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Rajesh Kumar Chaudhary vs Smt. Sarita on 19 July, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.

Reserved on: 02.07.2019

Delivered on: 19.7.2019

Court No. – 34

Case :- FIRST APPEAL No. – 276 of 2012

Appellant :- Rajesh Kumar Chaudhary

Respondent :- Smt. Sarita

Counsel for Appellant :- S.N. Pandey,Ashok Nath Tripathi,Havaldar Verma

Counsel for Respondent :- Namwar Singh,Sanjiv Singh

Hon’ble Sudhir Agarwal,J.

Hon’ble Rajeev Misra,J.

(Delivered by Hon’ble Rajeev Misra, J.)

1. This plaintiff’s Appeal under Section 19 of Family Courts Act 1984 (hereinafter referred to as the Act of 1984) filed by Rajesh Kumar Chaudhary (husband) challenging judgement dated 27.03.2012 and decree dated 10.04.2012 passed by the Principal Judge (Family Court), Varanasi in Petition No. 360 of 2004 (Rajesh Kumar Chaudhary Vs. Savita) whereby aforesaid petition for divorce filed by the plaintiff-appellant under Section 13 (1) of Hindu Marriage Act 1955 (hereinafter referred to as the Act of 1955) has been dismissed.

2. We have heard Mr. Ashok Nath Tripathi, learned counsel for plaintiff-appellant and Mr. Sanjiv Singh, learned counsel representing defendant-respondent.

3. The plaint case set up by plaintiff-appellant is that marriage of plaintiff-appellant was solemnized with defendant-respondent on 03.06.1994 in accordance with Hindu Rites and Customs. Defendant-respondent came to the house of plaintiff once or twice and again back to her parental home. The defendant-respondent never established conjugal relationship with plaintiff-appellant at her marital home. According to plaintiff-appellant it was disclosed by defendant-respondent to him that her marriage has been solemnized with plaintiff-appellant, forceably, and contrary to her wishes, whereas she has already surrendered physically and mentally to another person. Whenever defendant-respondent came to her marital home, she never stayed for more than three or four days nor established conjugal relationship with plaintiff-appellant. In order to make married life happy plaintiff-appellant made many efforts to resolve deadlock but in vain. However, looking at the prestige of his family, plaintiff-appellant kept quiet. The defendant-respondent came to her marital home on 04.06.1994 and after staying about three days, went to her parental home on 07.04.1994 in the company of her brother and relatives. Thereafter, plaintiff-appellant and his family members made continuous efforts to bring her back. Ultimately, after expiry of a period of three years, defendant-respondent came to her marital home on 10.03.1997. After staying for about three or four days with the family of plaintiff-appellant, she again went to her parental home. All this time she did not discharge her obligations as wife of the plaintiff-appellant and while returning to her parental home, she took away all jewelry and stridhan. A letter was sent by father of defendant-respondent to father of plaintiff-appellant that a daughter has been born to defendant-respondent on 01.03.1998 who has been named as Vibhushita @ Prachi. On recipt of this information, plaintiff-appellant was astonished as no child could be born out of the wedlock of plaintiff-appellant with defendant-respondent as there was no conjugal relationship between the two. However, considering the prestige and grace of the family and himself, he did not raise voice and kept quiet. Plaintiff-appellant, inspite of the aforesaid, requested defendant-respondent to improve her conduct but she failed. The family of plaintiff-appellant did not want to leave defendant-respondent as defendant-respondent was blessed with a girl child who is loved by all. Plaintiff-appellant and his family members were unaware of the truth and inspite of the humiliation faced by them at the behest of defendant-respondent, they kept quiet. Ultimately, as per the wishes of his family members, plaintiff-appellant met defendant-respondent and her family members again on 02.07.2004 to bring her back to her marital home but she refused. She again stated that she has wrongly been married to the plaintiff-appellant. On account of aforesaid conduct of defendant-respondent, plaintiff has suffered physical and mental cruelty at the hands of the defendant-respondent and hence the suit for divorce.

4. The suit for divorce filed by plaintiff-appellant was contested by defendant-respondent. Accordingly, she filed a written statement (Paper No. 25 Ka.) whereby she not only denied plaint allegations but also raised additional pleas. According to defendant-respondent, the divorce petition was filed only to harass defendant-respondent and her family members and further to solemnize second marriage. As such the divorce petition was liable to be dismissed. The defendant-respondent further stated that after marriage, she came to her marital home and stayed at her marital home in a cordial atmosphere with the plaintiff-appellant and other family members. After sometime, defendant-respondent came to her parental home. However, plaintiff-appellant as well as his family members refused to bring back defendant-respondent on the ground that they want to take defendant-respondent to Bombay. However, as the Flat in Bombay was too small they were making every effort to purchase a new Flat for which there was a deficiency of Rs.5 lacs. As such, it was stated by plaintiff-appellant and his family members that either the parents of defendant-respondent should give a sum of Rs.5 lacs immediately or wait for such time till new Flat is purchased in Bombay. After expiry of a period of two and a half years no information regarding the purchase of a Flat in Bombay was given nor any attempt was made to bring back defendant-respondent to her marital home. In the aforesaid circumstances, parents of defendant-respondent started exerting pressure upon Mahendra Pratap Singh (the mediator of the marriage), Samar Bahadur Singh and other relatives to pressurize plaintiff-appellant and his family members to take back defendant respondent to her marital home. On this plaintiff-appellant and his father brought defendant-respondent to their home in Village Barahi Kalan, District-Varanasi and started exerting pressure upon the defendant-respondent for the payment of Rs. 5 Lacs by her father. The defendant-respondent spent a period of one month with plaintiff-appellant in a cordial atmosphere. Consequently, conjugal relationship between the parties was established. Out of the cohabitation of defendant-respondent and plaintiff-appellant, she came in family way. Ultimately, defendant-respondent gave birth to a daughter namely Vibhushita @ Prachi on 01.03.1998.

5. The entire family of plaintiff-appellant resides in Bombay. At Village Barahi Kalan only family of the uncle of plaintiff-appellant resides and looks after the house and agriculture fields of the plaintiff-appellant. The family of plaintiff-appellant comes to Village-Barahi Kalan twice or thrice in a year and after staying about a week or ten days they used to go back to Bombay. Whenever plaintiff-appellant used to come to Village-Barahi Kalan, he used to go to the house of defendant-respondent to meet her and also to look at his daughter. With the permission of father of defendant-respondent, plaintiff-appellant used to take defendant-respondent alongwith her daughter to Varanasi for a joyride and used to stay at Varanasi in a Hotel. In spite of the aforesaid cordial relations, plaintiff-appellant never agreed to take defendant-respondent to Bombay and the only reason assigned was shortage of space at Bombay. It was also stated that till a Flat is purchased in Bombay, defendant-respondent cannot be taken to Bombay. As defendant-respondent or her parents could not pay a sum of Rs. 5 Lakhs to plaintiff-appellant as such out of vengeance, they started levelling false and frivolous allegations against defendant-respondent and her family members. As the marriage of younger sister of defendant-respondent was scheduled to be held on 11.02.2005, therefore in order to create obstruction in the marriage and to tarnish image of the defendant-respondent and her family members, various uncalled for and baseless allegations were levelled. According to the defendant-respondent the plaintiff-appellant resides at Bombay where he has a laundary, Hotel and Beer Bar from which he has substantial income. Plaintiff-appellant wants to marry a fashionable girl and in pursuit of the aforesaid desire, he has filed divorce suit on unfounded and baseless allegations, which are wholly untruthfull. The defendant-respondent was always ready to reside with plaintiff-appellant and even on date she is ready to live with plaintiff-appellant. The defendant-respondent never refused to live with the plaintiff-appellant. Only because the demand of Rs. 5 Lakhs raised by plaintiff-appellant could not be satisfied by defendant-respondent or her parents, the plaintiff-appellant is not keeping defendant-respondent with him. The defendant-respondent was and is ready to reside with plaintiff-appellant alongwith her daughter and lead a happy married life. The defendant-respondent came to her parental home on five or six occasions and also went to her marital home, but ultimately came to her parental home in February 2005. Since then no effort has been made by the plaintiff-appellant to take her back and his daughter nor any proposal to that effect was made. Since no cause of action arises, the suit for divorce filed by the plaintiff-appellant is liable to be dismissed.

