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Shankar Verma vs Vidya Verma on 27 July, 2022

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AFR

HIGH COURT OF CHHATTISGARH, BILASPUR

FAM No. 47 of 2019

Shankar Verma S/o Sheetal Verma Aged About 25 Years
Occupation Cultivator R/o Village Jiya Tahsil and District
Bemetara Chhattisgarh. Appellant

Versus

Vidya Verma W/o Shankar Verma Aged About 24 Years
R/o Village Jhal Tahsil and District Bemetara
Chhattisgarh. — Respondent

For the appellant : Mr. Abhishek Sinha, Sr. Advocate with
Mr. Ghanshyam Patel, Advocate.

For the Respondent : Mr. Vinod Kumar Pandey, Advocate

DB: Hon’ble Shri Justice Goutam Bhaduri, Judge
Hon’ble Shri Justice Deepak Kumar Tiwari, Judge

Judgement/order on Board

Per Goutam Bhaduri, J

27 .07.2022

1. The present appeal is against the judgment and decree

dated 04.01.2019 passed by the Family Court Bemetara

in Civil Suit No.9-A/2017 wherein the application filed by

the wife under section 9 of the Hindu Marriage Act for

restitution of conjugal rights was allowed. Hence this

appeal by the husband.

2. The brief facts of the case are that the parties have

entered in wedlock on 22.04.2016. Out of such wedlock,

a child was born on 20.10.2016. Since it was a

premature birth, the child was admitted to hospital. After
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two months of treatment, the child was discharged and

thereafter the wife joined the company of husband.

However, since February 2017, the behavior of the in-

laws towards the wife became strange and she along

with child was forcibly left at her maternal home in

village Jhhal. Subsequently, the wife came to know that

the child was subjected to DNA without the consent of

the mother and it was alleged that the child begotten to

them and the husband was not a biological father, as

such, dispute arose. The wife further contended that

since the husband wanted a divorce as he is in love

affairs with a lady outside the marriage, she was forcibly

left at maternal home. Thereafter the wife filed a report

at Women Police station Bemetara where she came to

know that DNA test got conducted on the child by

applying wrong method without following the legal

norms.

3. The husband in his reply to the application u/s 9 pleaded

that the marriage took place on 22.04.2016, the Gowna

rituals was performed on 18.05.2016 and thereafter

within a period of 5 months, a child was born on

22.10.2016. It is further pleaded that the child was

further subjected to DNA test and it was found that he

was not biological father. Consequently, the child was

left along with the mother at her parental place.

4. The learned trial Court framed 3 issues and allowed the

application of the wife for restitution of conjugal rights.

Being aggrieved by the said order, the present appeal.

5. The learned counsel for the appellant would submits that
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during the proceeding under section 9 of the Family

Court, an application was filed by the husband to get the

DNA test of the child and the wife, which was allowed.

However, despite that the wife refused to expose

themselves for DNA test. As a result, the inference of

section 114 of the Evidence Act would be applicable. He

further submits that the wife knowing the fact that the

answer to the DNA test is “unfavourable”, refused to

expose along with child for DNA test. He placed reliance

in Dipanwita Roy Versus Ronobroto Roy (2015) 1

SCC 365 and would submit that the petition for divorce

is already pending before the Court and despite refusal

of the wife to get herself to be expose to DNA, if the

findings are not set aside in this case then it would have

an adverse affect on the divorce petition. Therefore, he

prays that the judgment of the court below be set aside.

6. Per contra, learned counsel for the respondent would

submit that birth of the child was premature and as per

section 112 of the Evidence Act, the presumption of

paternity of the child would be covered that he is a

biological child. Consequently the order of the learned

family Court allowing the application u/s 9 of th Hindu

Marriage Act is well merited, which does not call for any

interference.

7. We have heard learned counsel for the parties. The

primary dispute which arose between the husband and

wife was for the reason that a child was born after 5

months of their marriage. Under these circumstances,

the dispute arose and the wife was left at her parental
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place along with the child.

8. A perusal of the order sheets of the court below would

show that the defence was taken by the appellant that

the child begotten to them, he is not the biological father

and as such an application for DNA test was filed. The

learned family Court by its order dated 31.7.2018

allowed the application of the husband for DNA of the

child and wife. This order was subject of challenge in

W.P.No.131/2021 wherein this Court by order dated

09.07.2021 followed the case law reported (2015) 1

SCC 365 (Dipanwita Roy v. Ronobroto Roy) and observed

that although there is an order for D.N.A Test passed by

the trial Court, but the wife has option not to participate

in DNA test and dismissed the petition.

