ORISSA HIGH COURT : C U T T A C K
W.P.(C) NO.21149 OF 2014
In the matter of an application under Article 227 of the Constitution of India.
—————
AFR
Manas Kumar Kar : Petitioner
-Versus-
Smt. Binaya Mishra : Opp. Party
For petitioner : M/s. S.K.Padhi, Sr.Advocate,
S.R.Pattnaik, S.M.Dwibedy,
S.K.Nayak, P.K.Mohanty I. Khan
For O.P. : M/s.A.K.Jena, M.K.Acharya
A.K.Behera
PRESENT :-
THE HONOURABLE MR. JUSTICE BISWANATH RATH
Date of Hearing : 19.12.2019 : Date of Judgment : 10.01.2020
Biswanath Rath, J. This is an application under Article 227 of the
Constitution of India involving a challenge to the order dated
15.10.2014 under Annexure-8 being passed by the Judge, Family
Court, Cuttack in C.P. No.7/2006 thereby rejecting an application at
the instance of the petitioner-husband for issuing direction for
D.N.A. test involving the opposite party-wife arising out of the main
dispute for divorce being sought for by the husband, the petitioner.
2. Background involving the case is that the petitioner-
husband filed an application before the Family Court, Cuttack under
Section 12 of the Hindu Marriage Act to declare the marriage
2
between the petitioner and the respondent as void on the premises
that the wife-respondent had conceived and was already pregnant at
the time of marriage by a person other than the husband, which fact
was not within the knowledge of the petitioner at the time of
marriage. The husband filing the application alleged that even the
petitioner had no knowledge of pregnancy of the wife till actually the
child was born and the petitioner had not lived with her nor there is
any marital intercourse after discovery by the petitioner about the
fact that the respondent-O.P. was pregnant prior to her marriage by
somebody else. Husband alleged that the child was born on
26.11.2005, i.e., exactly six months and fifteen days after the date of
marriage in the Capital Hospital at Bhubaneswar. The opposite
party-wife after receiving notice in the Civil Proceeding No.7/2006
filed written statement denying the allegation at the instance of the
petitioner. This case involves a series of litigations in this Court.
W.P.(C) No.13750/2008 was moved by the husband challenging the
earlier order of the Family Court dated 18.8.2008 rejecting such
application filed by the husband praying for D.N.A. test to find out
the parentage of the child. The opposite party-wife filed W.P.(C)
No.5673/2008 challenging the order dated 31.3.2008 passed in
Misc. Case No.135/2006 arising out of the same Civil Proceeding
but the Family Court rejected her prayer for grant of maintenance
and only granted litigation expenses of Rs.500/-. Both the writ
3
petitions were disposed of by this Court by common order dated
30.1.2009. On the aspect of rejection of the application for D.N.A.
test by the husband, this Court directed that if after completion of
trial in the event an application is filed by the husband-petitioner for
D.N.A. test, the same shall be considered on merit afresh giving due
importance to the decision of the Hon’ble apex Court in Sharda vrs.
Dharmpal reported in AIR 2003 SC 3450. This Court further
directed for taking steps for early disposal of the Civil Proceeding
preferably within six months. So far as W.P.(C) No.5673/2008 is
concerned, the same Division Bench of this Court interfering with
the impugned order directed for payment of interim maintenance @
Rs.2000/- per month.
3. In the meantime, the matter again visited the High
Court through W.P.(C) No.6278 challenging the order dated
12.3.2010 where the Family Court rejecting the application of the
husband to summons Dr.Susama Mishra, Gynecologist of Capital
Hospital and the Centre Head of Vandana Luthras Slimming and
Beauty (VLCC) for examination and also to call for the documents
indicated in the petition, i.e., Bed-Head Ticket in respect of the wife.
This writ petition was disposed of by a Division Bench of this Court
thereby directing the Family Court, Cuttack to issue summons to
Dr.Susama Mishra while rejecting the application to summons the
Centre Head of VLCC by its order dated 16.3.2011. After the
4
proceeding was further undertaken and closure of evidence based on
the direction of this Court in the disposed of writ petitions bearing
W.P.(C) Nos.5673/2008 13750/2008, the petitioner again filed
petition dated 8.5.2014 with a prayer to have the D.N.A. test by
collecting blood sample from the petitioner, opposite party and the
child involved. Opposite party-wife filed objection to the said
application. It appears, the Family Court hearing both sides on the
aspect of D.N.A. test was pleased to reject the application by its
order dated 15.10.2014 resulting in filing of the present writ
petition.
4. Sri S.K.Padhi, learned senior counsel for the
petitioner-husband taking this Court to the evidence of P.W.1 to
P.W.8, the Doctor more particularly giving defence in relation to the
child getting birth after six months and odd days after the marriage
as a matured child and further taking this Court to the background
involving the allegation involving the case of divorce contended that
for the evidence unless there is a D.N.A. test conducted to find out
the paternity of the child, there cannot be effective adjudication of
the lis. On the premises that the marriage was solemnized on
11.5.2005 and the full-born, i.e., matured child born on 27.11.2005,
i.e. after six months and odd days, Sri Padhi, learned senior counsel
contended that the petitioner has a strong case to be decided
involving the D.N.A. test. Taking this Court to the direction of this
5
Court in the disposed of writ petition bearing W.P.(C)
No.13750/2008, Sri Padhi, learned senior counsel also contested
the impugned order on the premises of the observation in the
disposed of writ petition and for filing of the application for D.N.A.
test after the evidence is recorded looking to the defence from the
side of the husband as well as wife. Sri Padhi, learned senior
counsel for the petitioner on the premises of no rebuttal evidence
adduced by the wife in respect of allegation in the plaint on
detection of pregnancy on the date of delivery on 27.11.2005 in the
Capital Hospital, the cause of ignorance of the husband regarding
pregnancy of the wife, wife not moving to any Doctor during her
pregnancy accompanying the husband, keeping in view the material
evidence through P.W.1, the treating Doctor and Dr.Susama Mishra,
contended that there appears, there is a strong prima facie case for
D.N.A. test. It is also alleged that the Family Court failed in
appreciating the ground for D.N.A. test and thereby arriving at
wrong and illegal impugned order.
