IN THE HIGH COURT OF JUDICATURE AT PATNA
First Appeal No.524 of 1998
Against a Judgment and Decree antiquated 13.07.1998 upheld by 6th Additional District Judge, Gaya in Title Suit(Divorce) Case No.20 of 1990/1 of 1996.
Ashok Kumar ……………….Plaintiff – Appellant
Smt. Kumari Bachchi Devi @ Bina Roy …………Defendant-Respondent
For a Appellant/s : Mr. Shashi Shekhar Dvivedi, Sr. Advocate Mr. Ranjan Kumar Dubey, Advocate Mr. Parth Gaurav, Advocate Mr. Projesh, Advocate
For a Respondent/s : Mr. Alok Kumar Choudhary, Advocate.
CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO C.A.V.
JUDGMENT Date: 19-05-2017
1. The plaintiff has filed this First Appeal severe a impugned visualisation and direct antiquated 13.07.1998 upheld by a schooled 6th Additional District Judge, Gaya in Title Suit(Divorce) Case No. 20 of 1990/1 of 1996 whereby a schooled conference probity discharged a plaintiff’s fit for divorce.
2. The plaintiff-appellant filed a aforesaid divorce box underneath Section 13 of a Hindu Marriage Act praying for a direct for divorce conflicting a respondent. The plaintiff claimed a aforesaid service Patna High Court FA No.524 of 1998 dt.19-05-2017 on a contribution inter alia that they were married on 18.05.1981. The respondent is of incorrigible impression and has been vital in adultery given a matrimony and it continued after matrimony also. She had passionate retort with conflicting persons other than a applicant. When a applicant learnt about a impression he had no passionate retort with a conflicting celebration given 1982. The applicant was not holding any stairs conflicting a conflicting celebration anticipating that she would refrain in destiny from committing a offences. However, she continued with a incorrigible act and eventually she gave birth to a masculine child on 13.04.1990. The birth of this masculine child is decisive explanation of a fact that a conflicting party- mother is indulged in passionate co-habitation with conflicting persons. The applicant does not know a names of those persons with whom a mother is indulged in passionate co-habitation.
3. After notice, a respondent-wife seemed and filed contesting created matter denying all a allegations of a husband. In a created statement, she described a durations when she was vital with a applicant-appellant and clearly staid that given 1987 to 1989 she was staying with a appellant and had co-habited with him and became pregnant. As a outcome of this, a masculine child was innate to a wife- respondent who is a son of a applicant-appellant.
4. The serve box is that there was some differences between both a families given of direct of Rs.20,000/- by a father for Patna High Court FA No.524 of 1998 dt.19-05-2017 purchasing “Hero Honda” motorcycle that was refused by father, therefore, this fake box has been filed. It is not compulsory to understanding with a fact pleading of a conflicting party. Only those contribution that are compulsory are being staid above.
5. On a basement of a aforesaid pleadings of a parties, a schooled conference probity framed a following issues:
I. Is a fit maintainable as it has been framed and filed?
II. Has a applicant got any means of movement for a suit?
III. Is a O.P. vital in adultery given marriage?
IV. Has a applicant no passionate retort with a O.P. given 1982?
V. Is a child given birth to by a O.P. outcome of adultery or is innate out of a holy nuptials with a applicant?
VI. Has a applicant ever demanded Rs.20,000/-(twenty thousand) for squeeze of Hero Honda Motorcycle from a father of a O.P.?
VII. Is a applicant entitled to a direct of divorce?
6. After conference a parties and deliberation a evidences, a schooled conference probity accessible anticipating that a applicant unsuccessful to infer adultery and serve hold that a masculine child innate to a wife-respondent is of a husband. Accordingly, discharged a divorce suit.