9. The Supreme Court in Sharda v. Dharampal (2003)

4 SCC 493 has dealt with similar issue when the DNA

test is sought by one of the parties and at para 20

referred to the decision rendered by English Court in

B.R.B. Versus J.B (1968) 2 All ER 1023 wherein

it was held thus :

“A Judge of the High Court has power to
order a blood test whenever it is in the best
interest of the child. The Judges can be trusted
to exercise this discretion wisely. No limit-
condition or bound is set up to the way in which
Judges exercise their discretion. The object of
the court always is to find out the truth. When
scientific advances give fresh means of
ascertaining it, there should not be any
hesitations to use those means whenever the
occasion requires”.

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10. Further, in the case of Goutam Kundu v. State of

W.B. AIR 1993 SC 2295 initially the Court has held

that Courts in India cannot order blood test as a matter

of course and whenever applications are made for such

prayers in order to have roving inquiry, the prayer for

blood test cannot be entertained. It was further held that

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 and therefore no

person can be compelled to give sample of blood for

analysis.

11. The said finding was further considered in case of

Sharda vs. Dharampal (supra) and the Court held

that if the respondent avoids such medical examination

on the ground that it violates his/her right to privacy or

for that 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 was further held that 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 an absolute right. It was held

that some limitations on this right have to be imposed

and particularly where two competing interests clash.

The Court further held if for arriving at the satisfaction of

the court and to protect the right of a party to the lis

who may otherwise be found to be incapable of
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protecting his own interest, the court passes an

appropriate order, the question of such action being

violative of Article 21 of the Constitution of India would

not arise. It was further held that the court having

regard to Article 21 of the Constitution of India must also

see to it that the right of a person to defend himself

must be adequately protected. The limitation was further

imposed that court cannot order for a roving inquiry and

there must have sufficient materials before it to enable it

to exercise its discretion.

12. Lately thereafter the Supreme Court in Narayan Dutt

Tiwari v. Rohit Shekhar (2012) 12 SCC 554 at

Para 40 has reproduced the observations from the Court

of Appeal (Civil Division) of H. and A. (Children Paternity

Tests), which reads thus:

“40. Though in the light of what we have held, it
is not strictly relevant, but we are unable to
restrain ourselves from recording what the Court
of Appeal (Civil Division) observed in H. and A.
(Children) (Paternity : Blood Tests), In re- 2002
EWCA (Civ) 383 :

“Over thirty years ago in his speech in S. v. McC
Lord Hodson said : (AC pp. 57 F-58 A)

‘……The only disadvantage to the child which is
put forward as an argument against the use of a
blood test, not for therapeutic purposes but to
ascertain paternity, is that the child is exposed
to the risk that he may lose the protection of the
presumption of legitimacy.

Without seeking to depreciate the value of this
presumption it is, I think, fair to say that
whatever may have been the position in the
past the general attitude towards illegitimacy
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has changed and the legal incidents of being
born a bastard are now almost non-existent. I
need not dilate upon this, for I recognise that it
is impossible to say that there is no stigma of
bastardy even though it be no more than the
indirect stigma of the imputation of unchastity
to the mother of the child so described. On the
other hand, it is difficult to conceive of cases
where, assuming illegitimacy in fact, it is to the
advantage of the child that this legal status of
legitimacy should be preserved only perhaps to
be displaced by firm evidence of illegitimacy
decided later in his or her life from a blood test.

The interests of justice in the abstract are best
served by the ascertainment of the truth and
their 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. Why should the risk
be taken of a judicial decision being made which
is factually wrong and may later be
demonstrated to be wrong ?’

Those principles have been consistently applied in
subsequent cases, including H. (A Minor) (Blood
Tests : Parental Rights), In re-1997 Fam 89 : (1996) 3
WLR 506 and T. (A Child) (DNA Tests : Paternity), In
re- (2001) 3 FCR 577. The Jude sought to distinguish
those two authorities in his concluding paragraph,
which I have cited above. It draws the distinction that
in those two cases there were serious doubts as to
the husband’s procreative capacities. I do not
consider that factual distinction begins to displace
the points of principle to be drawn from the cases,
first that the interests of justice are best served by
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the ascertainment of the truth and second that the
court should be furnished with the best available
science and not confined to such unsatisfactory
alternatives as presumptions and inferences. It
seems to me obvious that all the Lord Hodson
expressed in the passage that I have cited applies
with even greater force and logic in a later era. First
there have been huge scientific advances with the
arrival of DNA testing. Scientists no longer require
blood, thus removing what for some is the
unbearable process of its extraction. Of even greater
importance is the abandonment of the legal concept
of legitimacy achieved by the Family Law Act, 1987.”

