HIGH COURT OF MADHYA PRADESH : JABALPUR
W.P. No.15345/2016
Badri Prasad Jharia
-Versus-
Smt. Seeta Jharia
CORAM :
Hon’ble Shri Justice Vijay Kumar Shukla
Shri Ashok Lalwani, Advocate for the petitioner.
Shri Swapnil Ganguly, Advocate for the respondent.
ORDER
(21.04.2017)
In this writ petition preferred under Article 227 of the
Constitution of India, challenge has been made to the order dated
24-8-2016 passed in HMA Case No.33/2015 by the learned
Principal Judge, Family Court, Mandla whereby an application
submitted by the petitioner for DNA test of the respondent has been
rejected.
2. The factual expose, succinctly adumbrated in a nutshell
is that the petitioner got married with the respondent in the year
1999. He is a government servant posted as a clerk in the I.T.I.,
Chhindwara, whereas the respondent is posted as a teacher in
District Mandla. The parties are living at their respective places of
posting ever since after solemnisation of their marriage in the year
1999.
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A petition for dissolution of marriage under Section
13(1) of the Hindu Marriage Act, 1955 is filed by the petitioner
against the respondent on the ground of adulterous behaviour
alleging that she is having extra-marital relationship.
3. The respondent-wife has also lodged a report against the
petitioner for commission of offence punishable under Section 494
of the Indian Penal Code. A child – Vatsla Jharia was born during
the wedlock of the petitioner and the respondent, but the petitioner
has alleged that she is not his daughter, as there was no cohabitation
with the respondent since the year 2006. It is submitted that the
petitioner is posted at Chhindwara since 26-4-2006, whereas the said
child has born in the year 2012.
4. The petitioner preferred an application before the
Family Court for DNA test of the child in order to ascertain
paternity of the child – Vatsla Jharia. In reply to the said application
the respondent has refused for the DNA test of the child and herself.
In addition to the denial in reply to the said application, she also
made a statement for refusal of the DNA test of herself and the
daughter. In this regard she had also made a specific note in the
order-sheet in her own writing, refusing for DNA test.
5. By the impugned order the said application has been
rejected by the Family Court on the ground that the respondent
cannot be compelled for the DNA test, when she had specifically
denied and refused for the said test. It is also mentioned in the
order-sheet that the application has been filed prior to adducing of
evidence before the Court below as the evidence is yet to commence
on behalf of the parties. The Court has also mentioned in the order-
3
sheet that adverse inference of refusal of DNA test by the
respondent shall be taken into consideration at the time of passing
final judgment and the case has been fixed for evidence.
6. Counsel for the petitioner submitted that the order
impugned is perverse and illegal, as request for DNA test has been
rejected by the Court without taking into consideration the pleadings
advanced in the plaint and in the application, which prima facie
establish that the respondent was leading an adulterous life and was
having illicit relations with another person, whose name is also
mentioned in the divorce petition, the Court ought to have allowed
request for DNA test. It is contended that it would be impossible for
him to establish the alleged infidelity of wife and the DNA test is
the most legitimate scientifically perfect He further submitted that
the Apex Court in the case of Nandlal Wasudeo Badwaik vs. Lata
Nandlal Badwaik and another, (2014) 2 SCC 576 held that the
DNA test is only a scientific method, by which the paternity of a
child can be ascertained.
7. To buttress his submissions he also relied on the
judgment of the Supreme Court rendered in the case of Sharda vs.
Dharampal, (2003) 4 SCC 493. He submitted that the right to
individual privacy of the respondent would have been considered
only after passing the order for DNA test and then only adverse
inference and presumption as mentioned in Section 114 of the
Indian Evidence Act, can be drawn. Thus, in sums and substance
counsel for the petitioner has urged the Court below has erred while
rejecting the application for DNA test merely on the ground of
refusal of the respondent for conducting the DNA test.
