Cruelty on Husband – Divorce

SUPREME COURT OF INDIA

Amarjit Kaur
vs
Harbhajan Singh and Another

HON’BLE JUSTICE DORAISWAMY RAJU
AND
HON’BLE JUSTICE H. K. SEMA
23/10/2002

JUDGMENT:
1. The above appeals have been filed against the order of a learned single judge of theHigh Court of Punjab and Haryana at Chandigarh dated 10.11.2000 in civil revision No.5057/ 1998 and a subsequent order dated 7.12.2000 passed in a review application No.112-C-II/2000.

2. Heard Mr. Raju Ramachandran, learned senior counsel for the appellant and Mr. K.Rajendra Choudhary, learned senior counsel for the respondent.

3. The appellant is the wife of the first respondent. The respondent – husband has filed a petition under Section 13 of the Hindu Marriage Act, 1955 “During the course of the submissions, it was suggested to the counsel for the petitioner and his client Smt. Amarjit Kaur whether they are willing to get DNA test of the male child namely Samarjit Singh. Before concluding, directions are also given to the trial court to order for conducting the DNA test of the male child who is in the custody of the petitioner and if the test goes against the petitioner, she will not be entitled to get any maintenance pendente lite for herself but she will definitely get the maintenance for the girl child whose maintenance is fixed at Rs. 1000/- per month.” *

4. Aggrieved, the wife moved an application by way of review and sought to bring to the notice of the court the decision reported in Goutam Kundu v. State of West Bengal and Anr., 1993 Indlaw SC 1165 The learned single judge, by a cryptic order, has chosen to reject the review application with costs, in a sum of Rs. 1000/- Hence, the above appeals.

5. The learned senior counsel for the appellant strenuously contended that the conduct of
the parties which requires to be adjudicated in the main writ petition has no relevance, at
the stage of granting interim or pendente lite maintenance and that the consideration in
this regard has to be confined to the criteria specified in Section 24 of the Hindu Marriage
Act, 1955. It was also pointed out that imposition of a condition, which will operate as a
disfeasance clause, to deprive the very maintenance order to be paid, particularly of the
nature imposed in this case directing the conduct of DNA test of the male child in
question is not warranted. Argued the learned counsel further that this Court in the
decision in Goutam Kundu’s case (supra), declared the legal position as to the
circumstances under which and the limitations to be observed in compelling anyone to
give a sample of blood against his/her will for DNA analysis, keeping in view, the serious
consequences flowing from the same, i.e., the branding of a child as a bastard and the
mother as an unchaste woman. It was made clear therein that no adverse inference can be
drawn against the person for his refusal. According to the learned counsel for the
appellant, such an order could not and ought not to have been made at this stage and in
the manner it has been done, by the court on its own imposing the same as a conditional
direction affecting even the right to get pendent lite maintenance, without even their
being any formal application from the respondent – husband and justifying any such
claim, in accordance with law.