6. On the pleadings of the parties, Court below framed following issues for adjudication:

“i. Whether the defendant-respondent has not discharged her spousal obligations with the plaintiff-appellant, as averred in the plaint?

ii. Whether the defendant-respondent went to her father’s place against the wishes of the plaintiff-appellant, as averred in the plaint?

iii. Whether the daughter born to the defendant-respondent is out of the wedlock of the parties and on account of cohabitation of the parties, as averred in the plaint?

iv. Whether the plaintiff-appellant demanded Rs. 5 Lakhs from the defendant-respondent to purchase a Flat and for that, subjected her to cruelty by harassing her, as stated in the written statement?

v. Whether the plaintiff-appellant subjected the defendant-respondent to cruelty by levelling false charges against her and by indulging in loose talks with her, with an intent to create hurdles in the marriage of her younger sister and to tarnish her social prestige?

vi. Whether the plaintiff-appellant is entitled to get any relief?”

7. After the issues were framed, parties led evidence in support of their respective case. Plaintiff-appellant in order to prove his case adduced himself as P.W.-1, one Hira Lal as P.W.-2 and Vindhyavasini as P.W.-3. While P.W.-2 Hira Lal is the father of plaintiff-appellant P.W.-3 Vindhyavasini is a resident of Village of plaintiff-appellant. The plaintiff-appellant also adduced documentary evidence as is evident from page 11 of the certified copy of impugned judgement.

8. Similarly defendant-respondent in order to prove her defence, adduced herself as D.W.-1, Bindu Kanaujiya as D.W.-2, Baljeet as D.W.-3, Samar Bahadur Singh as D.W.-4 and Om Prakash Lal Srivastava as D.W.-5. D.W-2 Bindu Kannaujia is the daughter of the Mausi of defendant-respondent (sister of the mother of defendant respondent). D.W.4 Samar Bahadur Singh is the mediator of the marriage. Defendant-respondent also adduced documentary evidence to establish her defence. The same is learly recorded at page 11 of the certified copy of impugned judgement.

9. Court below on the basis of pleadings of the parties and evidence adduced, decided the issues so framed. Issue no.1 relates to the failure on the part of the defendant-respondent in establishing marital relationship with the plaintiff-appellant. Issue no.2 was framed to the effect as to whether defendant-respondent has gone with her father to her parental home contrary to the wishes of the plaintiff-appellant. Both the issues were decided together. The said issues were essentially framed to find out whether defendant-respondent has committed physical and mental cruelty upon plaintiff-appellant by her conduct. Court below concluded that as per testimony of D.W.-1 Sarita, it has been categorically established that after her marriage on 03.06.1994, she came to her marital home on 04.06.1994. While residing at her marital home, she duly discharged her obligations as wife and while she stayed at her marital home, there was not only cohabitation of the plaintiff-appellant and the defendant-respondent but there also established conjugal relationship between the two. Defendant-respondent came to her parental home only when she was sent (Vidai) by her in-laws. The defendant-respondent never came to her parental home out of her free will. Defendant-respondent in her testimony has deposed before Court below in a very natural manner and there is no such element in her testimony on the basis of which it could be discarded or the witness himself could be disbelived on account of being incredible. The manner in which this witness has detailed the chain of events which occurred from 04.06.1994 do not leave any room, to doubt her testimony. Apart from above, D.W.-2, Bindu Kannaujia, who is the daughter of the sister of mother of defendant-respondent has also supported the testimony of D.W.-1, Smt. Sarita. None of the family members of plaintiff-appellant has come forward to support the case of plaintiff-appellant or deposed before Court below in his favour. Apart from the aforesaid, Court below further found that in case the conduct of defendant-respondent was so unnatural as alleged by plaintiff-appellant, then, in that event, suit for divorce would not have been filed after about ten years from the date of marriage. This circumstance also reamined unexplained before Court below. On the aforesaid premise Court below concluded that plaintiff-appellant has failed to establish that defendant-respondent failed to establish marital relationship with plaintiff-appellant and defendant-respondent went to her parental home contrary to the wishes of the plaintiff-appellant. Consequently, the said issues were decided against plaintiff-appellant.

10. Issue no.3 relating to the birth of the girl child from the conjugal relationship of the plaintiff-appellant and defendant-respondent was decided against plaintiff-appellant. The necessity to frame this issue arose since plaintiff-appellant filed an application (Paper No. 42 Ga) for getting D.N.A test of minor girl. This application filed by the plaintiff-appellant was contested by defendant-respondent and accordingly, she filed her objections (Paper No. 5. Ga). On this application, Court below passed an order dated 28.10.2006 whereby it directed that the application (Paper NO. 42-Ga) shall be decided after oral evidence of parties is over. Subsequently, plaintiff-appellant filed another application dated 20.3.2012 praying therein that the application (Paper No. 42 Ga) be decided in the light of the order 28.10.2006. At this stage plaintiff-appellant appears to have approached this Court and this Court directed that the applicaion (Paper No. 42 Ga) be decided within a period of one month. Consequently, the aforesaid application was decided alongwith the divorce petition.

11. The basis of the application (Paper No. 42 Ga) was the pathological reports filed by plaintiff-appellant before Court below namely (Paper No. 32 Ga) and (Paper No. 34 Ga) vide list of documents which is (Paper No. 31 Ga). The said pathological reports show that the blood group of the plaintiff-appellant is A positive, that of the defendant-respondent is also A positive but the blood group of minor child is B positive. Drawing legal support from Modi’s Medical Jurisprudence, it was urged before Court below that the same is impossible. He has referred to Table-2 occurring under Chapter-VII (Examination of Biological Stains and Hair) of Modi’s Medical Jurisprudence, 21st Edition at page 108, which is quoted hereunder:-

Phenotypes of parents

Phenotypes of Children

Possible

Impossible

A x A

A and O

B and AB

A x B

A,B,O and AB

None

A x AB

A,B and AB

O

A x O

A and O

B and AB

B x B

B and O

A and AB

B x AB

A,B and AB

O

B x O

B and O

A and AB

AB x AB

A,B and AB

O

AB x O

A and B

AB and O

O x O

O

A,B and AB

12. Thus on the aforesaid premise, it was contended before Court below that the girl child has not been born out of the cohabitation and conjugal relationship of the parties and therefore, the necessity of getting a D.N.A. Test of the daughter namely Vibhushita @ Prachi.

13. The application Paper No. 42 Ga was objected to by defendant respondent. According to defendant-respondent, as per the provisions of Section 4 and 112 of Indian Evidence Act, the application (Paper No. 42 Ga) filed by plaintiff-appellant is liable to be rejected. There is no explanation by the plaintiff-appellant as to how the said pathological reports have been received by him when it is admitted case of plaintiff-appellant that the daughter was born on 01.03.1998 and prior to her birth plaintiff-appellant has not met defendant-respondent nor the defendant-respondent came to her marital home. Court below thus concluded that there is no such material on the basis of which D.N.A. Test of minor girl could be directed. Court below on the aforesaid factual premise, and coupled with the fact that the evidence on the record show that there was cohabitation of the parties and also establishment of conjugal relationship, the presumption arising out 112 of Indian Evidence Act was drawn against plaintiff-appellant. On facts, Court below further found that there is no such material on record to establish that after the marriage of parties, they were unable to meet each other and consequently, defendant-respondent could not have come in family way due to cohabitation of the plaintiff-appellant. Apart from the above, Court below further held that no D.N.A. Test can be directed to be held without the consent of the affected person who admittedly in this case was a minor and therefore, it was consent of the mother which was necessary. Court below further observed that plaintiff-appellant has not alleged any extra marital relationship of defendant-respondent, therefore, in the absence of any such allegation, application for getting D.N.A test of minor girl cannot be allowed. On the aforesaid premise, issue No.3 was decided against plaintiff-appellant.

14. Issue no.4 which was in respect of additional plea raised by defendant-respondent in her written statement alleging therein that the plaintiff-appellant demanded a sum of Rs. 5 lacs from defendant-respondent for purchase of Flat and the consequential cruel behavior on the part of plaintiff-appellant towards defendant-respondent. Issue no.5 related to the conduct of the plaintiff-appellant at the time of marriage of younger sister of defendant-respondent so as to malign her social status and thereby committing cruelty upon the defendant-respondent by making false and frivolous allegations against defendant-respondent. The said issues were decided in favour of plaintiff-appellant. Court below came to the conclusion that from the pleadings of parties, it is established that apart from the present litigation, a case under Sections 498A, 323, 504, 506 I.P.C. and Section ¾ Dowry Prohibition Act, P.S. Phoolpur, has come into existence pursuant to an F.I.R. Apart from the above, a case under Protection of Women from Domestic Violence Act has also been initiated which is pending. No application under order 41 Rule 27 C.P.C. has been filed bringing on record the subsequent developments in the aforesaid cases nor any statement of fact regarding the same has been made in the affidavit filed in support of the stay application. However, Court below on account of the deficiency in evidence of defendant-respondent concluded that even though criminal proceedings are pending but upto this stage it is not established that the plaintiff-appellant demanded a sum of Rs. 5 Lakhs for purchasing a Flat and in pursuit thereof committed cruelty upon the defendant-respondent. Apart from the above Court below relied upon the testimony of D.W.-1 that in the marriage of her younger sister no obstruction was made by the brothers of the plaintiff-appellant. As such both the issues came to be decided against defendant-respondent.