4
8. Combating the aforesaid submissions, counsel for the
respondent submitted that the application for the purpose of of the
DNA test has been filed by the petitioner at an early stage of the
proceedings of the suit. He has strenuously urged that the evidence
of the parties have yet to be recorded and the petitioner would have
an opportunity to make request for DNA test after recording
evidence or can request the Court to draw adverse inference against
respondent for refusing the DNA test in terms of Section 114 of the
Evidence Act. To substantiate his submission, he referred to paras
15, 18 and 19 of the judgement of the Apex Court passed in Nandlal
Wasudeo Badwaik (supra). Besides, he has placed reliance on
paras 10 and 18 of the judgment the Apex Court rendered in the case
of Dipanwita Roy vs. Ronobroto Roy, (2015) 1 SCC 365 and
submitted that the Apex Court has laid down that the courts have to
strike the balance in the cases of seeking direction for conducting
DNA test vis-a-vis right of an individual privacy. He supported the
impugned order in the light of the aforesaid judgments and
submitted that there is no illegality in the impugned order, as the
Court below has also held that the consequence of refusal of the
respondent in regard to DNA test, would be taken into consideration
at the time of passing final judgment in the matter.
9. To appreciate the rival contentions raised at the Bar, it is
apt to reproduce the order impugned in the present petition:
^^vkosfndk lfgr Jh th-ds- vxzoky vf/koDrk mifLFkrA
vukosnd }kjk Jh bfEr;kt v[rj vf/koDrk mifLFkrA
izdj.k vkosnd dh vksj ls izLrqr vkosnu i varxZr /kkjk26
fu;e 10 ¼v½ lgifBr /kkjk151 O;-iz-l- ij rdZ gsrq fu;r gSA
vkosnu ij rdZ Jo.k fd;s x;sA vukosfndk dh vksj ls ukckfyx iqh
oRlyk kfj;k dk tUe izek.k i is’k fd;k x;kA bldh ,d izfr
vkosnd dks nh tkosA
5¼lqHkk”k lksyadh½
iz/kku U;k;k/kh’k] dqVqEc U;k;ky;
e.MykA
iqu’p
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vukosnd }kjk Jh bfEr;kt v[rj vf/koDrk mifLFkrA
izdj.k vkosnd dh vksj ls izLrqr vkosnd i varxZr /kkjk26
fu;e 10 ¼v½ lgifBr /kkjk151 O;-iz-l- ij vkns’k gsrq fu;r gSA
vkosnd }kjk izLrqr vkosnu i la{ksi esa bl izdkj gS fd
vkosnd us vukosfndk ds fo:) fookg foPNsn gsrq ;kfpdk ;g crkrs
gq, is’k fd;k gS fd vukosfndk ds vU; iq:”kksa ds lkFk laca/k gS rFkk
og O;kfHkpkjh thou ;kiu dj jgh gS] vukosfndk dh tks iqh oRlyk
kfj;k gS og vkosnd ds lalxZ ls ugha gqbZ gSA mDr ckrs ekSf[kd lk{;
ls izekf.kr ugha dh tk ldrh gS] ;g flQZ Mh-,u-,- VsLV ls izekf.kr
dh tk ldrk gSA vr% Mh-,u-,- VsLV djk;k tkos fd vukosfndk dh
iqh oRlyk kfj;k vkosnd ds lalxZ ls gqbZ gS ;k ughaA vkosnd bl
ij yxus okys O;; dks nsus dks rRij gSA
vukosfndk dh vksj ls mDr vkosnu ds fyf[kr tokc esa O;Dr
fd;k x;k gS fd vkosnd }kjk U;k;ky; dh lgkuqHkwfr vftZr djus ds
vk’k; ls rFkk izdj.k dks vuko’;d :i ls foyafcr djus ds vk’k; ls
mDr vkosnu is’k fd;k x;k gS tks vukosfndk ds pfj dks ykafNr
djus okyk gSA vr% mDr vkosnu fujLr fd;k tkosA
mHk; i{k ds rdZ Jo.k fd;s x;sA
izdj.k dk voyksdu fd;k x;kA
vkosnd us ;g izdj.k vukosfndk ds fo:) /kkjk13
fg0fo0vf/k0 ds rgr ‘kkjhfjd ,oa ekufld izrkM+uk o vU; nwljs ls
voS/k laca/k ds vk/kkj ij fookgfoPNsn gsrq is’k fd;k x;k gSA izdj.k
