Allahabad High Court
Kamlesh Yadav vs State Of U.P. And 2 Others on 3 May, 2016
Bench: Abhai Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
? A.F.R.
Court No. - 13
Case :- CRIMINAL REVISION No. - 1536 of 2013
Revisionist :- Kamlesh Yadav
Opposite Party :- State Of U.P. And 2 Others
Counsel for Revisionist :- V. Singh
Counsel for Opposite Party :- Govt. Advocate,S.D. Pandey
Hon'ble Abhai Kumar, J.
Heard learned counsel for the appellant, learned A.G.A for the State and perused the record.
This revision has been filed by the revisionist - Kamlesh Yadav husband of Smt. Sheela Devi against State of U.P and others in Case No. 98 of 2006 (Smt. Sheela Devi Vs. Kamlesh Yadav) pending before the Court of Principal Judge, Family Court, Varanasi, against the order dated 08.05.2013, whereby prayer of revisionist was dismissed by the Principal Judge, Family Court, Varanasi for conducting D.N.A test of his wife. The record of the present revision reflects that allegations made against the wife by the revisionist that the son of the wife that Umang, who is said to be son of Kamlesh Yadav - husband, is not his son, she had begotten by somebody else, is living in parents house. The husband made an application for getting D.N.A test held of the child, which was opposed by wife. The trial court taken the benefit of Section 112 of Indian Evidence Act, held that presumption of legitimacy of child is there in case spouses are living together, but this can be rebutted by cogent evidence. It is also found by the Judge Family Court that no cogent evidence has been produced by the revisionist that he has divorced the wife - opposite party and she has begotten child after 280 days of that divorce. Hence the trial court rejected the application made by the revisionist - husband for D.N.A test of the child.
Learned counsel for the revisionist relied upon the judgement passed by Hon'ble Apex Court in the Case of Ramkanya Bai Verus Bharatram [2010 (1) CRC 54]. On the basis of that judgement the learned counsel for the applicant argued that application for D.N.A test of the child was moved at earliest stage and that should have been allowed by the Judge, Family Court. The relevant portion of the judgement of Hon'ble Apex Curt is mentioned in para 9 of the judgement, which reads as follows:-
"On a perusal of the application for grant of an order for DNA test of the child, it would also be evident that there was no allegation made by the husband/respondent that as a consequence of illicit relationship with some third person, the child was born to the wife/appellant. Apart from that, it is an admitted position that during the pendency of the divorce proceedings in trial Court, neither such prayer for performing DNA test to find out the paternity of the child was ever made by the husband/respondent nor any allegation in the plaint was made by him in his pleading. Therefore, it was not open to the High Court at the appellate stage to direct the DNA test to be performed on the child of the wife/appellant. It is also well settled that the presumption of legitimacy is a presumption of law. When a child is born out of a wedlock, there is a presumption in favour of his legitimacy and presumption of legitimacy largely depends on the presumed fact that the parties to a marriage have necessary access to each other when a divorce petition is filed and specially, when the husband/respondent did not assert that the son of the wife/appellant was a consequence of illicit relationship with some third person. The High Court, in the impugned order, has also observed that the son of the wife/appellant has begotten from the husband/respondent, which cannot be disputed at this stage on the basis of mere desire of the husband/respondent to deny such paternity of the child."
Although in this case the Hon'ble Apex Court has set aside the impugned order and also rejected the application for D.N.A. test, that was moved by the wife - appellant, but it is argued by learned counsel for the applicant that in the said judgement the Hon'ble Apex Court has clearly asserted that D.N.A test could be a proper method for asserting the paternity of spouse.
The Hon'ble Apex Court in the case of Ram Bali Mishra vs. Srimati Siya Deve reported in 2013 (98) A.L.R. 429 has held that nobody can be compelled for D.N.A test and that the same cannot dilute the presumption to be drawn under Section 112 of the Evidence Act.
The Hon'ble Apex Court in said judgement relied upon the case of Shekh Fakhauddin vs. Shekh Mohammad Hasan reported in A.I.R 2006 - Andhra Pradesh page 48. The above law propounded by Hon'ble Apex Court clearly states that nobody can be compelled for D.N.A test.
Learned counsel for the appellant further placed reliance of Hon'ble Apex Court in the case of Dipanwita Roy vs. Robobroto Roy reported in (2015) 1 SCC 365, whereby the Apex Court upheld the order of the High Court directing the D.N.A test of the child of the purposes of examining t he veracity of the accusation levelled against the wife by the husband.
However, the Apex Court even after upholding the said direction of the High Court went out to record that the wife is at liberty to comply with or disregard the order of the High Court. If she accepts the direction of the High Court, D.N.A. test would conclusively determine the veracity of accusation levelled against her, however, if she declines to comply with the direction of the High Court for D.N.A. test, then an adverse inference at best can be drawn against her.
In this case also the wife is opposing for D.N.A Test although the Family Judge did not specifically mentioned in the operative portion, but in the objection against the application for D.N.A test, this plea was taken by wife.
Hence as per the law pronounced one can not be forced to undergo D.N.A. Test and utmost adverse inference can be drawn against her.
In my opinion, if the appellant is so advised, he may raise a plea of adverse inference in the proceedings against the wife for refusing to get the D.N.A. test held at appropriate stage.
I, therefore, see no reason to interfere in order dated 08.05.2013, passed by the Principal Judge, Family Court, Varanasi in Case No. 98 of 2006 (Sheela Devi Vs. Kamlesh Yadav). Hence the present revision lacks merit and accordingly dismissed.
Order Date :- 03.05.2016.
Vinod.