7. The schooled comparison counsel, Mr. Dvivedi lifted dual drift only. According to a schooled comparison counsel, D.N.A. exam was conducted by conjectural laboratory during Hyderabad and news was submitted to a outcome that masculine child is not a son of a applicant-appellant though a schooled conference probity deserted a same and himself came to a Patna High Court FA No.524 of 1998 dt.19-05-2017 end that a news is wrong that a schooled probity next could not have done. The schooled comparison warn serve submitted that a evidences constructed by a mother are not arguable and moreover, whatever hypothesis was accessible underneath Section 4 and 112 of a Evidence Act has been rebutted by a D.N.A. news though a schooled probity next deserted a news on illogical drift for a purpose of dismissing a divorce box and a reason reserved for dispatch D.N.A. exam can't be supposed by probity of law.
8. Secondly, a schooled comparison counsel, Mr. Dvivedi submitted that a parties are vital alone given some-more than about 27 years, that clearly proves that a matrimony between them has irretrievably damaged and, therefore, on this belligerent also, a appellant is entitled to a extend of a direct for divorce. The schooled warn for a appellants relied on several decisions on both a points. The same shall be deliberate subsequently.
9. On a other hand, a schooled counsel, Mr. Choudhary for a respondent submitted that in perspective of Section 4 and 112 of a Evidence Act, a hypothesis of descent is decisive proof, therefore, this decisive explanation can't be dislodged by D.N.A. report. There might be mistakes in a report, therefore, it is not protected to rest on a D.N.A. report. The schooled conference court, therefore, has given sufficient reason for not relying on a D.N.A. news and in perspective of Section 112 of Patna High Court FA No.524 of 1998 dt.19-05-2017 a Evidence Act hold that conclusively it is current that masculine child is son of a appellant. Since a D.N.A. news has got a critical effect a same should be so many so authentic that 100% faith can be placed on it though a author of a news in his justification staid that there is probability of blunder upto 0.02% and this is sufficient to drop a D.N.A. news and if D.N.A. news is deserted afterwards there is no explanation of a fact of adultery given according to a husband, a mother is indulged in earthy attribute with others given a matrimony is took place in 1981. However, a father did not take any step upto a year 1990 when a son was innate that speaks that this is a baked adult story. The schooled warn for a respondent relied on a preference relating to D.N.A. test. we shall cruise these decisions thereafter.
10. So distant irretrievably relapse of a matrimony is concerned, a schooled warn submitted that no doubt a parties are staying alone from any other for some-more than 27 years and now it will not be probable to reside together though if divorce is postulated on this ground, afterwards permanent subsistence be supposing to a wife.
11. On a basement of a arguments modernized by a schooled warn for a parties, a following points arises for care in this First Appeal:
Patna High Court FA No.524 of 1998 dt.19-05-2017 I. Whether a father applicant-appellant has been means to infer a belligerent of adultery and either a son innate in a year 1990 is a son of a appellant or not?
II. Whether on a belligerent of irretrievably relapse of marriage, a husband-appellant is entitled for a extend of direct of divorce?
12. The applicant-appellant besides other evidences examined a scientist A.W.2, Dr. G.V. Rao of Centre for D.N.A. Fingerprinting and Diagnostics, C.C.M.D. Campus, Uppal Road, Hyderabad 500007. On a other hand, a O.P. has examined 5 witnesses only. The news of a Scientist A.W.2 has been noted as Exhibit 2 with objection. It might be mentioned here that a father and mother both voiced their eagerness to bear a paternity exam i.e. D.N.A. test. The consultant constructed a report, Ext. 2 and a enclosing along with Ext. 2 has been noted as Ext. 3 and this report, clearly proves that Ashok Kumar, a appellant is not a biological father of a son innate to respondent herein namely, Master Rahul Kumar.
13. The schooled comparison warn relied on a preference of a Supreme Court, 2014(2) Supreme Court Cases 576(Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik and another) and submitted that a D.N.A. exam news is scientifically accurate though a schooled conference probity Patna High Court FA No.524 of 1998 dt.19-05-2017 in a benefaction box scrutinized a news and afterwards on groundless ground, deserted a report.