15. Issue no.6 was in respect of the relief which can be granted to the plaintiff-appellant. Court below upon appreciation of pleadings, oral and documentary evidence on record, concluded that plaintiff-appellant is not entitled to any relief and consequently suit of plaintiff-appellant for a decree of divorce was dismissed.

16. Feeling aggrieved by the judgement dated 27.03.2012 and decree dated 10.04.2012 passed by Principal Judge, Family Court, Varanasi, plaintiff-appellant has now approached this Court by means of present Family Court Appeal.

17. Mr. Ashok Nath Tripathi, learned counsel for plaintiff-appellant, in support of appeal, has vehemently urged before us that cruelty on the part of defendant-respondent against plaintiff-appellant was duly established and therefore, Court below has erred in law and fact in dismissing suit for divorce filed by plaintiff-appellant. To buttress his submission he has relied upon the judgement in Samar Ghosh Vs. Jaya Ghosh, 2007 (4) SCC 511. He further contends that the findings recorded by Court below on issue no.3 which related to the birth of a female child from the alleged conjugal relationship and cohabitation of plaintiff-appellant and the defendant-respondent was wrongly decided as inspite of an specific application filed by plaintiff-appellant for DNA test of female child, the same has not been allowed by Court below. The procedure so adopted by Court below has resulted in miscarriage of justice. He further contends that as per Modi’s Medical Jurisprudence, female child could not have been born out of the cohabitation of the plaintiff-appellant and defendant-respondent as the blood group of plaintiff-appellant is A positive and that of the defendant-respondent is also A positive whereas blood group of female child is B positive. According to learned counsel for plaintiff-appellant, D.N.A test alone could have decided parentage of minor daughter. To lend support his submission, he has relied upon the judgement in Dipanwita Roy Vs. Ronobroto Roy, 2015 (1) SCC 365. He lastly submits that the parties have been living separately since 02.07.2004 and therefore, the marriage has broken down irretrievably. He thus concludes that in view of the above the impugned judgement and decree passed by the Court below is liable to be set aside and the suit of the plaintiff-appellant for the grant of decree of divorce is liable to be decreed.

18. Sri Sanjiv Singh, learned counsel for respondent refuted above submissions and sought to support judgement of Court below on the findings recorded therein.

19. On the basis of the submissions urged by the learned counsel for the plaintiff-appellant, the following points of determination arise in the present appeal:

(a) Whether plaintiff-appellant has been able to establish cruelty on the part of defendant-respondent and therefore entitled to decree of divorce as prayed for in terms of Section 13 (1) (i-a) of the Act of 1955.

(b) Whether finding recorded by Court below on issue no.3 relating to the birth of the female child from the wedlock and cohabitation of the plaintiff-appellant and defendant-respondent is illegal perverse and erroneous.

(c) Whether there has been irretrievable break down of marriage as according to plaintiff-appellant, parties are living separately since 02.07.2004.

20. The term ‘cruelty’ has not been defined in Hindu Marriage Act 1955 (hereinafter referred to as “Act 1955”). Consequently, this term has been the subject matter of debate for long. However, recently a Division Bench of this Court in the case of Smt. Sarita Devi Vs. Sri Ashok Kumar Singh reported in 2018 (3) AWC 2328 has considered the question of cruelty in detail in paragraphs 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 27 and 29 which reads as under:-

“16. In Samar Ghosh vs. Jaya Ghosh (2007) 4 SCC 511 Court considered the concept of cruelty and referring to Oxford Dictionary defines ‘cruelty’ as ‘the quality of being cruel; disposition of inflicting suffering; delight in or indifference to another’s pain; mercilessness; hard-heartedness’.

17. In Black’s Law Dictionary, 8th Edition, 2004, term “mental cruelty” has been defined as, “a ground for divorce, one spouse’s course of conduct (not involving actual violence) that creates such anguish that it endangers the life, physical health, or mental health of the other spouse.”

18. The concept of cruelty has been summarized in Halsbury’s Laws of England, Vol.13, 4th Edition Para 1269, as under:

“The general rule in all cases of cruelty is that the entire matrimonial relationship must be considered, and that rule is of special value when the cruelty consists not of violent acts but of injurious reproaches, complaints, accusations or taunts. In cases where no violence is averred, it is undesirable to consider judicial pronouncements with a view to creating certain categories of acts or conduct as having or lacking the nature or quality which renders them capable or incapable in all circumstances of amounting to cruelty; for it is the effect of the conduct rather than its nature which is of paramount importance in assessing a complaint of cruelty. Whether one spouse has been guilty of cruelty to the other is essentially a question of fact and previously decided cases have little, if any, value. The court should bear in mind the physical and mental condition of the parties as well as their social status, and should consider the impact of the personality and conduct of one spouse on the mind of the other, weighing all incidents and quarrels between the spouses from that point of view; further, the conduct alleged must be examined in the light of the complainant’s capacity for endurance and the extent to which that capacity is known to the other spouse. Malevolent intention is not essential to cruelty but it is an important element where it exits.”

19. In 24 American Jurisprudence 2d, the term “mental cruelty” has been defined as under:

“Mental Cruelty as a course of unprovoked conduct toward one’s spouse which causes embarrassment, humiliation, and anguish so as to render the spouse’s life miserable and unendurable. The plaintiff must show a course of conduct on the part of the defendant which so endangers the physical or mental health of the plaintiff as to render continued cohabitation unsafe or improper, although the plaintiff need not establish actual instances of physical abuse. ”

20. One of the earliest decision considering “mental cruelty” we find is, N.G. Dastane v. S. Dastane (1975) 2 SCC 326, wherein Court has said:

“The enquiry therefore has to be whether the conduct charges as cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious for him to live with the respondent. ”

21. In Sirajmohmedkhan Janmohamadkhan v. Haizunnisa Yasinkhan and Anr. (1981) 4 SCC 250 Court said that a concept of legal cruelty changes according to the changes and advancement of social concept and standards of living. With the advancement of our social conceptions, this feature has obtained legislative recognition, that a second marriage is a sufficient ground for separate residence and maintenance. Moreover, to establish legal cruelty, it is not necessary that physical violence should be used. Continuous ill-treatment, cessation of marital intercourse, studied neglect, indifference on the part of the husband, and an assertion on the part of the husband that the wife is unchaste are all factors which lead to mental or legal cruelty.

22. In Shobha Rani v. Madhukar Reddi, (1988) 1 SCC 105, Court observed that word ‘cruelty’ has not been defined in Act, 1955 but legislature, making it a ground for divorce under Section 13(1)(i)(a) of Act, 1955, has made it clear that conduct of party in treatment of other if amounts to cruelty actual, physical or mental or legal is a just reason for grant of divorce. Cruelty may be mental or physical, intentional or unintentional. If it is physical, it is a question of fact about degree. If it is mental, the enquiry must begin as to the nature of cruel treatment and then as to the impact of such treatment on the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other, ultimately, is a matter of inference to be drawn by taking into account the nature of conduct and its effect on the complaining spouse. There may, however, be cases where conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or injurious effect on the other spouse need not be enquired into or considered. In such cases, cruelty will be established if conduct itself is proved or admitted. The absence of intention should not make any difference in the case, if by ordinary sense in human affairs, the act complained of could otherwise be regarded as cruelty.

23. In V. Bhagat v. D. Bhagat (Mrs.), (1994) 1 SCC 337 considering the concept of “mental cruelty” in the context of Section 13(1)(i)(a) of Act, 1984, Court said that it can be defined as conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party. It is not necessary to prove that mental cruelty is such as to cause injury to the health of other party. While arriving at such conclusion, regard must be had to the social status, educational level of parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is thus has to be determined in each case having regard to the facts and circumstances of each case.