Sri Padhi, learned senior counsel for the petitioner
referring to the decisions of the Hon’ble apex Court in Dipanwita
Roy vrs. Ronobroto Roy : (2015) 1 SCC 365, Goutam Kundu vrs.
State of West Bengal another : (1993) 3 SCC 418 and Sharda
vrs. Dharmpal : AIR 2003 SC 3450 submitted that the petitioner
has otherwise a case supported by law of the land. Sri Padhi thus
6
made a prayer to this Court for interfering with the impugned order
and setting aside the same thereby issuing a direction to the Family
Court for conducting D.N.A. test through competent authority.
5. Sri A.K.Jena, learned counsel for the opposite party-
wife, on the other hand, taking this Court to the objection of the wife
to the allegation of the husband through the objection to the Civil
Proceeding as well as the objections by the wife to the application for
D.N.A. test, in the first instance, also in the second instance, further
taking this Court to the evidence led by the parties attempted to
justify the rejection of the application for D.N.A. test by the Family
Court, Sri Jena, learned counsel appearing for the O.P.-wife placed
reliance on series of decisions in Goutam Kundu vrs. State of
West Bengal another : AIR 1993 SC 2295, Nirakar Das vrs.
Gourhari Das others : 1995(I) OLR-526, Smt. Kamti Devi
another vrs. Poshi Ram : AIR 2001 SC 2226, Sharda vrs.
Dharmpal : AIR 2003 SC 3450, Renubala Moharana another
vrs. Meena Mohanty others : 2004 (I) OLR (SC)-616, Banarsi
Dass vrs. Teeku (Mrs) another : 100 (2005) CLT-73 (SC), Shyam
Lal alias Kuldeep vrs. Sanjeev Kumar others : AIR 2009 SC
3115, Bhabani Prasad Jena vrs. Convenor Secretary, Orissa
State Commission for Women another : 2010 (II) OLR (SC)-575,
Chinmayee Mohanty @ Kamila vrs. Krushna Narayan Kamila :
2012(I) CLR-222, Narayan Dutt Tiwari vrs. Rohit Shekhar
7
another : (2012) 12 SCC 554, Nandlal Wasudeo Badwaik vrs.
Lata Nandlal Badwaik another : AIR 2014 SC 932 and
Dipanwita Roy vrs. Ronobroto Roy : (2015) 1 SCC 365 and for the
grounds involving rejection of the order attempted to justify the
impugned order.
6. Hearing the rival contentions of the parties, the
pleadings, the evidence and the material available on record as well
as the decisions cited from both sides, this Court finds, in filing the
Civil Proceeding No.7/2006 involving the divorce under Section 12 of
the Hindu Marriage Act, the petitioner in paragraphs-3, 4 5 has
made the following specific allegations.
“3. That the petitioner had also no knowledge of
the pregnancy of the respondent till actually the child was
born and the petitioner has not lived with her nor there is
any marital intercourse with the respondent after
discovery by the petitioner about the fact that the
respondent was pregnant prior to her marriage by
somebody else. The child of the respondent was born on
26.11.2005, i.e., six months and fifteen days after the date
of marriage at Capital Hospital, Bhubaneswar.
4. That it is humbly submitted and reiterated
that the petitioner was not aware of the fact of pregnancy
of the respondent on the date of marriage and after the
marriage till the child was born on 26.11.2005 and after
giving birth to the illegitimate child, the respondent is
living with her parents at Cuttack.
5. That it is humbly submitted that the marriage
between the petitioner and the respondent was an
arranged marriage and the petitioner did not know the
family of the respondent nor had any acquaintance with
any of her near relatives and had no scope to know about
the past of the respondent.”
8
This apart, paragraph-6 also discloses that based on a matrimonial
advertisement in “The Samaj” inviting petitioner’s marriage, the
wife’s father showed interest and entered into negotiation. After the
formal visit, an interaction between the two families, the marriage
was fixed and that too before the marriage, the respondent-wife had
not interacted with him even after the marriage date was fixed.
Through telephonic conversation, the petitioner was assured by the
wife that she had no premarital affair and she was not pressurized
from her parents for marriage. The marriage was held on 11.5.2005.
In the meantime, on 1st June, i.e., few days after the marriage, a
person namely Bulu telephoned the petitioner and wanted to
disclose some facts about his wife. The petitioner was shocked to
hear the disclosures made by said Bulu. The husband specifically
averred that he came to know this only after eighteen days of the
marriage.
7. On perusal of the Civil Proceeding Petition, this
Court finds, the petitioner-husband has the specific allegation in
paragraphs-6.6 to 6.52 narrating his firm opinion on the premarital
relationship with the wife also disclosed that the family members
after coming to know the premarital affairs involving outsider with
the wife attempted to settle the matter by entering into amicable
divorce, which attempt was subsequently avoided counseling the
9
petitioner to undertake the exercise of divorce under Section 12 of
the Family Courts Act.
8. Opposite Party-wife in her written statement while
denying the allegation made by the husband submitted that the
allegations are not only false but also imaginary. She denied having
premarital relationship as well as premarital pregnancy. She while
denying to have given birth of child on 26.11.2005 contended that
petitioner by filing such false application attempted to brand the
child illegally and also to ill-repute the wife. She even denied the
husband’s claim that they were not known to each other previously.
She also claimed that the statement in paragraphs-6.15 to 6.52 to
be false. She claimed that the child born through them was not a
full-grown child and thus objected entertainability of the Section 12
of Family Courts Act petition. She has the specific claim that she got
pregnant for cohabitation with the petitioner and claimed that the
child born through them was a premature baby. With this pleading,
the wife claimed for dismissal of the case.