14. From examination of this decision, it appears that a Supreme Court in that box also was deliberation a news of D.N.A. exam and during divide 13 has hold relying on a preference of Kamti Devi v. Poshi Ram, 2001(5) Supreme Court Cases 311 that it has been famous by a Supreme Court in Kamti Devi (supra) that outcome of a D.N.A. exam is scientifically accurate. In a benefaction case, it will not be out of place to discuss here that it is not a box of any celebration that a D.N.A. test, Ext. 2 is not a genuine report. No dispute to a news has been filed by a mother nor a wife-respondent ever prayed for another D.N.A. exam report. In other words, a genuineness of a news is not challenged.
15. In a same decision, a Hon’ble Supreme Court during divide 16 and 17 hold as follows:
“16. As staid earlier, a DNA exam is an accurate exam and on that basement it is transparent that a appellant is not a biological father of a girl-child. However, during a same time, a condition fashion for bid of Section 112 of a Evidence Act has been determined and no anticipating with courtesy to a defence of a father that he had no entrance to his mother during a time when a child could have been begotten has been recorded.
Admittedly, a child has been innate during a continuation of a current marriage. Therefore, a supplies of Section 112 of a Evidence Act conclusively infer that Respondent No. 2 is a daughter of a appellant. At a same time, a DNA exam reports, formed on systematic analysis, in no capricious terms advise that a appellant is not a biological Patna High Court FA No.524 of 1998 dt.19-05-2017 father. In such circumstance, that would give proceed to a other is a formidable doubt acted before us.
17. We might remember that Section 112 of a Evidence Act was enacted during a time when a complicated systematic enrichment and DNA exam were not even in speculation of a Legislature. The outcome of DNA exam is pronounced to be scientifically accurate. Although Section 112 raises a hypothesis of decisive explanation on compensation of a conditions enumerated therein though a same is rebuttable. The hypothesis might means legitimate means of nearing during an certain authorised conclusion. While a law or fact is known, in a opinion, there is no need or room for any presumption. Where there is justification to a contrary, a hypothesis is rebuttable and contingency produce to proof. Interest of probity is best served by ascertaining a law and a probity should be furnished with a best accessible scholarship and might not be left to bank on presumptions, unless scholarship has no answer to a contribution in issue. In a opinion, when there is a dispute between a decisive explanation envisaged underneath law and a explanation formed on systematic enrichment supposed by a universe village to be correct, a latter contingency overcome over a former.
16. It appears that in a aforesaid decision, a D.N.A. news was perceived from Regional Forensic Science Laboratory, Nagpur and, therefore, an focus was filed by a mother for a re-test and afterwards a High Court destined for D.N.A. exam to be conducted during a Central Forensic Laboratory, Ministry of Home Affairs, Govt. of India during Hyderabad. In a benefaction box also, a news has been perceived from a pronounced laboratory during Hyderabd and this laboratory is deliberate to be a many allege laboratory in a matter.
Patna High Court FA No.524 of 1998 dt.19-05-2017
17. The Hon’ble Supreme Court in a box of Dipanwita Roy v. Ronobroto Roy, 2015(1) Supreme Court Cases 365 has hold during divide 17 as follows:
“17. The doubt that has to be answered in this case, is in honour of a purported infidelity of a appellant- wife. The respondent-husband has finished transparent and sure assertions in a petition filed by him underneath Section 13 of a Hindu Marriage Act, alleging infidelity. He has left to a border of fixing a person, who was a father of a masculine child innate to a appellant-wife. It is in a routine of substantiating his claim of infidelity that a respondent-husband had finished an focus before a Family Court for conducting a DNA exam that would settle either or not, he had fathered a masculine child innate to a appellant-wife. The respondent feels that it is usually probable for him to justify a allegations leveled by him (of a appellant wife’s infidelity) by a DNA test. We determine with him. In a view, though for a DNA test, it would be unfit for a respondent- father to settle and endorse a assertions finished in a pleadings. We are therefore confident that a instruction released by a High Court, as has been extracted hereinabove, was entirely justified. DNA contrast is a many legitimate and scientifically ideal means, that a father could use, to settle his avowal of infidelity. This should concurrently be taken as a many authentic, legitimate and scold means also with a wife, for her to plead a assertions finished by a respondent-husband, and to settle that she had not been unfaithful, unfaithful or disloyal. If a appellant- mother is right, she shall be current to be so.”