(emphasis supplied)

It was further 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.

13. Subsequently, the Supreme Court in case of Dipanwita

Roy v. Ronobroto Roy (2015) 1 SCC 365 has

reiterated the principles laid down in case of Bhabani

Prasad Jena v. Orissa State Commission for Women

(2010) 8 SCC 633, which is reproduced herein below :

“14. A similar issue case to be adjudicated
upon by this Court in
Bhabani Prasad Jena v.
Orissa State Commission for Women, 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
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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 Court, namely, Goutam Kundu v. State of
W.P. (1993) 3 SCC 418 and Sharda v.

Dharampal, 2003 (4) SCC 493. In Goutam Kundu
[(1993) 3 SCC 418], 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 [2003 (4) SCC 493] while concluding that
a matrimonial court has power to order a person
to undergo a medical test, it was reiterated that
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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 test can
be given by the court only if a strong prima facie
case is made out for such a course.”

Therefore, what is the principle emerges 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

allegations, if it was eminently needed.

14. The Supreme Court in case of Dipanwita Roy Versus

Ronobroto Roy (supra) has observed that if the DNA

test has been ordered it would be open for a party to

expose themselves for such DNA test and the DNA will

determine conclusively the veracity of accusation

levelled by the husband against her. However, in case

she declines to comply with the direction issued by the

High Court, the allegation would be determined by the

court concerned by drawing the presumption of nature

contemplated in section 114 of the Evidence Act in

terms of Illustration (h) thereof. Section 114 as also

Illustration (h) is relevant here and quoted below:

“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
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unfavourable to him;”

15. The submission of the respondent wife to draw a

presumption u/s 112 of the Evidence Act that the birth of

child would be deemed to be outcome of a valid

marriage and would be a conclusive legitimate son of

the marriage would not over ride the presumption of

section 114 of the evidence when the determination is

by the DNA test. The Supreme Court in Nandlal

Wasudeo Badwaik v. Lata Nandlal Badwaik AIR

2014 SC 932 has categorically held that in deciding the

paternity of the child, DNA test prevails over conclusive

proof of section 112 of the Act. For the sake of brevity,

paras 17 and 18 AIR is reproduced hereunder :

“17. We may remember that Section
112 of the Evidence Act was enacted at the
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
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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
circumstances. Those circumstances logically
would lead to the fact sought to be presumed.
Section 112 of the Evidence Act does not
create a legal friction but provides for
presumption.”

16. Therefore, we are conscious of the fact that under

Article 21 of the Constitution the wife has all the right to

refuse the order of the Court to undergo DNA test.

However, such refusal is required to be determined by

the Court by drawing a presumption in terms of Section

114 illustration (h) thereof.

17. During the course of hearing, it is stated at Bar a

divorce case has been filed by the husband which is

pending adjudication before the Family Court, Bemetara.

This fact cannot be over-looked that the ground which

has been raised by the husband would have a genesis to

the dispute between the wife and husband. The DNA

report (Ex.D-1) which was produced by the husband in

this case shall not be admissible for the reason that it is

not clear as to who was the author of document and in

absence of evidence whose DNA test that pertains is

also not clear. Therefore, it cannot be accepted and
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used against the child.

18. In view of what has been discussed above, we deem it

appropriate to set aside the finding of the learned Family

Court and remand the case to the family Court to decide

the same along-with the divorce petition which is

pending before the Family Court. The parties shall

appear before the Family Court as and when the case of

divorce was fixed. The records of the court below be

sent back. The Family Court shall further proceed to

decide the case in terms of the order passed on

31.07.2018 as also the observation made by this Court

in order dated 09.07.2021 passed in WP No.17/2021

along with the further observation made in the foregoing

paragraphs of the instant order.

19. With the above observations, appeal stands disposed of.

Sd/- Sd/-
(Goutam Bhaduri) (Deepak Kumar Dubey)
Judge Judge

Rao
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HEAD-NOTES

(1) The Court has power to direct DNA examination
to determine the veracity of allegations.

(2) The presumption on legitimacy of a child u/s
112 of the
Evidence Act is rebutable by test
of DNA.

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