9. It appears, after the decision of this Court in W.P.(C)
No.13750/2005 and after the closure of the evidence, the petitioner
filed the petition asking the Family Court for having a D.N.A. test to
find the paternity of the child to have effective adjudication of the
dispute. Petitioner in Paragraphs-4, 5, 6 8 of the petition filed for
D.N.A. test submitted as follows :-
10
“4. That petitioner humbly submits that the
Opp.Party has never disclosed about her conceive and
she had been posed about monthly menstruation once in
each month.
That respondent had joined at Health Reduction
Centre namely at VLCC, Bhubaneswar to reduce her
weight of 10 Kg from 83 Kt on dtd.26.8.2005 (prior to
three month from the delivery). The respondent has also
admitted in her evidence regarding admission in VLCC.
Moreover the Opp. Party accompanied with
petitioner in Honeymoon trip at the places of Darjiling,
Gangtok from dtd.22.10.2005 to dtd.1.11.2005 for which
petitioner was no scope to ascertain about conceive of
respondent. But surprisingly Opp.Party gave birth to a
male child on dtd.27.11.2005 at the Capital Hospital i.e.
6 months and 15 days after the date of marriage and 6
months from the date of consummation. Since the
petitioner was unaware about pregnancy of the Opposite
Party and also Opp. Party had concealed her pregnancy
at the time of marriage of which suit for dissolution of
marriage was preferred under Section 12 of Hindu
Marriage Act to declare the marriage as void and nullity.
5. Furthermore, petitioner humbly submits that
the new born child took birth on dtd.27.11.2005 at about
4.50 A.M. in Capital Hospital. The new born baby was
matured one and was able to suck milk from mother’s
breast and also the baby was weighing 3 Kg as per
Exhibit-1/d and as per admitted evidence of treating
Doctor namely, Dr.Susma Mishra, PW-8.
Furthermore, petitioner humbly submits that
the child was not premature baby and the baby took
birth as fully matured baby weighing of 3 Kg. having
capacity for breast feeding. That due to full term (fully
matured baby) there was no need on the part of treating
Doctor to recommend for any treatment of the child. The
exhibited documents vide Exhibit-1 and Exhibit-1/d and
exhibited documents vide Exhibit-A and Exhibit-A/1
substantiated that the new born child was full term and
fully matured baby having weight of 3 Kg with normal
delivery.
11
6. Furthermore, plaintiff humbly submits that it
is established as per the evidence deposed by PW-1 and
PW-8 that the child was matured with full term baby. The
evidences of PW-1 to PW-8, Dr. Susama Mishra has
categorically admitted and deposed by adducing evidence
and by exhibiting relevant documents to substantiate the
new born child was matured having 3 Kg weight and new
born child was full term baby for which it is established
as per evidence on record such full term baby cannot
took birth within a span of 6 months and 15 days in any
manner.
8. Furthermore, petitioner humbly submits that
PW-8, Dr. Susama Mishra has categorically adduced in
paragraph-3 as follows :
“Para-3- I have not mentioned in Ext.1 the last
menstruation period of Binaya as she told me that she
was not sure about the date of the period of such last
menstruation. She had not showed me any medical
prescription issued earlier by any medical officer.”
Furthermore, PW-8 Dr.Susma Mishra has also
categorically admitted in Paragraph-4 of her examination
in chief that “the baby was a matured one and was able
to suck milk from Binaya’s breast.”
That PW-8 has also categorically deposed in
paragraph-5 of her examination in chief that a new born
baby which has remained in mother’s womb for 6 months
and 15 days would normally weigh 600 grams to 1000
grams.
Further P.W-8, Dr. Susama Mishra has
categorically admitted in paragraph-7 of her cross-
examination as follows :
Para-7 Ext-A, except the heading portion and
Ext.A/1 are in my handwriting. The signatures below
Ext.A are mine. The signature of Ext.A/1 is of Dr.
H.P.Ratha who had discharged the patient and I am
acquainted with his handwriting and signature. Ext.A/1
shows that the child was of 3 Kgs. Weight. There is no
mention of any treatment of new born baby in Ext.1/d.
the baby was not referred to any child specialist. Usually
in case of delivery of premature babies, the babies are
referred to child specialist for treatment. In Ext.1/d the
12
digit ‘2’ as regards the weight of the baby is not in my
handwriting. Originally I had written the weight of the
child as 3 Kgs., C.D.M.O., Bhubaneswar has enquired
about the addition of this digit ‘2’ in Ext.1/d pursuant to
the complaint of petitioner husband and during that
enquiry C.D.M.O. had asked me about such entry in
Ext.1/d and I had given a written report in this matter to
C.D.M.O. Since this baby was a healthy one, there was
no necessity for me to refer the case to any child
specialist. Exts.1 and 1/d show that this baby was a
matured and healthy one.
When I examined Binaya Kar for her delivery no
female relative of her was present with her. At that time
she had also not produced before me her previous
medical documents.”
Under aforesaid facts and circumstances, it is
conclusive evidence that new born child was of full term
baby weighing 3 Kgs. And also the said birth was not
premature birth.
That it is settled principle of law that it is proper
to conduct the DNA test after evidences adduced by
plaintiff. In the instant case, the DNA test is required to
find out parentage of child which will determine real
controversy between parties.”
In addition to the above, the petitioner-husband
filed written notes of argument thereby while demonstrating the
specific pleadings in the plaint also attempted to demonstrate the
evidence led by both sides.
10. In response to the above, the wife filed an objection.
Reading of the objection at Annexure-6 at the instance of the
respondent-wife, it appears, she has virtually denied all the
allegations involving the application seeking direction for D.N.A. test.
