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Rameshbhai Pochabhai Marand vs Satiben D/O Karshanbhai Chavda … on 24 October, 2019

C/SCA/5517/2019 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/SPECIAL CIVIL APPLICATION NO. 5517 of 2019

RAMESHBHAI POCHABHAI MARAND
Versus
SATIBEN D/O KARSHANBHAI CHAVDA W/O. RAMESH POCHABHAI
MARAND

Appearance:
MR MEHUL M MEHTA(3416) for the Petitioner(s) No. 1
MALAV M MULANI(8844) for the Respondent(s) No. 1
MANSI M MULANI(9575) for the Respondent(s) No. 1

CORAM: HONOURABLE DR.JUSTICE A. P. THAKER

Date : 24/10/2019

ORAL ORDER

1. The petitioner has filed present petition under SectionArticle 226
of the Constitution of India read with Section 13 of the Hindu
Marriage Act, 1955 with a prayer to quash and set side order
dated 11.12.2018 passed below Exh.14 in Hindu Marriage
Petition No.56 of 2017 by learned Principal Senior Civil Judge,
Gandhidham-Kutch.

2. The petitioner-original plaintiff is a labourer and marriage
of the petitioner is solemnized about 6 years before the filing
of application for dissolution of marriage. The petitioner has
filed application for dissolution of marriage on the ground of
adultery of his wife. The petitioner filed application Exh.14 for
conducting DNA test to prove the paternity of the child on the
ground that there was no access to his wife after solemnization
of marriage. It is stated that one child was born in the year
2010 and another in 2013. It is stated that learned Family

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Court Judge has not considered any grounds averred in the
application while deciding the application for DNA test and
passed the impugned order rejecting Exh.14 application
against which present petition is preferred.

3. Learned counsel, Mr.Mehul Mehta, for the petitioner has
submitted that Hindu Marriage Petition No.56 of 2017 was filed
for dissolution of marriage between the appellant and the
respondent, and in such petition, the appellant has preferred
an application for DNA test of the children and the wife, which
application has been rejected by the trial Court vide order
dated 11.12.2018. He has contended that the trial Court has
committed serious error of facts and law in rejecting the
application. He has also contended that when there is an
allegation of non-cohabitation of the appellant with the
respondent, the children born are a result of illicit relationship
of the wife with another person. By relying upon the decision in
the case of SectionDipanwita Roy v. Ronobroto Roy AIR 2015 SC
418, he has submitted that identical facts are there and,
therefore, in view of the said decision this Court should also
direct the respondent to undergo DNA test. It is contended that
earlier wife has shown readiness for DNA test but now she is
declining the same. He has also relied upon the following
decisions.

1. Narayan Dutt Tiwari v. Rohit Shekhar and
Another (2012) 12 SCC 554.

2. Dipanwita Roy v. Ronobroto Roy AIR 2015 SC

418.

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3. SectionGoutam Kundu v. State of West Bengal 1993
(2) GLH 996.

4. Per contra, Mr.Malav Mulani, for the respondent has
submitted that first child has born in the year 2010 and
another child has born in 2013. According to him, after four
years from the birth of last child, present suit came to be filed.
According to him, there was cohabitation between husband
and wife. He has also contended that there is no strong prima
facie case in favour of the petitioner in undergoing DNA test
and the decision sought to be relied by the appellant are rather
helpful to the respondent. He has also contended that if wife
did not agree with DNA test then adverse inference could be
drawn and there is no need for such test. He has also
contended that there are only bald allegations regarding
infidelity on the part of the wife. He has also contended that
now the age of the children is seven and nine years
respectively, and husband and wife are now not living
together. He has prayed to dismiss present petition.

5. Before dealing with the facts of the case, it would be
appropriate to refer to various decisions and the observations
made therein with a view to appreciate the controversy
involved in the present case. The Apex Court in the case of
SectionGoutam Kundu v. West Bengal [(1993) 3 SCC 418]
observed as under:-

“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 individual as a father of the child.
However, it requires to be carefully noted no person can

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be compelled to give sample of blood for analysis against
her will and no adverse inference can be drawn against
her for this refusal.

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 and that every person is legitimate. Marriage or
affiliation (parentage) may be presumed, the law in
general presuming against vice and immorality.

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 preponderance of
evidence, and not by a mere balance of probabilities.

………….

26. From the above discussion it emerges:-
(1) that courts in India cannot order blood test as a
matter of course;

(2) wherever applications are made for such prayers in
order to have roving inquiry, the prayer for blood test
cannot be entertained.

(3) There must be a strong prima facie case in that the
husband must establish non-access in order to dispel the
presumption arising under Sectionsection 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.”