24. In Chetan Dass v. Kamla Devi, (2001) 4 SCC 250, Court observed that matrimonial matters relates to delicate human and emotional relationship. It demands mutual trust, regard, respect, love and affection with sufficient play for reasonable adjustments with spouse. The relationship has to conform to the social norms as well. There is no scope of applying the concept of “irretrievably broken marriage” as a straitjacket formula for grant of relief of divorce but it has to be considered in the backdrop of facts and circumstances of the case concerned.

25. In Savitri Pandey v. Prem Chandra Panadey, (2002) 2 SCC 73, Court held that mental cruelty is the conduct of other spouse which causes mental suffering or fear to matrimonial life of other. Cruelty postulates a treatment of party to marriage with such conduct as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious to live with other party. Cruelty has to be distinguished from ordinary wear and tear of family life.

27. In Vinita Saxena v. Pankaj Pandit, (2006) 3 SCC 778 Court held that complaints and reproaches, sometimes of ordinary nature, may not be termed as ‘cruelty’ but their continuance or persistence over a period of time may do so which would depends on the facts of each case and have to be considered carefully by the Court concerned.

29. In Samar Ghosh vs. Jaya Ghosh (supra) Court said that though no uniform standard can be laid down but there are some instances which may constitute mental cruelty and the same are illustrated as under:

“(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.

(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.

(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.

(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.

(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.

(vi) Sustained unjustifiable conduct and behavior of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.

(vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.

(viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty.

(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day to day life would not be adequate for grant of divorce on the ground of mental cruelty.

(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill-conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behavior of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.

(xi) If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of his wife and similarly if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.

(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.

(xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.

(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.”

21. The aforesaid Division Bench judgement clearly explains different shades of ‘cruelty’ which by itself are sufficient enough to dissolve the marriage on the ground of cruelty. The aforesaid judgement also prescribes the mode as to how ‘cruelty’ has to be proved and in what decree it has to be proved so as to grant of decree of divorce on the ground of ‘cruelty’.

22. With the aid of the aforesaid material, Court has now to examine, whether plaintiff-appellant was able to successfully establish cruelty on the part of defendant- respondent and therefore, entitled to the decree of divorce on the aforesaid ground.

23. As already noted above, the aforesaid issue is decided by Court below against plaintiff-appellant on the findings which have been reproduced in paragraph – 8 of this judgement. So unless counsel for plaintiff-appellant is able to show that the findings recorded by Court below in respect of the aforesaid issue are illegal, perverse or erroneous, the findings so recorded by Court below on the aforesaid issue cannot be reversed. The only submission urged by learned counsel for the appellant before us is that defendant-respondent did not stay at her matrimonial home nor did she discharge her marital obligations towards the plaintiff-appellant, causing physical and mental cruelty to the plaintiff-appellant. The submissions so made appeared to be attractive at the first flush. However, on deeper scrutiny we find that the case of plaintiff-appellant stood totally demolished in view of the testimony of D.W.-1 and D.W.-2. Even testimony of P.W. 2 Hira Lal who is the father of plaintiff-appellant, does not prove plaint allegations. His testimony is vague and therefore, not worthy of being relied upon. As such Court below disbelieved the case of plaintiff-appellant by recording findings, which we have already noted herein above. Since nothing substantial was placed before us to dislodge the findings on the aforesaid issue, the challenge laid to the aforesaid findings is an half hearted attempt which must fail. Accordingly, we reject the same.

24. Coming to the second point of determination, we find that the Court below rejected application (Paper NO. 42 Ga) filed by the plaintiff-appellant for getting D.N.A. Test of the girl child. Court below upon consideration of the entire material on record concluded that plaintiff-appellant has failed to establish as to how pathological reports relied upon by him were obtained by him when admittedly the daughter was born on 01.03.1998 and prior to her birth, plaintiff-appellant did not meet defendant-respondent nor defendant-respondent came to her marital home. On this factual premise, Court below concluded that there was no basis for allowing the application (Paper No. 42 Ga). Court below thus concluded that there is no such material on the basis of which D.N.A. Test of the minor girl could be directed. Court below on the aforesaid factual premise, and coupled with the fact that evidence on record show that there was cohabitation of the parties and also establishment of conjugal relationship, the presumption arising out 112 of Indian Evidence Act was drawn against plaintiff-appellant. On facts, Court below further found that there is no such material on record to establish that after the marriage of parties, they were unable to meet each other and consequently, defendant-respondent could not come in family way in cohabitation of the plaintiff-appellant. Apart from the above, Court below further held that no D.N.A. Test can be directed to be held without the consent of affected person who admittedly in this case was a minor and therefore, it was consent of mother which was necessary. Court below further observed that plaintiff-appellant has not alleged any extra marital relationship of defendant-respondent, therefore, in the absence of any such allegation, application for getting D.N.A test of minor girl cannot be allowed. On the aforesaid premise, issue No.3 was decided against the plaintiff-appellant. The Court below further concluded that D.N.A. Test cannot be got conducted as a matter of Court and without the consent of the affected party.

25. Mr. Ashok Nath Tripathi, learned counsel for the plaintiff-appellant, has referred to the judgment in Dipanwita Roy Vs. Romobroto Roy (Supra) and on the basis thereof, he submits that since wife objected to the application filed by plaintiff appellant for getting the D.NA. test of minor daughter conducted, an adverse presumption should be drawn against the defendant-respondent and on that basis suit of plaintiff-appellant for divorse is liable to be decreed.

26. Before proceeding to evaluate the submission urged by the learned counsel for the plaintiff-appellant, it shall be useful to refer to the provisions of section 4 and section 112 of Indian Evidence Act:

“Section-4

“May Presume”.- Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it.

“Shall presume”.- Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved.

“Conclusive proof”.- When one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it.

Section-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 eight 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.”

27. In Goutam Kundu Vs. State of West Bengal and another, 1993 (3) SCC 418, a two Judges Bench of Supreme Court considered the question regarding propriety of holding of blood group test to determine parentage of the child, and the following was observed in paragraphs 15, 16, 17, 18, 19, 20, 21, 22, 23, 24 and 25:

“15. In India there is no special statute governing this. Neither the Criminal Procedure Code nor the Evidence Act empowers the court to direct such a test to be made. In 1951 (1) Madras Law Journal p.58O Polavarapu Venkteswarlu, minor by guardian and mother Hanwnamma v. Polavarapu Subbayya in that case the application was preferred under section 151 of the Code of Civil Procedure invoking the inherent powers of the Court to direct a blood test. The learned judge was of the following view:-

Section 15 1, Civil Procedure Code, has been introduced in to the Statute book to give effect to the inherent powers. of Courts as expounded by Woodroffe, J., in Hukum Chand Boid v. Kamalan and Singh. Such powers can only be exercised ex debito justice and not on the mere invocation of parties or on the mere volition of courts. There is no procedure either in the Civil Procedure Code or in the Indian Evidence Act which provides for a test of the kind sought to be taken by the defendant in the present case. It is said by Mr. Ramakrishna for the respondent before m e that in England this sort of test is resorted to by Courts where the question of non-access in connection with an issue of legitimacy arises for consideration. My attention has been drawn by learned counsel to page 69 of Taylor’s Principles and Practice of Medical Jurisprudence, Volume 2, where it is stated thus :

“In Wilson v. Wilson, Lancet [1942] 1. 570, evidence was given that the husband’s group was OM, that the wife’s was BM and that the child’s was ABN. The Court held that the husband was not the father of child, and granted a decree for nullity.”

“It is also pointed out by learned counsel that in the text books on Medical Jurisprudence and Toxicology by Rai Bahadur Jaising P. Moi, (8th Edition), at page 94, reference is made to a case decided by a Criminal Court at Mercare in June, 194 1, in which the paternity and maternity of the child being under dispute, the Court resorted to the results of the blood grouping test.”

That may be. But I am not in any event satisfied that if the parties are unwilling to offer their blood for a test of this kind this Court can force them to do so.”

16. The same view was taken by the Kerala High Court in Vasu v. Santha 1975 Kerala Law Times p. 533 as

“A special protection is given by the law to the status of legitimacy in India. The law is very strict regarding the type of the evidence which can be let in to rebut the presumption of legitimacy of a child. Even proof that the mother committed adultery with any number of men will not of itself suffice for proving the illegitimacy of the child. If she had access to her husband during the time the child could have been begotten the law will not countenance any attempt on the part of the husband to prove that the child is not actually his. The presumption of law of legitimacy of a child will not be lightly repelled. It will not be allowed to be broken or shaken by a mere balance of probability. The evidence of non-access for the purpose of repelling it must be strong, distinct, satisfactory and conclusive see Morris v. Davies, (1837) 5 Cl. Fin. 163. The standard of proof in this regard is similar to the standard of proof of guilt in a criminal case. These rigours are justified by considerations of public policy for there are a variety of reasons why a child’s status is not to be triffled with. The stigma of illegitimacy is very severe and we have not any of the protective legislations as in England t o protect illegitimate children. No doubt, this may in some cases require a husband to maintain children of whom he is probably not their father. But, the legislature alone can change the rigour of the law and not the court. The court cannot base a conclusion on evidence different from that required by the law or decide on a balance of probability which will be the result if blood test evidence is accepted.