13
With the specific pleading on the birth of the child, Paragraphs-9
10 read as follows :-
“9. That admittedly marriage between both the
parties was solemnized on 11.5.2005 and as per the
customs of petitioner’s family, marriage was consummated
on the same day i.e. on 11.5.2005 after completion of
marriage. As per the statement of P.W.2 i.e. Manaswini
Panda, the sister of the petitioner in cross-examination
para-20 stated that “on the day of marriage of the parties
during evening time Chatruthi Homa was performed. On
that very day the parties slept together. Furthermore
Arnapurna Kar, P.W.4, the mother of the petitioner in
cross-examination para-16 stated that “on the day of
marriage of my son the Chatruthi Home was also done and
in that night my son and Binaya slept together in their
room and in our Brahmin family marriage is done at day
time”. Furthermore P.W.7 the father of the petitioner in
cross-examination para-14 stated that “the marriage of the
petitioner was conducted at day time. On 11.5.2005
Chatruthi Homa was completed and on the very day
petitioner and Opp.Party slept in the room. After marriage
till delivery Opp.Party stayed in our house.
10. That as per the statement of father, mother
and sister of the petitioner marriage was consummated on
11.5.2005. So the averment made by the petitioner, that
marriage was consummated on 16.5.2005 is absolutely
baseless story created by the petitioner himself. Law is well
settled that ” a new born baby, born alive 174 days after the
last possible date when intercourse with the husband could
have taken place, and which survived, was held to be
legitimate”.
It is respectfully submitted here that intercourse
by the husband admittedly held on 11.5.2005 and new born
child was born on 27.11.2005 so from the date of
intercourse till delivery of the child i.e. 201 days (six
months and twenty one days). The medical theory says 174
days held to be legitimate but in the present case child was
born on 201 days so the child is held to be legitimate.”
From reading of the cross-examination of D.W.1,
this Court finds, in paragraph-23 the wife has deposed as follows :-
14
“23. It is not a fact that I have not mentioned in
the FIR lodged in Madhupatana P.S. that after birth of my
child from the hospital my husband saying that my child
did not belong to him, left me since then. It is not a fact
that after birth of my child my husband has never come to
me nor kept relationship with me in any manner till filing of
this case. My marriage took place on 11.5.2005 and my
child was born on 27.11.2005. It is not a fact that during
my stay in my in-laws house I have never disclosed before
anybody about my pregnancy. Rather I was disclosing
before others that I have having monthly menstruation
regularly. During my stay in my in-laws house, I was
visiting VLC. People used to go there to reduce their health
and to maintain their beauty. It is not a fact that out of my
sweet will I was going to VLCC in the month of August,
2005 to reduce my health, but not being pressurized by my
husband. It is not a fact that nobody from my in-laws family
was present at the time of my delivery and that in the
hospital before my sister Bijaya I confessed that my said
child born to me was through my boy friend Deepak Sahu @
Bulu for which I would donate that child to the nurshing
sister. I am prepared for DNA test, if the petitioner is willing
for that. It is not a fact that I have manufactured the X-ray
plates relating to my child filed in this case and that since I
had concealed before others about my conception I agreed
to go with my husband to Darzling. I had gone at that time
being pressurized by my husband. It is not a fact that it was
my pleasure trip then to go to Darzling.”
11. Similarly from the evidence of P.W.1 to P.W.8, it also
becomes clear that the child born was not only matured but was
also a full-term baby. P.W.8, Dr.Susama Mishra in paragraphs-3, 4,
5 7 of her chief averred as follows :-
“3. I have not mentioned in Ext.1 the last
menstruation period of Binaya as she told me that she
was not sure about the date of the period of such last
menstruation. She had not shown me any medical
prescription issued earlier by any medical officer.
15
4. As the aforesaid baby ticket the child was
weighing 2 Kgs. and 300 grams. The baby was a matured
one and was able to suck milk from Binaya’s breast.
5. A new born baby which has remained in
mother’s womb for 6 months and 15 days would normally
weigh 600 grams to 1000 grams.”
7. Ext.A, except the heading portion and Ext.A/1
are in my handwriting. The signatures below Ext.A are
mine. The signature in Ext.A/1 is of Dr.H.P.Ratha, who
had discharged the patient and I am acquainted with his
handwriting and signature. Ext.A/1 shows that the child
was of three Kgs. weight. There is no mention of any
treatment of new born baby in Ext.1/d. The baby was not
referred to any child specialist. Usually in case of delivery
of premature babies, the babies are referred to child
specialist for treatment. In Ext.1/d the digit ‘2’ as regards
the weight of the baby is not in my handwriting.
Originally I had written the weight of the child as 3 Kgs.
C.D. M.O., Bhubaneswar has enquired about the
addition of this digit ‘2’ in Ext.1/d pursuant to the
complaint of petitioner husband and during that enquiry
C.D.M.O. had asked me about such entry in Ext.1/d and
I had given a written report in this matter to C.D.M.O.
Since this baby was a healthy one there was no necessity
for me to refer the case to any child specialist. Exts.1 and
1/d show that this baby was a matured and healthy one.
It is not a fact that as Binaya Kar cried before me saying
that she had given birth to this child six and half months
after her marriage, I to favour her furnished reports
concealing truth. When I examined Binaya Kar for her
delivery no female relative of her was present with her. At
that time she had also not produced before me previous
medical documents.”
12. Looking to the pleading and evidence of the parties,
this Court finds, there remains no dispute that the marriage
between the parties held on 11.5.2005 and the child as per the
Medical Certificate got birth on 27.11.2005 thereby leaving no doubt
16that the child was born after six months and 17 days of the
marriage. Doctor’s evidence also makes it clear that the child born
through the wife was a full-born baby even doctors have gone to the
extent of establishing that in case of premature baby, the weight of
such baby would be at a very lower side. It becomes clear that the
Civil Proceeding was filed for divorce under Section 12 of the Hindu
Marriage Act on the pretext of premarital relationship of the wife
with a person other than the husband and the full-born child having
got birth after six months and 15 days of the marriage.