5.1 In the case of SectionBhabani Prasad Jena v. Convenor
Secretary, Orissa State Commission for Women and

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Another [(2010) 8 SCC 633] the Apex Court has observed as
under:-

“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.”

5.2 In the case of SectionBanarasi Dass v. Teeku Dutta (Mrs)
and Another [(2005) 4 SCC 449], the Apex Court observed
as under:-

“14. …… The trial court erroneously held that the
documents produced by the respondents were not
sufficient or relevant for the purpose of adjudication and
DNA test was conclusive. This is not a correct view. It is

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for the parties to place evidence in support of their
respective claims and establish their stands. DNA test is
not to be directed as a matter of routine and only in
deserving cases such a direction can be given, as was
noted in Goutam Kundu’s case (supra). Present case does
not fall to that category. High Court’s judgment does not
suffer from any infirmity. We, therefore, uphold it. It is
made clear that we have not expressed any opinion on
the merits of the case relating to succession application.”

5.3 In the case of SectionParshottamdas Vishadas Raheja and
Another v. Shrichand Vishandas Raheja (2011) 6 SCC 73
has observed as under:-

“29. The test to be applied to assess the correctness of
the order of the learned Single Judge would be whether
the order is so arbitrary, capricious or perverse that it
should be interfered with at an interlocutory stage in an
intra-court appeal.”

5.4 In the case of SectionMohd.Mehtabkhan and Others v.
Khushnuma Ibrahimkhan and Others [(2013) 9 SCC 221,
the Apex Court has observed that grant of mandatory interim
relief requires the highest degree of satisfaction of the Court;
much higher than a case involving grant of prohibitory
injunction. It is, indeed, a rare power, the governing principles
whereof would hardly require a reiteration inasmuch as the
same which had been evolved by this Court in SectionDorab Cawasji
Warden v. Coomi Sorab Warden (1990) 2 SCC 117. In the said
case in paragraphs 16 and 17, it is observed as under:-

“Paras 16 and 17 of the judgment in Dorab Cawasji
Warden (supra), extracted below, may be usefully
remembered in this regard:

“16. The relief of interlocutory mandatory injunctions are
thus granted generally to preserve or restore the status

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quo of the last non-contested status which preceded the
pending controversy until the final hearing when full
relief may be granted or to compel the undoing of those
acts that have been illegally done or the restoration of
that which was wrongfully taken from the party
complaining. But since the granting of such an injunction
to a party who fails or would fail to establish his right at
the trial may cause great injustice or irreparable harm to
the party against whom it was granted or alternatively
not granting of it to a party who succeeds or would
succeed may equally cause great injustice or irreparable
harm, courts have evolved certain guidelines. Generally
stated these guidelines are:

(1) The plaintiff has a strong case for trial. That is, it shall
be of a higher standard than a prima facie case that is
normally required for a prohibitory injunction.
(2) It is necessary to prevent irreparable or serious injury
which normally cannot be compensated in terms of
money.

(3) The balance of convenience is in favour of the one
seeking such relief.

17. Being essentially an equitable relief the grant or
refusal of an interlocutory mandatory injunction shall
ultimately rest in the sound judicial discretion of the
court to be exercised in the light of the facts and
circumstances in each case. Though the above
guidelines are neither exhaustive nor complete or
absolute rules, and there may be exceptional
circumstances needing action, applying them as
prerequisite for the grant or refusal of such injunctions
would be a sound exercise of a judicial discretion.”

6. In the case of Narayan Dutt Tiwari v. Rohit Shekhar
and Another reported in (2012) 12 SCC 554, while
upholding the decision of the Court below, the Apex Court has
directed the petitioner therein to undergo DNA test. That the
only disadvantage to the child which is put forward as an
argument against the use of blood test, not for therapeutic
purposes but to ascertain paternity, is that the child is exposed
to risk that he may lose the protection of the presumption of

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legitimacy. It is further observed that interest of justice in the
abstract are best served by ascertainment of the truth and
there must be few cases, where the interests of children can
be shown to be best served by the suppression of truth.
Scientific evidence of blood groups has been available since
the early part of this century and the progress of serology has
been so rapid that, in many cases, certainty or near certainty
can be reached in the ascertainment of paternity. It is also
observed that paternity of any child is to be established by
science and not by legal presumption or inference or by a long
and acrimonious trial. It was further observed that injunction
directing DNA testing falls in the category of an order in aid of
disposal of the suit and deciding the rights of the parties to the
suit i.e. the right asserted by the appellant to have such DNA
testing done and the right asserted by respondent no.1 to not
submit thereto. Once such right has been adjudicated by the
suit court and the appeal there against had been dismissed
and the application for stay having been rejected by the Apex
Court, it was not open to suit Court to entertain the said
question. It was further observed that drawing of adverse
inference from refusal to comply with the direction for medical
examination cannot be a substitute to enforceability of a
direction for DNA testing. Legal fiction under Section 114 of the
Evidence Act as adverse inference is not a reality, which the
said provision requires. The Court has to accept the reality.
The Court is not bound to or oblige to draw such adverse
inference. A presumption is not in itself evidence but only
makes a prima facie case for party in whose favour it exists.
The presumption cannot displace adequate evidence. It is the
rule of law in evidence that best available evidence should be
brought before the Court to prove a fact for the points in issue