There is an aspect of the matter also. Before a blood test of a person is ordered his consert is required. The reason is that this test is a constraint on his personal liberty and cannot be carried out without his consent. Whether even a legislature can compel a blood test is doubtful. Here no consent is given by any of the respondents. It is also doubtful whether a guardian ad litem can give this consent. Therefore, in these circumstances, the learned Munsiff was right in refusing the prayer for a blood test of the appellant and respondents 2 and 3. The learned Judge is also correct in holding that there was no illegality in refusing a blood test. The maximum that can be done where a party refuses to have a blood test is to draw an adverse inference (see in this connection Subayya Gounder v. Bhoopala, AIR 1959 Madras 396, and the earlier decision of the same court in Venkateswarlu v. Subbayya AIR 1951 Madras 910. Such an adverse inference which has only a very little relevance here will not advance the appellants case to any extent. He has to prove that he had no opportunity to have any sexual intercourse with the 1st respondent at a time when these children could have been begotten. That is the only proof that is permitted under S. II 2 to dislodge the conclusive presumption enjoined by the Section.”

17. In Hargavind Soni v. Ramdulari AIR 1986 MP at 57 held as:-

“The blood grouping test is a perfect test to determine questions of disputed paternity of a child and can be relied upon by Courts as a circumstantial evidence. But no person can be compelled to give a sample of blood for blood grouping test against his will and no adverse inference can be drawn against him for this refusal.”

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 which ultimately excludes a certain invididual 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 her will and no adverse inference can be drawn against her for this refusal.

19. In Raghunath v. Shardabai 1986 AIR Bombay 388, it was observed blood grouping test have their limitation, they cannot possibly establish paternity, they can only indicate its possibilities.

20. In Bhartiraj v. Sumesh Sachdeo Ors., 1986 AIR Allahabad 2591 held as:-

“Discussing the evidentiary value of blood tests for determining paternity, Rayden on Divorce, (1983) Vol. 1) p. 1054 has this to say

“Medical Science is able to analyse the blood of individuals into definite groups: and by examining the blood of a given man and a child to determine whether the man could or could not be the father. Blood tests cannot show positively that any man is father, but they can show positively that a given man could or could not be the father. It is obviously the latter aspect the proves most valuable in determining paternity, that is, the exclusion aspect for once it is determined that a man could not be the father, he is thereby automatically excluded from considerations of paternity. When a man is not the father of a child, it has been said that there is at least a 70 per cent chance that if blood tests are taken they will show. positively he is not the father, and in some cases the chance is even higher: between two giver men who have had sexual intercourse with. the mother at the time of conception, both of whom undergo blood tests, it has likewise been said that there is a 80 per cent chance that the tests will show that one of them is not the father with the irresistible inference that the other is the father.’

The position which emerges on reference to these authoritative texts is that depending on the type of litigation, samples of blood, when subjected to skilled scientific examination, can sometimes supply helpful evidence on various issues, to exclude a particular parentage set up in the case. But the consideration remains that the party asserting the claim to have a child and the rival set of parents put to blood test must establish his right so to do. The court exercises protective jurisdiction on behalf of an infant. In my considered opinion it would be unjust and not fair either to direct a test for a collateral reason to assist a litigant in his or her claim. The child cannot be allowed to suffer because of his incapacity; the aim is to ensure that he gets his rights. If in a case the court has reason to believe that the application for blood test is of a fishing nature or designed for some ulterior motive, it would be justified in not acceding to such a prayer.”

21. “The above is the dicta laid down by the various High Courts. 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 nuptioe demonstrant (he is the father whom the marriage indicates). The presumption of legitimacy is this, that a child born of a married woman 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, any that every person is legitimate. Marriage or filiation (parentage) may be presumed, the law in general presuming against vice and immoratility.”

22. It is a rebuttable presumption of law that a child born. during the lawful wedlock is legitimate, and that access occurred between the parents. This presumption can only be displaced by a strong preponderannce of evidence, and not by a mere balance of probabilities.

23. In Smt. Dukhtar Jahan v. Mohammed Faroog AIR 1987 SC 1049 this court held.

“Section II 2 lays down that if a person was born during the continuance of a valid marriage between his mother and any man or within two hundren and eighty days after its dissolution and the mother remains unmarried, it shall be taken as 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 anytime when he could have been begotten. This rule of law based on the dictates of justice has always made the courts incline towards upholding the legitimacy of a child unless the facts are so compulsive and clinching as to necessarily warrant a finding that the child could not at all have been begotten to the father and as such a legitimation of the child would result in rank injustice to the father. Courts have always desisted from lightly or hastily rendering a verdict and that too, on the basts of slender materials, which will have the effect of branding a child as a bastard and its mother an unchaste woman.”

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.

25. The effect of this section is this: there is a presumption and a very strong one though a reubttable one. Conclusive proof means as laid down under section 4 of the Evidence Act.”

28. Subsequently, a three Judges Bench in Sharda Vs. Dharmpal 2003 (4) SCC 493 considered the question regarding holding of Blood Group test to ascertain paternity of the child. The following was observed by Court in paragraphs 38, 39, 54, 55, 56, 58, 59, 60, 76, 79 and 80:

“38. In Goutam Kundu v. State of West Bengal and Anr. this Court while dealing with a question about the paternity of a child noticed the provision of Section 112 of the Evidence Act and held that the presumption arising thereunder can only be displaced by a strong preponderance of evidence and not by a mere balance of probabilities. It was held (SCC p. 428, para 26):

“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 having 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”.

39. Goutam Kundu (supra) is, therefore, not an authority for the proposition that under no circumstances the Court can direct that blood tests be conducted. It, having regard to the future of the child, has, of course, sounded a note of caution as regard mechanical passing of such order. In some other jurisdictions, it has been held that such directions should ordinarily be made if it is in the interest of the child.

54. The right to privacy has been developed by the Supreme Court over a period of time. A Bench of eight judges in M.P. Sharma v. Satish Chandra AIR at pp.306-07, para 8 in the context of search and seizure observed that:

“When the Constitution makers have though fit not to subject such regulation to constitutional limitations by recognition of a fundamental right to privacy, analogous to the American Fourth Amendment, we have no justification to import it, into a totally different fundamental right, by some process of strained construction”

55. Similarly in Kharak Singh v. State of UP., AIR 1963 SC 1295, the majority judgment observed thus: (AIR p. 1303, parsa 20)

“The right of privacy is not a guaranteed right under our Constitution and therefore the attempt to ascertain the movements of an individual which is merely a manner in which privacy is invaded is not an infringement of a fundamental right guaranteed by Part III.”

56. With the expansive interpretation of the phrase “personal liberty”, this right has been read into Article 21 of the Indian Constitution. [See R. Rajagopal v. State of Tamil Nadu and Ors.

95, People’s Union of Civil Liberties v. Union of India 97]. In some cases the right has been held to amalgam of various rights.

58. In Govind v. State of Madhya Pradesh and Anr., it was held:

“Assuming that the fundamental rights explicitly guaranteed to a citizen have penumbral zones and that the right to privacy is itself a fundamental right, that fundamental right must be subject to restriction on the basis of compelling public interest.”

59. If there were a conflict between fundamental rights of two parties, that right which advances public morality would prevail. [See Mr. ‘X’ v. Hospital ‘Z’ (1998) 8 SCC 296 and Mr. ‘X’ v. Hospital ‘Z’ 02]. In R. Rajagopal v. State of Tamil Nadu and Ors. this Court upon formulating six principles, however, hastened to add that they are only broad principles and neither exhaustive nor all comprehending and indeed no such enunciation is possible or advisable.

60. In Govind v. State of Madhya Pradesh and Anr. (supra) it was held:

“28. The right to privacy in any event will necessarily have to go through a process of case- by-case development. Therefore, even assuming that the right to personal liberty, the right to move freely throughout the territory of India and the freedom of speech create an independent right of privacy as an emanation from them which one can characterize as a fundamental right, we do not think that the right is absolute.”