13. Considering the contentions of the parties that for
the provision at Section 112 of the Evidence Act, no D.N.A. test is
required as the child born after the period prescribed will be
presumed to be a legitimate child and for the opinion of this Court,
this provision has no application to the case at hand for the peculiar
admitted position involved herein clearly establishing that the child
got birth hardly six months and odd days after the date of marriage.
14. This being the position, this Court is now to proceed
to examine the decisions cited at Bar by both the parties to come to
a conclusion as to the need of a D.N.A. test in the circumstance.
In the case of Gautam Kundu (supra), Hon’ble apex
Court in paragraphs-18, 24 26 observed as follows :-
“18. Blood grouping test is a useful test to
determine the question of disputed paternity. It can be
relied upon by courts as a circumstantial evidence
17which ultimately excludes a certain individual as a
father of the child. However, it requires to be carefully
noted no person can be compelled to give sample of
blood for analysis against his/her will and no adverse
inference can be drawn against him/her for this
refusal.
24. This section requires the party disputing
the paternity to prove non-access in order to dispel the
presumption. “Access” and “non-access” mean the
existence or non-existence of opportunities for sexual
intercourse; it does not mean actual “cohabitation”.
26. From the above discussion it emerges-
(1) that courts in India cannot order blood test
as a matter of course ;
(2) wherever applications are made for such
prayers in order to have roving inquiry, the prayer for
blood test cannot be entertained.
(3) 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.
(4) The court must carefully examine as to
what would be the consequence of ordering the blood
test ; whether it will have the effect of branding a child
as a bastard and the mother as an unchaste woman.
(5) No one can be compelled to give sample of
blood for analysis.”
However, this case involving the marriage took place on 16th
January, 1990 and the wife conceived in the month of April, 1990,
i.e., after marriage and when she was residing in her matrimonial
home to appear in Higher Secondary Education commenced on 5th
April, 1990 and continued up to 10th May, 1990. There was abortion
taking place. She came back to the matrimonial home during Durga
18
Puja in the month of October, 1990 and a female child was born on
3rd January, 1991 and the case involved a petition under Section
125, Cr.P.C. involving consideration of a case for D.N.A. test. Facts
of course are not in the line of the case at hand.
The case of Sharda vrs. Dharmal (supra) involves a
divorce proceeding involving a case of mental illness requiring
medical examination of one of the parties and it has no application
to the case at hand for the change of facts involving the case. This
case involves D.N.A. test of a son born to the parties and again
involving the allegation of adulterous relationship to establish the
paternity/adultery of the child. In paragraphs-13, 16 17 of the
decision, Hon’ble apex Court held as follows :-
“13. The decision rendered by various courts of
this country including this Court lead to a conclusion that
a decree for divorce in terms of Section 13(1)(iii) of the Act
can be granted in the event the unsoundness of mind is
held to be not curable. A party may behave strangely or
oddly inappropriate and progressive in deterioration in the
level of work may lead to a conclusion that he or she
suffers from an illness of slow growing developing over
years. The disease, however, must be of such a kind that
the other spouse cannot reasonably be expected to live
with him or her. A few strong instances indicating a short
temper and somewhat erratic behavior on the part of the
spouse may not amount to his/her suffering continuously
or intermittently from mental disorder.
16. The Hindu Marriage Act or any other law
governing the field do not contain any express provision
empowering the Court to issue a direction upon a party to
a matrimonial proceedings to compel him to submit
himself to a medical examination. However, in our opinion,
this does not preclude a court from passing such an order.
19
We may, however, notice that such provisions have
expressly been inserted in England by way of Sections 22
and 23 of the Family Law Reform Act, 1987 on the
recommendations of the Law Commission. Section 23 is to
the following terms:
“23. Provisions as to scientific tests (1) For Sub-sections
(1) and (2) of Section 20 of the Family Law Reform Act,
1969 (power of court to require use of blood tests) there
shall be substituted the following subsections –
(1) In any civil proceedings in which the parentage of any
person falls to be determined, the court may, either of its
own motion or on an application by any party to the
proceedings, give a direction –
(a) for the use of scientific tests to ascertain whether such
tests show that a party to the proceedings is or is not the
father or mother of that person; and
(b) for the taking, within a period specified in the direction,
of bodily samples from all or any of the following, namely,
that person, any party who is alleged to be the father or
mother of that person and any other party to the
proceedings;
and the court may at any time revoke or vary a direction
previously given by it under this subsection.”
17. The English courts at one point of time held
that the Court had no power to order a blood test on the
ground that it would be a battery which no court may
authorize. (See S. v. S.W. v. Official Solicitor [1972] AC 24).
15. Coming to consider the citations at the instance of
the opposite parties, this Court finds, the decision in Nirakar Das
vrs. Gourhari Das (supra) has no application to the case at hand at
all. In the decision in Chinamayee Mohanty @ Kamila (supra), this
Court in its Division Bench in paragraph-16 therein held that before
ordering for D.N.A. test, the court must have arrived at a finding
20
that the applicant had a strong prima facie case and the court must
have sufficient material before it enables it to exercise its discretion.
It is for the Family Court not applying its mind to the above defect,
the Division Bench of this Court interfering with the order set aside
the same.
In case of Bhabani Prasad Jena (supra), Hon’ble
apex Court considering the requirement of D.N.A. test from the point
of view of extreme delicate and sensitive aspect in paragraphs-13
14 observed as follows :-
“13. 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 prejudicial 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. 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
21possible for the court to reach the truth without use of
such test.
14. 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. Insofar as the present case is concerned,
we have already held that the State Commission has no
authority, competence or power to order DNA. Looking to
the nature of proceedings with which the High Court was
concerned, it has to be held that High Court exceeded its
jurisdiction in passing the impugned order. Strangely, the
High Court over-looked a very material aspect that the
matrimonial dispute between the parties is already
pending in the court of competent jurisdiction and all
aspects concerning matrimonial dispute raised by the
parties in that case shall be adjudicated and determined
by that Court. Should an issue arise before the
matrimonial court concerning the paternity of the child,
obviously that court will be competent to pass an
appropriate order at the relevant time in accordance with
law. In any view of the matter, it is not possible to sustain
the order passed by the High Court.