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6. Per contra, the learned senior counsel appearing for the respondent, relying on the
decision reported in Dwarika Prasad Satpathy v. Bidyut Prava Dixit and Anr., 1999 (8)
JT 329 contended that in the matter of grant of maintenance, there is no impediment for
the court to impose a condition of the nature and in case of refusal to cooperate to
conduct the DNA test, make the defaulting party suffer consequences thereof. It was also
urged that no exception could be taken to the course adopted by the learned single judge
in the light of the serious dispute raised with reference to the parentage of one male child
living with the wife. The learned counsel also contended that the discretion exercised by
the learned single judge of the High Court on the peculiar facts and circumstances of the
case, is not at all a matter which needs or calls for any interference in an appeal under
Article 136 of the Constitution of India.
7. We have carefully considered the submissions of learned counsel appearing on either
side.
8. Section 24 of the Hindu Marriage Act, 1955 empowers the court in any proceeding
under the Act, if it appears to the court that either the wife or the husband, as the case
may be, has no independent income sufficient for her or his support and the necessary
expenses of the proceeding, it may, on the application of any one of them order the other
party to pay to the petitioner the expenses of the proceeding and monthly maintenance as
may seem to be reasonable during the proceeding, having regard to also the income of
both the petitioner and the respondent. Once the High Court, in this case, has come to the
conclusion that the wife – appellant herein has to be provided with the litigation expenses
and monthly maintenance, it is beyond comprehension as to how, de hors the criteria laid
down in the statutory provision itself, the court could have thought of imposing an
extraneous condition, with a default clause which is likely to defeat the very claim which
has been sustained by the court itself. Consideration as to the ultimate outcome of the
main proceeding after regular trial would be wholly alien to assess the need or necessity
for awarding interim maintenance, as long as the marriage, the dissolution of which has
been sought, cannot be disputed, and the marital relationship of husband and wife
subsisted. As noticed earlier, the relevant statutory consideration being only that either of
the party, who was the petitioner in the application under Section 24 of the Act, has no
independent income sufficient for her or his support, for the grant of interim
maintenance, the same has to be granted and the discretion thereafter left with the court,
in our view, is only with reference to reasonableness of the amount that could be awarded
and not to impose any condition, which has self-defeating consequence. Therefore, we
are unable to approve of the course adopted by the learned single judge, in this case.
9. Coming now to the nature of the condition imposed, though, it has been seriously
contended for the appellant that no such condition could have been imposed to compel
the undergoing of a DNA test of the male child, we do not propose to express any opinion
on the legality or propriety of the court undertaking consideration at the appropriate
stage, by the court competent, in the main petition of any application moved in an
appropriate manner according to law, but we would confine our consideration to the
limited aspect as to whether the High Court could have imposed such a condition at the
stage of awarding interim maintenance pendente lite and that too without an application
for the purpose from the other party, at the instance of the court by way of a suggestion
put to the appellant in the course of consideration of the application for interim
maintenance. The law in the matter governing the consideration and passing of any order
in respect of a claim for DNA test has sufficiently been laid down by this Court and if a
party to a proceeding cannot be compelled against his/her wish to undergo any such test,
we fail to see how the court on its own could have imposed a condition without any
consideration whatsoever of any of the criteria laid down by this Court, by adopting a
novel device of imposing it as a condition for the grant of the interim maintenance, with a
default clause, which as rightly contended for the appellant, will have the inevitable
consequences of predetermining the claim about the parentage with serious consequences
even at the preliminary stage. The procedure, thus, adopted by the High Court does not
appear to be neither just nor reasonable or in conformity with the principles of law laid
down by this Court and consequently the order is liable to be set aside. The decision in
Dwarika Prasad Satpathy v. Bidyut Prava Dixit and Anr. (supra) relied for the
respondent, in our view, has no relevance or application to the case on hand. That was a
case wherein, in dealing with a claim for maintenance invoking the summary proceedings
under Section 125 of the Cr. P.C., the husband attempted to defeat the claim made by the
wife by asserting non performance of essential rites at the time of marriage, the factum of
which as well as the parentage of the child could not be questioned. In the process of
ascertaining the genuineness of the said stand, when the suggestion made to the husband
to undergo DNA test was refused by him, and the court dealing with the application by
summary proceedings chose to observe that the husband was disentitled to challenge the
paternity of the child in the proceedings under Section 125 Cr. P.C., this Court declined
to interfere with the order of the trial court on the question of prima facie satisfaction
recorded as to the proof of marriage. We see absolutely no general principle of law laid
down in this case which could be said to lend any support to the plea on behalf of the
respondent. We are unable to persuade ourselves to agree with the plea urged for the
respondent that the case does not warrant our interference in these appeals, since, we find
that a serious and flagrant violation of law has been committed by the High Court, in the
matter disposing of the revision and review petition, and the same ought not to be
allowed to get sanctified, with our approval, too.
10. The order passed rejecting the review application summarily despite the fact that a
judgment of this Court relevant for the purpose has been brought to the notice of the
court, without even expressing any view on the matter, by itself, is sufficient to set aside
the order made on the review petition. It is really surprising that the court should have
thought of awarding cost in a sum of Rs. 1000/- against the wife, who was before the
court seeking for maintenance pendente lite.
11. The appeals are allowed. The order in so far as it relates to the offending condition
relating to the DNA test is set aside. In other respects, the order in so far as it awards the
litigation expenses and monthly maintenance is sustained. We make it clear that we are
not expressing any opinion about the rights of the parties to seek for the relief for the
DNA test or the evidentiary value of the same and the trial court shall be at liberty to
consider the matter relating to such claims on their own merits, in accordance with law.
No costs.

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