The Bombay High Court dismissed the plea of the Petitioner to disallow the maintenance ordered to him on the grounds that he is not the child's biological father. The Court held that no direction for a DNA test can be ordered in the absence of any separate application for the same. Also, no adverse inference can be made out against the wife by her mere refusal to go for a DNA test during a cross-examination.
Brief Facts:
The Petitioner filed the revision challenging the judgment and order passed by the learned Judicial Magistrate, First Class dated 29.09.2015 which granted maintenance under section 125 of the Criminal Procedure Code to respondent Nos.1 and 2 i.e. husband and daughter at the rate of Rs.2000/- and Rs.1000/- per month respectively.
The primary allegation of the Petitioner was that the girl child of the Respondent is not from him, and he is not the biological father of the child. The Respondent has a relation with some other person; therefore, the maintenance is not maintainable for the girl child. The Petitioner repeatedly requested to undergo a DNA test but the same was opposed by the Respondent.
Contentions of the Petitioner:
The specific ground the Petitioner in this revision, as well as before the learned Session Judge was that the respondent-wife had refused to go for DNA test. The Learner Counsel for the Petitioner argued that so far as the maintenance to the wife is concerned, it is not seriously disputed, but the Petitioner had a strong objection to paying maintenance of the child. The Petitioner heavily relied upon a judgment of the Hon’ble Apex Court in the case of Nandlal Wasudeo Badwaik Vs. Lata Nandlal Badwaik & Another 2014 AIR (SC) 932. In this case, the DNA test was directed to decide the paternity of the child. The Counsel relied on a catena of judgments to question the presumption under section 112 of the Evidence act.
Contentions of the Respondent:
It was the case of the Respondent that husband did not maintain her well and driven her out of the house and demanded dowry for which she filed a complaint under section 498-A of the Indian Penal Code. The Petitioner denied maintaining the Respondent and her daughter despite having an income of 2 lahks per year and ancestral land in which he has a share of 1/5th land. Further, it was submitted that the Petitioner failed to establish the child was born after 280 of dissolution of marriage, and therefore, the learned Trial Court rightly placed reliance on section 112 of the Evidence Act to hold that the child was born during the subsistence of the marriage. Thus, the child is presumed to be born from the husband.
Observations of the Court
The Court observed since the beginning, it is a case of the Petitioner that respondent No.2 child is not his child. However, the trial Court considered the presumption under section 112 of the Evidence Act to order the maintenance. In the Sessions Court, the specific ground taken was about the legitimacy of child. The Petitioner heavily relied on the wife’s denial to undergo a DNA test.
The Petitioner before this Court also vehemently argued that the Petitioner was ready to go for DNA test, still, no separate application was filed for DNA test. In view of this Court, a mere submission that the question was asked in cross-examination to wife that whether she is ready to go for DNA test, where she has answered that she is not ready itself, would not be sufficient to draw an adverse inference against the wife. The issue came down to whether the DNA test can be ordered at this stage, for which the Court held that in the absence of any application, the same could not be ordered by merely asking it orally.
The decision of the Court:
The Bombay High Court dismissed the Petition and denied to order for the DNA test as no separate application for the same was filed by the Petitioner.
Case Title: Namdeo s/o. Digambar Giri v. Seema
Coram: Hon’ble Justice Kishore C. Sant
Case no.: CRIMINAL WRIT PETITION NO. 271 OF 2017
Advocate for the Petitioner: Mr.Ravindra V. Gore
Advocate for the Respondents: Mr.Sandip R. Andhale
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