In case of Banarsi Dass (supra), while deciding the
duty of court in ordering for D.N.A. test, Hon’ble apex Court in
paragraphs-10 13 held as follows :-
“10. In matters of this kind the court must have
regard to Section 112 of the Evidence Act. This section is
based on the well-known maxim pater est quem nuptiae
demonstrant (he is the father whom the marriage
22indicates). The presumption of legitimacy is this, that a
child born of a married women is deemed to be legitimate,
it throws on the person who is interested in making out
the illegitimacy, the whole burden of proving it. The law
presumes both that a marriage ceremony is valid, and
that every person is legitimate. Marriage of filiation
(parentage) may be presumed, the law in general
presuming against vice and immorality.
13. We may remember that Section 112 of the
Evidence Act was enacted at a time when the modem
scientific advancements with deoxyribonucleic acid (DNA)
as well as ribonucleic acid (RNA) tests were not even in
contemplation of the legislature. The result of a genuine
DNA test is said to be scientifically accurate. But even
that is not enough to escape from the conclusiveness
of Section 112 of the Act e.g. if a husband and wife were
living together during the time of conception but the DNA
test revealed that the child was not born to the husband,
the conclusiveness in law would remain irrebuttable. This
may look hard from the point of view of the husband who
would be compelled to bear the fatherhood of a child of
which he may be innocent. But even in such a case the
law leans in favour of the innocent child from being
bastardised if his mother and her spouse were living
together during the time of conception. Hence the
question regarding the degree of proof of non-access for
rebutting the conclusiveness must be answered in the
light of what is meant by access or non-access as
delineated above. (See Kamti Devi (Smt.) and Anr. v. Poshi
Ram (2001 (5) SCC 311).”
The decisions in Smt. Kamti Devi (supra) and
Renubala Moharana (supra) since stand on different footing and
have no application at all to the case at hand.
Paragraphs-21, 39, 40, 41 42 of the decision in
Shyam Lal alias Kuldeep (supra) read as follows :-
“21. In the impugned judgment, the High Court
observed that in the present case admittedly the plaintiff
23
and defendant no.4 were born to Smt. Durgi during the
continuance of her marriage with the deceased Balak
Ram. Therefore, in the absence of cogent and reliable
evidence as to non-access on the part of the deceased
Balak Ram, presumption under Section 112 of the Indian
Evidence Act would be available and it will have to be held
that plaintiff and defendants are sons of deceased Balak
Ram.
39. The findings of the High Court on the
interpretation of Section 112 of the Evidence Act are based
on correct analysis of Indian and English cases for the last
more than a century. According to the legislative intention
and spirit behind Section 112 of Evidence Act it is
abundantly clear that once the validity of marriage is
proved then there is strong presumption about the
legitimacy of children born out of that wedlock. The
presumption can only be rebutted by a strong, clear
satisfying and conclusive evidence. The presumption
cannot be displaced by mere balance of probabilities or
any circumstance creating doubt.
40. In the instant case, admittedly the plaintiff
and defendant no.4 were born to Smt. Durgi during the
continuance of her valid marriage with the deceased Balak
Ram. Their marriage was in fact never dissolved. There is
no evidence on record that the deceased Balak Ram at any
point of time did not have access to Smt. Durgi. According
to the clear interpretation of section 112 of the Evidence
Act, there is strong presumption about the legitimacy of
children born out of continuation of the valid marriage.
41. It is well settled principle of law that
Odiosa et inkonesta non sunt in lege prae sumenda
(nothing odious or dishonourable will be presumed by the
law). The law presumes against vice and immorality. In a
civilized society it is imperative to presume legitimacy of a
child born during continuation of a valid marriage and
whose parents had “access” to each other.
42. It is undesirable to enquire into paternity
of a child whose parents “have access” to each
other. Section 112 of the Evidence Act is based on
presumption of public morality and public policy.”
24
Paragraphs-15, 16, 17, 18 19 of the decision in
Nandlal Wasudeo Badwaik (supra) read as follows :-
“15. From a plain reading of the aforesaid, it is
evident that a child born during the continuance of a valid
marriage shall be a conclusive proof that the child is a
legitimate child of the man to whom the lady giving birth is
married. The provision makes the legitimacy of the child to
be a conclusive proof, if the conditions aforesaid are
satisfied. It can be denied only if it is shown that the
parties to the marriage have no access to each other at
any time when the child could have been begotten. Here,
in the present case, the wife had pleaded that the husband
had access to her and, in fact, the child was born in the
said wedlock, but the husband had specifically pleaded
that after his wife left the matrimonial home, she did not
return and thereafter, he had no access to her. The wife
has admitted that she had left the matrimonial home but
again joined her husband. Unfortunately, none of the
courts below have given any finding with regard to this
plea of the husband that he had or had not any access to
his wife at the time when the child could have been
begotten.
16. As stated earlier, the DNA test is an
accurate test and on that basis it is clear that the
appellant is not the biological father of the girl- child.