18. On a contrary, a schooled counsel, Mr. Choudhary for a respondent relied on a preference of Calcutta High Court upheld in First Appeal No.13 of 2011 antiquated 20.08.2013 that deals with about a condonation of check on a belligerent of adultery. It has been hold that a Patna High Court FA No.524 of 1998 dt.19-05-2017 enlarged overpower would advise condonation of a purported offence. This preference is not on a indicate of D.N.A. report.
19. The other preference is a preference of a Supreme Court AIR 1988 Supreme Court 2089. This preference also does not understanding with a D.N.A. test.
20. From examination of a conference probity judgment, it appears that a conference probity gave many importance on a justification of a mother in perspective of a sustenance as contained in Section 112 of a Evidence Act and has not deliberate during all a staid beliefs of law laid down by a Supreme Court. Moreover, a reason reserved by a conference probity for not relying on a D.N.A. exam news from conjectural Forensic Science Laboratory, Hyderabad is not excusable quite when a Hon’ble Supreme Court repeatedly, as quoted above, hold that this news is scientifically accurate and correct. Therefore, when a accurate and scold justification i.e. systematic justification is available, a probity is not compulsory to examine serve a correctness or differently of a news itself that is always hold to be accurate even by a Supreme Court. The systematic news per papers of a chairman can be examined by a probity though so distant D.N.A. exam is concerned, scholarship is now grown and in that matter, a probity can't have a conflicting opinion. The systematic news of D.N.A. news from a conjectural laboratory is to be Patna High Court FA No.524 of 1998 dt.19-05-2017 supposed as scold in perspective of a preference of a Supreme Court referred to above.
21. The leaned conference probity poorly found error in a news and tested a same in terms of Section 4 and 112 of a Evidence Act that he could not have done. Thus, we find that a D.N.A. exam i.e. paternity exam is genuine, current and excusable news and we also find that a son innate to a wife-respondent is not a son of a appellant.
22. So distant condonation is concerned, it is privately pleaded by a father that he was meditative that a mother respondent might come to him withdrawal unfaithful life. No doubt, he condoned a unfaithful life of a mother though there is a limit. When he found that now a child has been innate he afterwards filed a benefaction divorce case. Now therefore, it can't be pronounced that given he progressing condoned, a mother has got event to live a same life in future. Here, a father has been means to infer conclusively by systematic paternity exam that a child is not his son. Thus, a anticipating of a conference probity is hereby topsy-turvy and this indicate no. we is answered in foster of a appellant and conflicting a wife-respondent.
23. So distant this indicate is concerned, both a parties certified that they are vital alone given 27 years and it is not probable for them to live together. In such circumstances, a probity can't force them to live Patna High Court FA No.524 of 1998 dt.19-05-2017 together. Moreover, a belligerent on that a divorce fit was filed by a father has been proved. Now therefore, on this belligerent also, a appellant is entitled for a extend of direct of divorce.
24. So distant permanent subsistence is concerned, no justification is accessible before this court, therefore, if law permits, a mother might proceed suitable forum for permanent subsistence as supposing underneath Section 25 of a Hindu Marriage Act.
25. In a result, this First Appeal is allowed. The impugned visualisation and direct upheld by a conference probity is set aside and a plaintiff’s fit for divorce is intended and a direct of divorce is granted. The parties shall bear their possess cost.
(Mungeshwar Sahoo, J) Saurabh/-
CAV DATE 21.04.2017
Uploading Date 19.05.2017