76. The matter may be considered from another angle. In all such matrimonial cases where divorce is sought, say on the ground of impotency, schizophrenia…etc. normally without there being medical examination, it would be difficult to arrive at a conclusion as to whether the allegation made by his spouse against the other spouses seeking divorce on such a ground, is correct or not. In order to substantiate such allegation, the petitioner would always insist on medical examination. If respondent avoids such medical examination on the ground that it violates his/her right to privacy or for a matter right to personal liberty as enshrined under Article 21 of the Constitution of India, then it may in most of such cases become impossible to arrive at a conclusion. It may render the very grounds on which divorce is permissible nugatory. Therefore, when there is no right to privacy specifically conferred by Article 21 of the Constitution of India and with the extensive interpretation of the phrase “personal liberty” this right has been read into Article 21, it cannot be treated as absolute right. What is emphasized is that some limitations on this right have to be imposed and particularly where two competing interests clash. In mattes of aforesaid nature where the legislature has conferred a right upon his spouse to seek divorce on such grounds, it would be the right of that spouse which comes in conflict with the so-called right to privacy of the respondent. Thus the Court has to reconcile these competing interests by balancing the interests involved.

79. If despite an order passed by the Court, a person refuses to submit himself to such medical examination, a strong case for drawing an adverse inference would be made out Section 114 of the Indian Evidence Act also enables a Court to draw an adverse inference if the party does not produce the relevant evidences in his power an possession.

80. So viewed, the implicit power of a court to direct medical examination of a party to a matrimonial litigation in a case of this nature cannot beheld to be violative of one’s right of privacy.”

29. Thereafter, in Bhabani Prasad Jena Vs. Convenor Secretary, Orissa State Commission for Women, 2010 (8) SCC 633, Court considered the questions of right to privacy and when can a direction be given to hold a D.N.A. Test. The two judges Bench specifically dealt with the question regarding propriety of holding a D.N.A. Test in the light of the provisions contained in Section 112 of Indian Evidence Act. The following has been observed by the Court in paragraph 15, 16, 17, 18, 19, 20, 21, 22, 23:

“15. In Goutam Kundu v. State of West Bengal and Anr.1, this Court was concerned with a matter arising out of maintenance for child claimed by the wife. The husband disputed the paternity of the child and prayed for blood group test of the child to prove that he was not the father of the child. This Court referred to Section 4 and Section 112 of the Evidence Act and also the decisions of English and American Courts and some authoritative texts including the following statement made in Rayden’s Law and Practice in Divorce and Family Matters (1983), Vol. I, p. 1054 which reads thus:

“Medical Science is able to analyse the blood of individuals into definite groups; and by examining the blood of a given man and a child to determine whether the man could or could not be the father. Blood tests cannot show positively that any man is father, but they can show positively that a given man could or could not be the father. It is obviously the latter aspect that proves most valuable in determining paternity, that is, the exclusion aspect, for once it is determined that a man could not be the father, he is thereby automatically excluded from considerations of paternity. When a man is not the father of a child, it has been said that there is at least a 70 per cent chance that if blood tests are taken they will show positively he is not the father, and in some cases the chance is even higher; between two given men who have had sexual intercourse with the mother at the time of conception, both of whom undergo blood tests, it has likewise been said that there is a 90 per cent chance that the tests will show that one of them is not the father with the irresistible inference that the other is the father.”

16. This Court then finally concluded, thus :

“(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.”

17. In Sharda v. Dharmpal, 2003 (4) SCC 493, a three-Judge Bench was concerned with the question whether a party to the divorce proceedings can be compelled to a medical examination. That case arose out of an application for divorce filed by the husband against the wife under Section 13(1)(iii) of the Hindu Marriage Act, 1955. In other words, the husband claimed divorce on the ground that wife has been incurably of unsound mind or has been suffering from mental disorder. The Court observed,

“Goutam Kundu is, therefore, not an authority for the proposition that under no circumstances the Court can direct that blood tests be conducted. It, having regard to the future of the child, has, of course, sounded a note of caution as regards mechanical passing of such order. In some other jurisdictions, it has been held that such directions should ordinarily be made if it is in the interest of the child.”

18. While dealing with the aspect as to whether subjecting a person to a medical test is violative of Article 21 of the Constitution of India, it was stated that the right to privacy in terms of Article 21 of the Constitution is not an absolute right. This Court summed up conclusions thus : (2003) 4 SCC 493 ”

1. A matrimonial court has the power to order a person to undergo medical test.

2. Passing of such an order by the court would not be in violation of the right to personal liberty under Article 21 of the Indian Constitution.

3. However, the Court should exercise such a power if the applicant has a strong prima facie case and there is sufficient material before the Court. If despite the order of the court, the respondent refuses to submit himself to medical examination, the court will be entitled to draw an adverse inference against him.”

19. In Banarsi Dass v. Teeku Dutta Anr.3, this Court was concerned with a case arising out of succession certificate. The allegation was that Teeku Dutta was not the daughter of the deceased. An application was made to subject Teeku Dutta to DNA test. The High Court held that trial court being a testamentary court, the parties should be left to prove their respective cases on the basis of the evidence produced during trial, rather than creating evidence by directing DNA test. When the matter reached this Court, few decisions of this Court, particularly, Goutam Kundu1 was noticed and it was held that even the result of a genuine DNA test may not be enough to (2005) 4 SCC 449 escape from the conclusiveness of Section 112 of the Evidence Act like a case where a husband and wife were living together during the time of conception. This is what this Court said :

“13. We may remember that Section 112 of the Evidence Act was enacted at a time when the modern 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 Evidence 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.”

It was emphasized that DNA test is not to be directed as a matter of routine and only in deserving cases such a direction can be given.

20. Recently, in the case of Ramkanya Bai v. Bharatram4 decided by the Bench of which one of us, R.M. Lodha, J. was the member, the order of the High Court directing DNA of the child at the instance of the husband was set aside and it was held that the High Court was not justified in allowing the application for grant of DNA of the child on the ground that there will be possibility of reunion of the parties if such DNA was conducted and if it was found from the outcome of the DNA that the son was born out of the wedlock of the parties.

21. 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.

22. 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 possible for the court to reach the truth without use of such test.

23. 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 Sharda 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.”

30. In Nandlal Wasudeo Badwaik Vs. Lata Nandlal Badwaik and another, 2014 (2) SCC 576, Court considered the question of presumption in the light in section 4, section 101 to 117 of Indian Evidence Act and also the propriety of holding D.N.A. Test to judge the legitimacy of a child. The following was observed by Court in paragraphs 14, 15, 16, 17, 18 :

“14. Now we have to consider as to whether the DNA test would be sufficient to hold that the appellant is not the biological father of respondent no. 2, in the face of what has been provided under Section 112 of the Evidence Act, which reads as follows:

“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.”

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.

15. 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.

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.”

31. From the aforesaid judgement of the Apex Court, it is clear that once the order for D.N.A. Test has been passed and D.N.A test has been conducted, the result of D.N.A. Test cannot be brushed aside. The same will have to be given effect to even if the circumstances justifying attraction of presumption as contemplated under section 112 of Indian Evidence Act exists. This judgement therefore, does not directly deal with the issue in hand.

32. Coming to the judgement relied upon by learned counsel for the plaintiff-appellant i.e. Dipanwita Roy Vs. Ronobroto Roy (Supra), Court considered the question of the presumption arising out under section 112 and the necessity of holding D.N.A. test. The Court Bench referred to the provisions of Section 112 and thereafter observed as follows in paragraphs 9, 10, 11, 13, 14, 15, 17, 18:

“9. Learned counsel for the appellant-wife, in the first instance, invited our attention to Section 112 of the Indian Evidence Act. The same is being extracted hereunder:

“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.”

Based on the aforesaid provision, learned counsel for the appellant-wife drew our attention to decision rendered by the Privy Council in Karapaya Servai v. Mayandi, AIR 1934 PC 49, wherein it was held, that the word ‘access’ used in Section 112 of the Evidence Act, connoted only the existence 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 by a fiction of law, accepted the same as conclusive proof of the fact that the child born during the subsistence of the valid marriage, was a legitimate child. It was the submission of the learned counsel for the appellant-wife, that the determination of the Privy Council in Karapaya Servai’s case(supra) was approved by this Court in Chilukuri Venkateshwarly vs. Chilukuri Venkatanarayana, 1954 SCR 424.