However, at the same time, the condition precedent for
invocation of Section 112 of the Evidence Act has been
established and no finding with regard to the plea of the
husband that he had no access to his wife at the time
when the child could have been begotten has been
recorded. Admittedly, the child has been born during the
continuance of a valid marriage. Therefore, the provisions
of Section 112 of the Evidence Act conclusively prove that
respondent No. 2 is the daughter of the appellant. At the
same time, the DNA test reports, based on scientific
analysis, in no uncertain terms suggest that the appellant
is not the biological father. In such circumstance, which
would give way to the other is a complex question posed
before us
25
17. We may remember that Section 112 of the
Evidence Act was enacted at a time when the modern
scientific advancement and DNA test were not even in
contemplation of the Legislature. The result of DNA test is
said to be scientifically accurate. Although Section
112 raises a presumption of conclusive proof on
satisfaction of the conditions enumerated therein but the
same is rebuttable. The presumption may afford legitimate
means of arriving at an affirmative legal conclusion. While
the truth or fact is known, in our opinion, there is no need
or room for any presumption. Where there is evidence to
the contrary, the presumption is rebuttable and must
yield to proof. Interest of justice is best served by
ascertaining the truth and the court should be furnished
with the best available science and may not be left to bank
upon presumptions, unless science has no answer to the
facts in issue. In our opinion, when there is a conflict
between a conclusive proof envisaged under law and a
proof based on scientific advancement accepted by the
world community to be correct, the latter must prevail
over the former.
18. We must understand the distinction
between a legal fiction and the presumption of a fact. Legal
fiction assumes existence of a fact which may not really
exist. However presumption of a fact depends on
satisfaction of certain circumstances. Those
circumstances logically would lead to the fact sought to be
presumed. Section 112 of the Evidence Act does not create
a legal fiction but provides for presumption.
19. The husband’s plea that he had no access
to the wife when the child was begotten stands proved by
the DNA test report and in the face of it, we cannot compel
the appellant to bear the fatherhood of a child, when the
scientific reports prove to the contrary. We are conscious
that an innocent child may not be bastardized as the
marriage between her mother and father was subsisting at
the time of her birth, but in view of the DNA test reports
and what we have observed above, we cannot forestall the
consequence. It is denying the truth. “Truth must
triumph” is the hallmark of justice.”
26
Through (2009) 12 SCC 454, it is observed that once
validity of marriage is proved then there is strong presumption
about the legitimacy of children born from that wedlock. The
presumption can only be rebutted by a strong, clear, satisfying and
conclusive evidence. Even the evidence of adultery by wife which
though amounts to very strong evidence, it by itself is not quite
sufficient to repeal this presumption and will not justify the finding
of illegitimacy if husband has had access.
(1993) 3 SCC 418 and AIR 2003 SC 3450 when did
not rule out the conducting of D.N.A. test, 2009 (12) SCC 454,
2010(8) SCC 633 and (2014) 2 SCC 576 find possibility of proof on
such allegations only through D.N.A. test. The classic difference in
between all the cases tested in the meantime and the case at hand is
where a husband challenges parentage of the child born after their
admitted marriage having born only after six months and 17 days
that too with specific case of the husband that he had no premarital
relationship with the wife, this Court is of the view that the only test
to prove such disputes is to have the D.N.A. test and in such
situation, there should not have obstruction on the part of the Court
to allow the application requiring direction for D.N.A. test. Further
the D.N.A. test being the only legitimate and scientifically perfect
means in the given situation to order for D.N.A. test is the only
remedy. Looking to the nature of dispute and required proof, this
27
Court also observes, such presumption can only be based on strong,
clear and cogent, lastly on satisfactory and conclusive evidence.
Thus there is no other way to go. It is here this Court records the
statement of wife in her cross-examination in paragraphs-19 to 24,
which reads as follows :-
“19. I am M.A. in Psychology. My marriage with
petitioner was an arranged one. There was no mediator in
my marriage. Prior to my marriage I was serving at
Mumbai. At Mumbai I was living in the house of my
father’s younger brother Pradipta Kumar Mishra. It is not
a fact that I have no such uncle and that at Mumbai I
was living alone in a mess. Myself and petitioner are
Brahmin caste. As per our custom Chaturthee is observed
on 4th day after marriage. But petitioner’s mother and
sister told me to observe my Chaturthee on the same day
as my marriage. In the night of 11.5.2005 for the first
time there was sexual cohabitation between me and
petitioner.
20. I have not filed any case for restitution of
my conjugal rights and to declare that my son has been
born out of my wedlock with petitioner. A Brahmin
married woman always wear a vermilion. Today I am not
wearing vermilion. It is not a fact that from the time of
filing the present case I am not wearing vermilion and
sankha. As I have given mukhagnee to my father I am not
wearing vermilion now. I have not lodged any F.I.R.
against petitioner and his family members alleging dowry
torture on me. Ext.2 is certified copy of F.I.R. lodged by
me at Madhupatna P.S. on 18.4.2007. The contents of
this F.I.R. are in my own hand. It is a fact that I have
indicated in this F.I.R. that on 27.11.2005 after I gave
birth to my child petitioner being influenced by his sister
tortured me physically and mentally and left me and my
child in my father’s house.
21. It is not a fact that from 27.1.2005 I have
not gone petitioner’s house at Nayapalli and from that I
am continuously living in my father’s house. As petitioner
had applied for the birth certificate of my son I had not
28
applied for it. It is not a fact that petitioner has never
applied for the birth certificate for my son. In the present
case, I have not filed that birth certificate. Ext.3 is my
signature in V.L.C.C. Health Care Limited receipt. A major
portion of the note book which is marked as Ext.4 is in
my handwriting. Exts.5 5/a to 5/1 are photographs
having my photograph. I cannot say if the document
marked ‘X’ is the certified copy of F.I.R. lodged by
petitioner at Nayapalli P.S. against me and others. The
persons appearing in the aforesaid photograph are
petitioner and his friends. The petitioner had forced me to
go to Darjling where these photographs have been taken.
These photographs were taken towards the end of
October. In Ext.5/g I am sitting on a yak.