esa mHk;i{k lk{; gksuk gSA vkosnd us lk{; ds nwljs volj ;g
vkosnu i izLrqr fd;k gSA vukosfndk us Mh-,u-,- VsLV ds vkosnu ds
tokc esa rFkk U;k;ky; esa ekSf[kd :i ls Mh-,u-,- VsLV djkus ls Li”V
badkj fd;k gSA bl ckcr~ vkns’k ifdk esa bl vk’k; dh vukosfndk
lhrk dh Lo;a dh gLrfyfi esa mlus Vhi Hkh ys[k dh gSA ,slh fLFkfr esa
vukosfndk dh bPNk ds fo:) mldk o mldh iqh oRlyk kfj;k dk
Mh-,u-,- VsLV djk;k tkuk mfpr ugha gSA vukosfndk }kjk Mh-,u-,-
VsLV ls fd;s x;s badkj dks U;k;ky; }kjk fu.kZ; ds le; fopkj esa
fy;k tkosxkA
rnkuqlkj bl vkosnu i ij vkns’k fd;k tkrk gSA
vkxkeh frfFk ij vkosnd vius laiw.kZ lkf{k;ksa dks Lo;a mifLFkr
j[ksA
izdj.k vkosnd lk{; gsrq fnukad 19-09-2016¼lqHkk”k lksyadh½
iz/kku U;k;k/kh’k] dqVqEc U;k;ky;
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10. Upon perusal of the impugned order it is manifest, that
the application seeking direction for DNA test has been filed prior to
6recording of evidence of the parties. The respondent has refused for
the DNA test of herself and also of the child in the written reply and
also in her oral statement made before the Court. In addition to that,
she had also made a handwritten note in the order-sheet that she is
not willing for the DNA test. The Court has also observed in the
impugned order that the adverse inference of refusal for the DNA
test would be taken into consideration at the time of passing of the
final judgment.
11. It is condign to survey the proposition of law in respect
of prayer for DNA test in order to ascertain the paternity and
legitimacy of the child and infidelity of wife. At this juncture it is
useful to refer the provisions of Section 112 of the Evidence Act. It
reads thus:
“112. Birth during marriage, conclusive
proof of legitimacy- The fact that any person
was born during the continuance of a valid
marriage between his mother and any man, or
within two hundred and eighty days after its
dissolution, the mother remaining unmarried,
shall be conclusive proof that he is the
legitimate son of that man, unless it can be
shown that the parties to the marriage had no
access to each other at any time when he could
have been begotten.”
The word `access’ used in Section 112 of the Act was
considered by the Privy Council in the case of Karapaya Servai vs.
Mayandi, AIR 1934 PC 49 and it was held that it connotes only the
7existence of an opportunity for marital intercourse, and in case such
an opportunity was shown to have existed during the subsistence of
a valid marriage the provision explained the same as a conclusive
proof of the fact that the child born during the subsistence of the
valid marriage, was a legitimate child.
12. The said judgment was followed by the Apex Court in
Chilukuri Venkateswarlu vs. Chilukuri Venkatanarayana, AIR 1954
SC 176. In the case of Goutam Kundu vs. State of W.B., (1993) 3
SCC 418 it was held by the Apex Court that the order for blood test
cannot be passed as a matter of course. There must be a strong
prima facie case in that the husband must establish non-access in
order to dispel the presumption arising under Section 112 of the
Evidence Act. It was further held that no one can be compelled to
give sample of blood for analysis. In the case of Kamti Devi vs.