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and the Court ought to play an active role in the proceedings in
finding the truth and administering the justice. That the truth is
a guiding star and the quest in the judicial process and the
voyage of trial. The trend world over of full disclosure by the
parties and the deployment of powers to ensure that the scope
of factual controversy is minimized was noticed. It was further
observed that adverse inference from non-compliance cannot
be a substitute to the enforceability of direction for DNA
testing.

6.1 In the case of SectionDipanwita Roy v. Ronobroto Roy [AIR
2015 SC 418], the Apex Court has observed that it was
permissible for a Court to direct holding of DNA examination, if
it was imminently needed after balancing the interest of the
parties. It was also observed that 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. It is also observed therein that DNA testing is the most
legitimate and scientifically proved means.

7. On perusal of the material placed on record, it transpires
that it is the allegation of the husband that there was no
physical relation with the wife and that the wife has given birth
to children and the children are not born out of the wedlock of
the petitioner and the respondent, therefore, prayer is made
for DNA test of the children. Admittedly, to find out the
paternity, DNA test is a scientific test and when the scientific
test is available, the issue can be decided by such scientific
evidence. DNA test cannot be granted as a matter of course
but in a given case, DNA test can be directed to be carried out.

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Of course, there is a presumption under Section 112 of the
Evidence Act regarding paternity of the children born during
280 days of cohabitation, however, presumption under Section
112 may not be available when it is shown that the parties had
no access to each other at the time when the child could have
begotten and, in such a case, the presumption could be
rebutted.

8. There is a specific allegation of the husband that there
was no access to each other at any point of time and yet
children have born to the wife. Under the circumstances, DNA
test can be a proper course to be carried out. However, at the
same time, the rights of the wife are also required to be
protected by passing certain orders to the effect that husband
should deposit certain amount in the trial Court and the same
would be liable to be paid to the wife and children, in case of
DNA test being positive, with a rider that if the DNA test is
negative then amount deposited may be paid to the husband-
petitioner herein.

9. Considering the material on record, this Court is of the
opinion that the impugned order is liable to set aside and
direction is to be issued to the wife and children to the effect
that DNA test of the sons to be conducted at Civil Hospital,
Bhuj. However, before such test is carried out, the husband will
deposit a sum of Rs.1 Lac in the trial Court, which will stand
forfeited and would be handed over to the wife, if the husband
is shown to be father of the children on the basis of DNA test
result. In the event, the result reveals that the petitioner is not
the father of the children, the money will be refunded by the
trial Court to the petitioner herein. After deposit of such

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amount, the wife shall accompany her sons to the Civil
Hospital, Bhuj, at 11 a.m. on a fixed day and the petitioner
herein-original plaintiff shall also remain present. It is hereby
ordered that the plaintiff-husband and the children shall give
their blood samples in Civil Hospital, Bhuj, and same shall be
forwarded to Forensic Science Laborary, Gandhinagar, for DNA
test. The Forensic Science Laboratory, Gandhinagar, shall
submit its report as expeditiously as possible before the trial
Court in a sealed cover. The expenses for such procedure will
be born by the husband, which may be obtained in advance by
the laboratory from the husband.

10. Liberty is hereby granted to the wife to comply or
disregard the above order requiring holding of DNA test. In
case, she accepts the direction, DNA test will determine
conclusively the veracity of the accusation levelled by the
petitioner-husband against her. In case she declines to comply
with the direction issued by this Court, the allegation would be
determined by the trial Court by drawing a presumption as
contemplated in Section 114 of Indian Evidence Act, especially
in the illustration (h) thereof.

11. The impugned order dated 11.12.2018 passed below
Exh.14 in Hindu Marriage Petition No.56 of 2017 by learned
Principal Senior Civil Judge, Gandhidham-Kutch is modified to
the aforesaid extent. In view of above, present petition is
disposed of. No order as to costs.

Sd/-

(A. P. THAKER, J)
R.S. MALEK

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