal of the application for grant of an order for   DNA test of the
child, it would also be evident that there was no   allegation made by the
husband/respondent that as a   consequence of illicit relationship with some
third person, the   child was born to the wife/appellant. Apart from that, it is
an   admitted position that during the pendency of the divorce 8

  proceedings in trial Court, neither such prayer for performing   DNA test to
find out the paternity of the child was ever made by   the husband/respondent
nor any allegation in the plaint was   made by him in his pleading. Therefore,
it was not open to the   High Court at the appellate stage to direct the DNA
test to be   performed on the child of the wife/appellant. It is also well
settled   that the presumption of legitimacy is a presumption of law. When   a
child is born out of a wedlock, there is a presumption in favour   of his
legitimacy and presumption of legitimacy largely depends   on the presumed fact
that the parties to a marriage have   necessary access to each other when a
divorce petition is filed   and specially, when the husband/respondent did not
assert that   the son of the wife/appellant was a consequence of illicit 9

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  relationship with some third person. The High Court, in the   impugned order,
has also observed that the son of the   wife/appellant has begotten from the
husband/respondent, which   cannot be disputed at this stage on the basis of
mere desire of   the husband/respondent to deny such paternity of the child.

10. For the reasons aforesaid, the impugned order is set aside   and the
application of DNA test to be performed on the child of   the wife/appellant is
hereby rejected. Considering the facts and   circumstances of the case, we
request the High Court to dispose   of the pending appeal at an early date,
preferably within six   months from the date of supply of a copy of this order
to it.

11. The appeal is thus allowed. There will be no order as to   costs.

                                                   1

   ……………

                         …………J. [Tarun

                                     Chatterjee]

   New Delhi; ………………………J. October 22, 2009 [R. M. Lodha]

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