10. Learned counsel for the appellant-wife also invited our attention to a decision rendered by this Court in Goutam Kundu vs. State of West Bengal and another, (1993) 3 SCC 418, wherein this Court, inter alia, held as under:

“(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 samle of blood for analysis.” Reliance was also placed on the decision rendered by this Court in Kamti Devi and another v. Poshi Ram, AIR 2001 SC 2226, wherefrom, the following observations made by this Court, were sought to be highlighted:

“9. But Section 112 itself provides an outlet to the party who wants to escape from the rigour of that conclusiveness. The said outlet is, if it can be shown that the parties had no access to each other at the time when the child could have been begotten the presumption could be rebutted. In other words, the party who wants to dislodge the conclusiveness has the burden to show a negative, not merely that he did not have the opportunity to approach his wife but that she too did not have the opportunity of approaching him during the relevant time. Normally, the rule of evidence in other instances is that the burden is on the party who asserts the positive, but in this instance the burden is cast on the party who pleads the negative. The raison d’etre is the legislative concern against illegitimatizing a child. It is a sublime public policy that children should not suffer social disability on account of the laches or lapses of parents.

10. We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancements with Dioxy Nucleric 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 unrebuttable. This may look hard from thepoint 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 bastardized 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.

11…..Its corollary is that the burden of the plaintiff-husband should be higher than the standard of preponderance of probabilities. The standard of proof in such cases must at least be of a degree in between the two as to ensure that there was no possibility of the child being conceived through the plaintiff-husband. ” (emphasis is ours)

11. Lastly, learned counsel for the appellant-wife, placed reliance on the decision rendered by this Court in Sham Lal @ Kuldeep vs. Sanjeev Kumar and others, (2009) 12 SCC 454, wherein it was inter alia, held as under:

“Once the 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. The presumption cannot be displaced by mere balance of probabilities or any circumstance creating doubt. Even the evidence of adultery by wife which though amounts to very strong evidence, it, by itself, is not quite sufficient to repel this presumption and will not justify finding of illegitimacy if husband has had access. In the instant case, admittedly the plaintiff and Defendant 4 were born to D during the continuance of her valid marriage with B. Their marriage was in fact never dissolved. There is no evidence on record that B at any point of time did not have access to D.” (emphasis is ours).

13. All the judgments relied upon by the learned counsel for the appellant were on the pointed subject of the legitimacy of the child born during the subsistence of a valid marriage. The question that arises for consideration in the present appeal, pertains to the alleged infidelity of the appellant-wife. It is not the husband’s desire to prove the legitimacy or illegitimacy of the child born to the appellant. The purpose of the respondent is, to establish the ingredients of Section 13(1)(ii) of the Hindu Marriage Act, 1955, namely, that after the solemnisation of the marriage of the appellant with the respondent, the appellant had voluntarily engaged in sexual intercourse, with a person other than the respondent. There can be no doubt, that the prayer made by the respondent for conducting a DNA test of the appellant’s son as also of himself, was aimed at the alleged adulterous behaviour of the appellant. In the determination of the issue in hand, undoubtedly, the issue of legitimacy will also be incidentally involved. Therefore, insofar as the present controversy is concerned, Section 112 of the Indian Evidence Act would not strictly come into play.

14. A similar issue came to be adjudicated upon by this Court in Bhabani Prasad Jena vs. Convenor Secretary, Orissa State Commission for Women and another, (2010) 8 SCC 633, wherein this Court held as under:

“21. In a matter where paternity of a child is in issue before the court, the use of DNA test is an extremely delicate and sensitive aspect. One view is that when modern science gives the 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 the 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.

22. 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 test is eminently needed. DNA test 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 possible for the court to reach the truth without use of such test.

23. There is no conflict in the two decisions of this ourt, namely, Goutam Kundu vs. State of West Bengal (1993) 3 SCC 418 and Sharda vs. Dharmpal (2003) 4 SCC 493. In Goutam Kundu, 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 the court must carefully examine as to what would be the consequence of ordering the blood test. In Sharda, 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 prime facie case and there is sufficient material before the court. Obviously, therefore, any order for DNA test can be given by the court only if a strong prima facie case is made out for such a course.

24. Insofar as the present case is concerned, we have already held that the State Commission has no authority, competence or power to order DNA test. Looking to the nature of proceedings with which the High Court was concerned, it has to be held that the High Court exceeded its jurisdiction in passing the impugned order. Strangely, the High Court overlooked 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. ” (emphasis is ours)

It is therefore apparent, that despite the consequences of a DNA test, this Court has concluded, that it was permissible for a Court to permit the holding of a DNA test, if it was eminently needed, after balancing the interests of the parties.

15. Recently, the issue was again considered by this Court in Nandlal Wasudeo Badwaik vs. Lata Nandlal Badwaik and another, (2014) 2 SCC 576, wherein this Court held as under:

“15. 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 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 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 circumstances, which would give way to the other is a complex question posed before us.

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. The 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, a 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 bastardised 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.” (emphasis is ours) This Court has therefore clearly opined, that proof based on a DNA test would be sufficient to dislodge, a presumption under Section 112 of the Indian Evidence Act.

16. It is borne from the decisions rendered by this Court in Bhabani Prasad Jena (supra), and Nandlal Wasudeo Badwaik (supra), that depending on the facts and circumstances of the case, it would be permissible for a Court to direct the holding of a DNA examination, to determine the veracity of the allegation(s), which constitute one of the grounds, on which the concerned party would either succeed or lose. There can be no dispute, that if the direction to hold such a test can be avoided, it should be so avoided. The reason, as already recorded in various judgments by this Court, is that the legitimacy of a child should not be put to peril.

17. The question that has to be answered in this case, is in respect of the alleged infidelity of the appellant-wife. The respondent-husband has made clear and categorical assertions in the petition filed by him under Section 13 of the Hindu Marriage Act, alleging infidelity. He has gone to the extent of naming the person, who was the father of the male child born to the appellant-wife. It is in the process of substantiating his allegation of infidelity, that the respondent-husband had made an application before the Family Court for conducting a DNA test, which would establish whether or not, he had fathered the male child born to the appellant-wife. The respondent feels that it is only possible for him to substantiate the allegations levelled by him (of the appellant-wife’s infidelity) through a DNA test. We agree with him. In our view, but for the DNA test, it would be impossible for the respondent-husband to establish and confirm the assertions made in the pleadings. We are therefore satisfied, that the direction issued by the High Court, as has been extracted hereinabove, was fully justified. DNA testing is the most legitimate and scientifically perfect means, which the husband could use, to establish his assertion of infidelity. This should simultaneously be taken as the most authentic, rightful and correct means also with the wife, for her to rebut the assertions made by the respondent-husband, and to establish that she had not been unfaithful, adulterous or disloyal. If the appellant-wife is right, she shall be proved to be so.

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.

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.

33. Thus from the law as discussed above, Court in Dipanwita Roy Vs. Ronobroto Roy, (Supra) relied upon by the learned counsel for the appellant is of no help as the aforesaid judgement is in respect of a case where infidelity of the spouse is sought to be established. From the perusal of plaint of divorse petition, we find that no such plea regarding infedility of spouse was pleaded and therefore, no benefit can be derived from the aforesaid judgement. The law laid down by the three judges Bench in the case of Sharda Vs. Dharampal (Supra) holds the field. The following conclusions were drawn by Court in the aforesaid judgement:

“1. A matrimonial court has the power to order a person to undergo medical test.

2. Passing of such an order by the Court would not be in violation of the right to personal liberty under Article 21 of the Indian Constitution.

3. However, the Court should exercise such a power if the applicant has a strong prima facie case and there is sufficient material before the Court. If despite the order of the court, the respondent refuses to submit himself to medical examination, the court will be entitled to draw an adverse inference against him.”

34. Thus the point of determination No. 3 involved in the present appeal has to be decided in the light of the third conclusion drawn in Sharda Vs. Dharmpal (Supra). As already noted above, except for the two pathological reports, there is no other material relied upon by plaintiff-appellant, in support of his application (paper No. 42 Ga) for getting the D.N.A. test of the minor girl. Court below has disbelieved pathological report as plaintiff-appellant could not establish as to how the said reports were obtained by him. Apart from the aforesaid, we further find that there is no allegations of adultery against the defendant-respondent, on the basis of which, infidelity of spouse could be established. There is no pleading to the effect that during subsistence of marriage, plaintiff-appellant had never any access to the defendant-respondent, whereas, the testimony of D.W.1 the defendant-respondent and D.W. proves to the contrary. As such, the second point of determination, is answered against appellant.

35. So far as the third point of determination is concerned we find from the perusal of plaint that no such ground was pleaded in the plaint. Therefore, question that crops up for consideration is “whether a decree of reversal can be passed on a ground which was not the subject matter of adjudication before the Court below.”

