Mrs. Shraddha Anand vs Mr. Anand Ramkumar
2017 Latest Caselaw 6011 Bom

                                                             WP.8923-2017.odt
        Dond


          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  CIVIL APPELLATE JURISDICTION

                          WRIT PETITION NO.8923 OF 2017

        Mrs. Shraddha Anand.                                  ..Petitioner.
                   vs.
        Mr.Anand Ramkumar                                     ..Respondent.

        Mrs. Abha Singh with Santosh Budwani for the petitioner.
        Smt. Chitra Phadke with Rutuja Ambekar for the Respondent.

                                     ---------------

                                      CORAM: A.S.GADKARI, J.

DATE : 16 AUGUST 2017.

P.C.:

1] Petitioner has invoked the jurisdiction of this Court

under Article 227 of the Constitution of India impugning the

order dated 18.7.2017 passed by the 9th Joint Civil Judge, (S.D)

Thane, below Exhibit-32 in Matrimonial Petition No.129 of

2017, granting permission to conduct DNA test of the

respondent and minor daughter Sia either at Forensic Laboratory,

Govt. of India, Hyderabad or at Forensic Science Laboratory,

Kalina, Mumbai whichever is convenient to both the parties and

the petitioner herein is directed to co-operate and keep

daughter Sia present for conducting the said test.

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2] Heard the learned Counsel for the Petitioner and the

learned Counsel for the respondent at length and perused the

record annexed to the petition.

3] The record indicates that, Respondent herein,

husband, has filed Matrimonial Petition No.129 of 2017 on

13.2.2017 in the Court of Civil Judge, (S.D.), Thane at Thane

under Section 13(1)(i) and (i-a) of the Hindu Marriage Act for

divorce. It is pleaded in the said Matrimonial Petition that, prior

to marriage, the petitioner herein revealed that she was having

affair/relationship with one Viji Vergese for about 7-years. As

the petitioner and respondent were in deep love, the respondent

told the petitioner to forget about the past and decided to start a

new life. The petitioner and respondent got married on

27.1.2008. A daughter by name Sia is born out of the said

wedlock on 18.9.2011. That, after the marriage it was revealed

to the respondent that the petitioner is having affair with

respondent No.2 therein i.e. Samir Bhiwapurkar. That, the

petitioner is also accustomed to alcoholic drinks. The pleadings

in the said petition specifically and categorically proceeds on the

footing that the petitioner was having extra marital

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affairs/relations with respondent Nos. 2,3 and 4 mentioned in the

said petition. Respondent has categorically averred that the

petitioner had been in adulterous relationship with three persons

namely the respondent Nos. 2,3 and 4 therein. Respondent has

further categorically pleaded that he has not condoned the

adulterous behavior of the petitioner and since the time he came

to know about the adultery the respondent had no conjugal

relations with the petitioner though he continued to live under

the same roof along with her for the sake of minor daughter Sia.

Apart from the prayer for dissolution of marriage he has prayed

that, custody of minor daughter Sia be handed over to him,

looking into the behavior pattern of the petitioner and for an

order to restrain the petitioner from disturbing the regular

schedule of minor daughter Sia from doing any act that will be

detrimental to the welfare and interest of minor daughter Sia.

4] The respondent thereafter filed an application dated

10.7.2017 below Exh.32 for conducting DNA test of the

respondent and minor daughter Sia. It is stated in the said

application that, while filing the marriage petition, the

respondent had a impression that he was the biological father of

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daughter Sia and petitioner had not started cheating upon him at

the relevant time of the conception and birth of Sia. However,

upon taxing his memory a lot, he realised that there was no

possibility that he was the cause of Sia's birth, as he was using

protection whenever petitioner allowed him to be physically

intimate with him. As the respondent had apprehension to

believe about the debauchery/promiscuity of the petitioner, he

conducted DNA test from private reputed/accredited laboratories

namely DNA Labs India and Life Forensic Laboratory and the

said laboratories have given their reports dated 3.4.2017 and

12.6.2017 respectively with a conclusion that the respondent is

excluded as the biological father of the tested child namely Sia.

The said reports are annexed to the present petition at pages-73

& 74 respectively.

It is further stated in the said application that,

respondent is aware of the rebuttable presumption as

contemplated under Section 112 of Indian Evidence Act, about

the legitimacy of a child born during the subsistence of a

marriage. The respondent has specifically stated that he did had

access to the petitioner, but her behaviour towards him had

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changed and she was reluctant for physical intimacy with him.

He has categorically stated that, it took him six painful long

years to realize that he was right in suspecting the petitionr about

her unchaste behaviour and that all the well wishers around him

were wrong. The respondent has further emphasised that he

believs the hallmark of justice "Truth must triumph", and with a

view to know the truth behind the birth of a child Sia, he filed

the said application before the Trial Court praying for

conducting a DNA test by an independent Forensic Laboratory

of Government.

5] Petitioner herein filed her reply-cum written

argument dated 13.7.2017 and opposed the said application. The

Trial Court after hearing the parties to the said application was

pleased to pass Order dated 18.7.2017 below Exh.32 which is

impugned herein.

6] Learned Counsel for the petitioner, apart from the

pleadings in the said written arguments and petition, submitted

that if the said test is allowed to be performed, future life of the

child will be devastated and it is for the Court to take into

consideration the future of the minor child. The entire gravamen

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of the contentions and the arguments of the petitioner are

revolving around Section 112 of the Indian Evidence Act which

deals with the legitimacy of birth of a person during the

continuance of a valid marriage between his mother and any man

or within 280 days after its dissolution, the mother remaining

unmarried, shall be conclusive proof that he is the legitimate son

of that man.