22. I do not remember the date but in the
month of October, 2005, I had accompanied my husband
to Darjling. I have not filed the urine test report of mine
as the said report was in the house of the petitioner. All
the medical reports regarding my conception i.e. ultra
sound report etc. were with my husband for which I could
not file the same. It is not a fact that I have not
undergone any test regarding my conception, when I was
staying with my husband. I have not mentioned the date
of my LMP in my written statement. I had no
menstruation during my stay in my in-laws house after
marriage. One lady doctor delivered my child but I cannot
say if she was Dr.Sushama Mishra. The said lady doctor
talked with my husband about my predelivery test reports
if any. So the doctor did not ask me about the same. It is
not a fact that on being asked by the doctor, I could not
disclose my LMP before her. It is not a fact that the weight
of the new born child was 3 Kg. My delivery was a normal
one. But at the time of my delivery my private part was
stitched. It is not a fact that the new born child was not
referred to Pediatric Specialist for further management as
the child was a full grown child. It is not a fact that I have
manipulated Ext.1/d in the place of weight of the child
mentioned. It is not a fact that my child was not
prematurely born for which no advice was given by any
Pediatric consultancy and that his weight was not 2.3 Kg.
It is not a fact that I have not relied upon the documents
vide Ext.D to J in my W/S nor I had filed the same at the
time of filing of W/S and that after closure of evidence
from the side of the petitioner I having manufactured
29
those documents filed in the court subsequently. These
documents are relating to the period of post delivery of my
child. It is not a fact that the documents vide Ext.D to
Ext.H were beyond the knowledge of the petitioner and
the same were manufactured for the purpose of this case
and that Ext.J has also been manufactured by me.
23. It is not a fact that I have not mentioned in
the F.I.R. lodged in Madhupatna P.S. that after birth of
my child, from the hospital my husband saying that my
child did not belong to him left me since then. It is not a
fact that after birth of my child my husband has never
come to me nor kept relationship with me in any manner
till filing of this case. My marriage took place on
11.5.2005 and my child was born on 27.11.2005. It is not
a fact that during my stay in my inlaws house I have
never disclosed before anybody about my pregnancy.
Rather I was disclosing before others that I was having
monthly menstruation regularly. During my stay in my
inlaws house, I was visiting VLCC. People used to go there
to reduce their health and to maintain their beauty. It is
not a fact that out of my sweet will I was going to VLCC in
the month of August, 2005 to reduce my health, but not
being pressurized by my husband. It is not a fact that
nobody from my inlaws family was present at the time of
my delivery and that in the hospital before my sister
Bijaya I confessed that my said child born to me was
through my boy friend Deepak Sahu @ Bulu for which I
would donate that child to the nurshing sister. I am
prepared for DNA test if the petitioner is willing for that. It
is not a fact that I have manufactured the X-ray plates
relating to my child filed in this case and that since I had
concealed before others about my conception I agreed to
go with my husband to Darzling. I had gone at that time
being pressurized by my husband. It is not a fact that it
was my pleasure trip than to go to Darzling.
24. It is not a fact that on 26.11.2005 I had
gone to the hospital complaining stomach pain and till
the delivery of the child, neither the petitioner nor
anybody of his family was aware of the fact of my
pregnancy. It is not a fact that at the time of marriage,
there was no demand of dowry from the side of the
petitioner nor any gold ornaments or any other dowry
articles were given at the time of my marriage and that I
30
was never tortured in my inlaws home. I have not filed
any dowry torture case against the petitioner. It is not a
fact that on the day of marriage in the night I had no
cohabitation with the petitioner rather we had
cohabitation in the night of 16.5.2005. It is not a fact that
I had confessed before my husband over mobilephone
saying that I had conceived at Bombay through another
person. It is not a fact that during my stay in my inlaws
house I was taking medicine on the pretext of gastritis
and that prior to marriage I had conceived which was
beyond the knowledge of my husband and that I was not
undergoing any treatment regarding my pregnancy to the
knowledge of my husband and that I am staying presently
with Deepak Sahu at Puri and that my marriage is void
ab initio since from the beginning I had concealed before
my husband about the fact of my pregnancy prior to my
marriage and that since the petitioner is not the father of
my minor son, he is not entitled to get maintenance from
the petitioner and that I am deposing falsehood.”
For the clear denial of the wife through her evidence,
this Court again finds, no effective conclusion involving the issue
involved herein can be reached minus a blood test. Through her
evidence in paragraph-23, wife is ready for such test.
16. This Court on perusal of the order impugned finds,
not only the impugned order remains contrary to the legal position
settled through the above decisions but also in misapplication of
provision at Section 112 of the Evidence Act and also in proper
assessment of the evidence led by the parties. It is on the other
hand, the pleading of parties, the evidence led so far and the law of
land lean in favour of the petitioner.
31
17. This Court accordingly interfering with the
impugned order dated 15.10.2014 in C.P. No.7/2006 sets aside the
same and while allowing the application at the instance of the
husband-petitioner to have the D.N.A. test directs the D.N.A. test of
the son of the wife-O.P. to be conducted either at the Central or the
State Forensic Science Laboratory available in the State on 22nd
January, 2020. The wife will accompany the son to the Laboratory at
11 A.M. of the date fixed in the vehicle arranged at the cost of the
husband when the petitioner herein shall also be present to have his
blood sample to be drawn by the competent authority along with the
blood of the child and the wife. The entire expenses for the
procedure shall also be borne by the husband. Blood samples shall
be drawn in presence of all the three involved. The report of the Lab
shall be submitted to the Family Court within ten days thereafter.
At the same time, keeping in view that there is
possibility of attempt of tarnishing the prestige of the wife as well as
the child involved by the husband, the husband is directed to
deposit a sum of Rs.2,00,000/- (rupees two lakh) in the Family
Court before the date fixed for drawing blood sample. It is clarified
that in the event the husband succeeds, the entire amount with
interest accrued thereon will be refunded to the husband and in the
event the wife succeeds, the entire sum with interest accrued will be
distributed equally amongst the wife and the son involved.
32
This court also makes it clear that the observation
whatsoever made herein above is only in respect of present
consideration and the finality of the proceeding will be dependent on
pleadings and materials available on record.
18. The writ petition succeeds. In the circumstance,
there is no order as to cost.
…………………………
Biswanath Rath, J.
Orissa High Court, Cuttack.
The 10th January, 2020/mkr, sr.secy.