36. The issue relating to irretrievable break down of marriage has been considered by a Division Bench of this Court in First Appeal No. 525 of 2006 (Smt. Kavita Sharma Vs. Neeraj Sharma) decided on 7.2.2018, wherein it has been observed as follows in paragraph 28:-

“28. The above findings recorded by Court below could not be shown perverse or contrary to record. Having considered the fact that parties are living separately from decades, we are also of the view that marriage between two is irretrievable and has broken down completely. Irretrievable breakdown of marriage is not a ground for divorce under Act, 1955. But, where marriage is beyond repair on account of bitterness created by the acts of the husband or the wife or of both, Courts have always taken irretrievable breakdown of marriage as a very weighty circumstance amongst others necessitating severance of marital tie. A marriage which is dead for all purposes cannot be revived by the Court’s verdict, if the parties are not willing. This is because marriage involves human sentiments and emotions and if they are dried-up there is hardly any chance of their springing back to life on account of artificial reunion created by the Court’s decree. On the ground of irretrievable marriage, Courts have allowed decree of divorce and reference may be made to Naveen Kohli v. Neelu Kohli (2006) 4 SCC 558 and Rishikesh Sharma Vs. Saroj Sharma, 2006(12) SCALE 282. It is also noteworthy that in Naveen Kohli v. Neelu Kohli (supra) Court made recommendation to Union of India that Act, 1955 be amended to incorporate irretrievable breakdown of marriage as a ground for grant of divorce. ”

37. Similarly this Court in First Appeal No. 792 of 2008 (Ashwani Kumar Kohli Vs. Smt. Anita) decided on 17.11.2016 has also considered this question and observed as follows in paragraphs 7, 8, 10, 11, 12 and 13:-

“7. Therefore, point for adjudication in this appeal is “whether a decree of reversal can be passed by granting divorce to the appellant on the ground which was not subject matter of adjudication before the Court below and is being raised for the first time in appeal”.

8. Under the provisions of Act, 1955 there is no ground like any “irretrievable breakdown of marriage”, justifying divorce. It is a doctrine laid down by judicial precedents, in particular, Supreme Court in exercise of powers under Article 142 of the Constitution has granted decree of divorce on the ground of irretrievable breakdown of marriage.

10. This aspect has been considered by this Court in Ram Babu Babeley Vs. Smt. Sandhya AIR 2006 (All) 12 2006 AWC 183 and it has laid down certain inferences from various authorities of Supreme Court, which read as under:-

“(i) The irretrievable break down of marriage is not a ground for divorce by itself. But while scrutinizing the evidence on record to determine whether the grounds on which divorce is sought are made out, this circumstance can be taken into consideration as laid down by Hon’ble Apex Court in the case of Savitri Pandey v. prem Chand Pandey, (2002) 2 SCC 73 and V. Bhagat versus D. Bhagat, AIR 1994 SC 710.

(ii) No divorce can be granted on the ground of irretrievable break down of marriage if the party seeking divorce on this ground is himself or herself at fault for the above break down as laid down in the case of Chetan Dass Versus Kamla Devi, AIR 2001 SC 1709, Savitri Pandey v. prem Chand Pandey, (2002) 2 SCC 73 and Shyam Sunder Kohli v. Sushma Kohli, (2004) 7 SCC 747.

(iii) The decree of divorce on the ground that the marriage had been irretrievably broken down can be granted in those cases where both the parties have levelled such allegations against each other that the marriage appears to be practically dead and the parties can not live together as laid down in Chandra Kala Trivedi versus Dr. SP Trivedi, (1993) 4 SCC 232.

(iv)The decree of divorce on the ground that the marriage had been irretrievably broken down can be granted in those cases also where the conduct or averments of one party have been so much painful for the other party ( who is not at fault) that he cannot be expected to live with the offending party as laid down in the cases of V. Bhagat versus D. Bhagat, (supra), Ramesh Chander versus Savitri, (1995) 2 SCC 7, Ashok Hurra versus Rupa Bipin Zaveri, 1997(3) AWC 1843 (SC), 1997(3) A.W.C. 1843(SC) and A. Jayachandra versus Aneel Kaur, (2005) 2 SCC 22.

(v) The power to grant divorce on the ground of irretrievable break down of marriage should be exercised with much care and caution in exceptional circumstances only in the interest of both the parties, as observed by Hon’ble Apex Court at paragraph No. 21 of the judgment in the case of V. Bhagat and Mrs. D. Bhagat, AIR (supra) and at para 12 in the case of Shyam Sunder Kohli versus Sushma Kohli, (supra).”

11. The above authorities have been followed by this Court in ”Pradeep Kumar Vs. Smt. Vijay Lakshmi’ in 2015 (4) ALJ 667 wherein one of us (Hon’ble Sudhir Agarwal,J.) was a member of the Bench.

12. In Vishnu Dutt Sharma Vs. Manju Sharma, (2009) 6 SCC 379, it was held that under Section 13 of Act 1955 there is no ground of irretrievable breakdown of marriage for granting decree of divorce. Court said that it cannot add such a ground to Section 13, as that would amount to amendment of Act, which is the function of legislature. It also referred to some judgments of Supreme Court in which dissolution of marriage was allowed on the ground of irretrievable breakdown but held that those judgments do not lay down any precedent. Supreme Court very categorically observed as under:-

“If we grant divorce on the ground of irretrievable breakdown, then we shall by judicial verdict be adding a clause to Section 13 of the Act to the effect that irretrievable breakdown of marriage is also a ground for divorce. In our opinion, this can only be done by the legislature and not by the Court. It is for the Parliament to enact or amend the law and not for the Court. Hence, we do not find force in the submission of learned counsel for the appellant.”

13. The above view has been followed in Darshan Gupta Vs. Radhika Gupta (2013) 9 SCC 1. Similar view was expressed in ”Gurubux Singh Vs. Harminder Kaur’ (2010) 14 SCC 301. This Court also has followed the above view in Shailesh Kumari Vs. Amod Kumar Sachan 2016 (115) ALR 689.”

38. In the case in hand, we find that the parties have not been living separately on account of their own free will. The record shows, it is the plaintiff-appellant, who has refused to keep defendant-respondent with him. The defendant-respondent has continuously and consistently pleaded that she wants to live with plaintiff-appellant. In this view of the matter, the argument raised by the learned counsel for the appellant that there has been an irretrievable break down of marriage has no factual foundation. That apart this Court in Ashwani Kumar Kohli (supra) has clearly held that the divorce cannot be granted on the aforesaid ground particularly when such a plea is raised by one party alone. In addition to the aforesaid, decree of divorce was not prayed for on the ground of irretrievable break down of marriage as the parties are alleged to have been living separately since 02.07.2004. The plaint was presented in the year 2004 whereas divorce petition was finally decided vide judgement dated 27.03.2012 and decree dated 10.04.2012 passed by the Principal Judge (Family Court), Varanasi in Petition No. 360 of 2004 (Rajesh Kumar Chaudhary Vs. Savita). For a period of eight long years, plaintiff-appellant kept quiet and now for the first time, this issue is being raised. We are of the considered opinion that in view of the discussion made herein above, plaintiff-appellant is estopped from raising this plea.

39. The defendant-respondent has filed an application in the year 2013 for payment of interim maintenance in terms of Section 24 of Act, 1955 during the pendency of the appeal. From the record, it appears that plaintiff-appellant was directed to pay a sum of Rs. 3,000/- to the defendant-respondent towards interim maintenance. However, payment of interim maintenance to the defendant-respondent came to an end with the passing of the final judgement and decree. So long as defendant-respondent continues to be the legally wedded wife of plaintiff-appellant the plaintiff-appellant, he has a legal as well as moral obligation to maintain her. There is nothing on record to show that the plaintiff-appellant has maintained his wife even subsequent to the judgement and decree passed by Court below. We accordingly allow the application for interim maintenance filed by defendant-respondent, i.e. Civil Misc. Application No. 28761 of 2013 and accordingly direct plaintiff-appellant to pay interim maintenance @ Rs. 5,000/- per month from April, 2012 till July 2019. The entire amount shall be deposited by plaintiff-appellant before Court below within a period of one month from the date of the judgement, failing which Court below shall proceed to recover the same.

40. No other point was pressed before us. Consequently, appeal fails and is therefore liable to be dismissed. It is accordingly dismissed with costs.

Order Date :- 19.7.2019

YK

(Rajeev Misra, J.) (Sudhir Agarwal, J.)

 

 

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