Learned Counsel for the petitioner in support of her

contentions relied upon two decisions of the Hon'ble Supreme

Court namely (1) Gautam Kundu Vs. State of West Bengal &

Anr. [MANU/SC/0345/1993: AIR 1993 SC 2295 and (1993) 3

SCC 418] and (2) Shri Banarsi Dass Vs. Mrs. Teeku Dutta &&

Anr.[ MANU/SC/0333/2005 : (2005) 4 SCC 449]. She submitted

that the directions issued by the Trial Court are contrary to the

guidelines laid down by the Supreme Court in para-26 in the

case of Gautam Kundu(supra). She submitted that the Trial

Court after taking into consideration the presumption under

Section 112 of Indian Evidence Act ought not have granted such

a permission and therefore Order impugned herein is bad in law.

She therefore prayed that the impugned Order be quashed and

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set aside and the petition may be allowed.

7] In the case of Gautam Kandu (supra), the husband

had filed an application before the Trial Court for conducting

DNA test in a proceedings under Section 125 of Cr. P.C. The

Hon'ble Supreme Court has recorded a conclusion that with a

view to avoid payment of maintenance the blood test was sought

and the said application was therefore made. In the case of

Gautam Kundu(supra), the Hon'ble Supreme Court, after

analyzing the dicta laid down by the various High Courts and

law prevailing till then and also after taking into consideration

the provisions of Section 112 of the Indian Evidence Act, in

para-26 of the said Judgment, has laid down guidelines for

conducting blood test wherein doubt about the paternity is

raised. In para-26 of the said Judgment it is held that, the Courts

in India cannot order blood test as a matter of course; wherever

applications are made for such prayers in order to have roving

inquiry, the prayer for blood test cannot be entertained; 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, and the Court must

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carefully examine as to what would be the consequence of

ordering the blood test.

In para-22 of the said decision, the Hon'ble Supreme

Court has held that, it is a rebuttable presumption of law that a

child born during the lawful wedlock is legitimate and that

access occurred between the parents. That this presumption can

only be displaced by a strong preponderance of evidence and not

by a mere balance of probabilities.

8] In the case of Shri Banarsi Dass (supra), the core

question involved in the appeal was whether a direction for DNA

test can be given in a proceeding for issuance of succession

certificate under the Indian Secession Act, 1925. By relying on

the decision in the case of Gautam Kundu (supra), the Hon'ble

Supreme Court has further elaborated the proposition of law

pertaining to conducting DNA test. In para-15 of the said

decision, the Supreme Court has held that Section 112 of the

Indian Evidence Act was enacted at a time when the modern

scientific advancements with DNA as well as RNA tests were

not even in contemplation of the legislature. That the result of a

genuine DNA test is said to be scientifically accurate. But even

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that is not enough to escape from the conclusiveness of Section

112 of the Indian 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. That, 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. It is further held that, DNA test is not to be directed as

a matter of routine and only in deserving cases such a direction

can be given.

9] There cannot be any second opinion or dispute

about the guidelines enumerated by the Supreme Court in the

case of Gautam Kundu(supra), however, the facts involved in

the present case are totally different. The record clearly indicates

that, matrimonial petition filed by the respondent/husband before

the Family Court proceeds entirely on the footing that the

petitioner was/is having extra-marital relationship with

respondent Nos.2 to 4 mentioned therein.

10] It is the categorical case of the respondent in his

application for conducting DNA test that, his chances being

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biological father of the minor child Sia are very blink, as he was

using protection whenever petitioner allowed him to be

physically intimate with him. The respondent has also placed

reliance on two private reputed/accredited laboratories wherein

DNA test of respondent and minor daughter Sia was conducted

and the reports of the said laboratories in unequivocable term

gave its conclusion/result that the respondent is excluded as the

biological father of the tested child namely Sia. Thus the

respondent has made out a strong prima facie case for

conducting DNA test upon himself and daughter Sia. It clearly

appears that the presumption of legitimacy has been displaced by

a strong preponderance of evidence on record by the respondent

and not by a mere balance of probabilities.

11] As has been observed by the Hon'ble Supreme

Court in the case of Shri Banarsi Dass (supra), the result of a

genuine DNA test is said to be scientifically accurate. It is to be

noted here that, as of today due to advent of science, conducting

DNA test will certainly throw light on the paternity of the child.

The respondent cannot be foisted with paternity of the child, if it

is proved by a scientific method that he is not the concerned

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person to give birth to the said minor child, though he was

having access to the petitioner at the relevant time. The reports

of DNA tests from the private laboratories which are produced

by the respondent on record, according to this Court, has the

evidential value as of a contemporaneous document in support of

contention of respondent and the Trial Court has taken into

consideration the facts only for the said purpose. The respondent

therefore has prayed that DNA test at Government recognize

laboratories may be conducted upon himself and minor child Sia

for knowing real truth. It is to be noted here that, the Trial Court

in para-11 of the impugned Order, recorded that even after

knowing that the respondent is not the biological father of Sia,

he is praying for availing access to her and has submitted that he

has fatherly affection for her.

12] After taking into consideration the entire facts of the

present case, this Court is of the considered opinion that, there is

no error or illegality either in law or on facts committed by the

Trial Court in passing the impugned Order dated 18 th July 2017

and interference by this Court under Article 227 of the

Constitution of India is therefore unwarranted.

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Petition is accordingly dismissed.

13] At this stage, learned Counsel for the petitioner

submitted that, petitioner intends to question the correctness of

the present order before the Hon'ble Supreme Court and effect of

the present Order may be stayed for a period of 6 weeks from

today. At the request of learned Counsel for the petitioner, the

present Order is stayed for a period of 6 weeks from today.

(A.S.GADKARI, J.)