Poshi Ram, (2001) 5 SCC 311 in which it was held that the result of
a genuine DNA test is said to be scientifically accurate, but even
that it is not enough to escape from the conclusiveness of Section
112 of the Evidence Act.
13. In the case of Sham Lal vs. Sanjeev Kumar, (2009)12
SCC 454 it was held that the presumption under Section 112 of the
Evidence Act cannot be displaced by mere balance of probabilities..
or any circumstance creating doubt.
14. In the case of Sharda vs. Dharmapal (supra) the Apex
Court explained that the ratio of Goutam Kudus’ case (supra) was
not an authority for the proposition that under no circumstances the
Court can direct for blood test to be conducted.
8
15. In Selvi vs. State of Karnataka, (2010) 7 SCC 263 the
Apex Court held that no individual should be forcibly subjected to
any of the techniques whether investigation in criminal cases or
otherwise as it would amount an unwarranted intrusion into personal
liberty.
16. The Apex Court in the case of Dipanwita Roy vs.
Ronobroto Roy, (supra) where the High Court had already directed
for the DNA test, held in para 18 of the order while upholding the
order passed by the High Court by putting a caveat before passing of
the order regarding paternity test by DNA, observed thus :
“18. We would, however, while upholding
the order passed by the High Court, consider it
just and appropriate to record a caveat, giving
the appellant-wife liberty to comply with or
disregard the order passed by the High Court,
requiring the holding of the DNA test. In case,
she accepts the direction issued by the High
Court, the DNA test will determine conclusively
the veracity of accusation levelled by the
respondent-husband, against her. In case, she
declines to comply with the direction issued by
the High Court, the allegation would be
determined by the concerned Court, by drawing
a presumption of the nature contemplated in
Section 114 of the Indian Evidence Act,
especially, in terms of illustration (h) thereof.
Section 114 as also illustration (h), referred to
above, are being extracted 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.
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Illustration (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.”
This course has been adopted to preserve the
right of individual privacy to the extent
possible. Of course, without sacrificing the
cause of justice. By adopting the above course,
the issue of infidelity alone would be
determined, without expressly disturbing the
presumption contemplated under Section 112 of
the Indian Evidence Act. Even though, as
already stated above, undoubtedly the issue of
legitimacy would also be incidentally involved.”
17. In the light of para 18 of the judgment passed by the
Apex Court in Dipanwita Roy vs. Ronobroto Roy, (supra), the
impugned order cannot be held to be illegal. It has been held by the
Apex Court that a person cannot be compelled for the DNA test,
though, the DNA test is most legitimate and scientifically perfect
means which the husband can use to establish and ascertain the
paternity and infidelity, but at the same time the Court has evolved
the principle of balance by directing for preservation and the right of
individual privacy to the extent possible and, therefore, the Court
itself has held that in case, the wife declines for the DNA test, the
Court can draw presumption as contemplated in Section 114 of the
Evidence Act, without disturbing the presumption envisaged in
Section 112 of the Evidence Act.
18. However, as discussed above in the light of facts and the
law in respect of directions for DNA test and also taking into
consideration the submission of respondent that the petitioner can
file an application for DNA test after recording of evidence, the
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petitioner will have an opportunity to make a request for DNA test
after recording of evidence or, to request the Court to draw adverse
inference against the respondent for refusing the DNA test in terms
of Section 114 of the Indian Evidence Act.
19. Thus, in view of the aforesaid enunciation of law
discussed in preceding paragraphs, I do not find any illegality and
perversity of approach in the impugned order warranting
interference of this Court in exercise of jurisdiction under Article
227 of the Constitution of India and the arguments advanced by the
counsel for the petitioner cannot be countenanced at this stage.
20. Ex-consequenti, the writ petition being devoid of merit,
is dismissed with the aforesaid liberty. In the facts and
circumstances of the case, there shall be no order as to costs.
(Vijay Kumar Shukla)
Judge
ac.
