Delhi High Court
C K P vs M P on 2 April, 2019
$~8
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 2nd April, 2019
+ MAT.APP.(F.C.) 190/2018
CKP ..... Appellant
Through: Ms. Shilpa G. Mittal, Advocate.
versus
MP ..... Respondent
Through: Ms. Anjani Kumar and Mr. Abhishek
Kumar, Advocates.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MS. JUSTICE JYOTI SINGH
G.S. SISTANI, J. (ORAL)
MAT.APP.(F.C.) 190/2018 and C.M. Appl. Nos. 31738/2018 (for stay),
31740/2018 (for delay)
1. The challenge in this appeal is to the order dated 16.5.2018 passed by
the Family Court on an application filed by the appellant herein for
conducting a DNA test on the child. This application has been rejected by
the Family Court. The order passed by the Family Court reads as under:-
"Present: Petitioner with Ld. counsel Sh. R.K. Bacchan.
Respondent with Ld. counsel Sh. Anjani Kumar.
Replication filed. Copy furnished.
Today, petitioner has handed over a sum of Rs. 1,000/- in cash
to the respondent towards travelling expense.
An application has also been moved by the petitioner seeking
DNA examination of the child to ascertain the paternity of the child.
It is submitted by Sh. Bacchan that respondent left the
matrimonial home on 25.02.2015 and has thereafter not returned to
the matrimonial home. She was blessed with the child on 31.12.2015.
It is, therefore, submitted that petitioner/applicant has doubt on the
paternity of the child and therefore, the parties be put to DNA test to
ascertain the paternity of the child.
Heard.
The pleadings in the petition that respondent left the
matrimonial home on 25.02.2015 has been denied by the respondent
in her WS by pleading that she was dropped back to her parental
home in November, 2015. There is of-course, no documentary
evidence on record filed by the petitioner to indicate that respondent
was not in the matrimonial home, between 25.02.2015 to November,
2015. The same is, therefore, matter of trial and subject matter of
evidence being brought on record. Section 112 of Indian Evidence
Act provides presumption of legitimacy of the child, if the child is
born during the continuance of valid, unless it can be shown that the
parties to marriage had no excess to each other during the relevant
time. It is, therefore, incumbent about the petitioner/applicant to
establish that he had no excess to the respondent at the relevant time.
Merely moving an application seeking test of paternity on bald
statement that respondent had left the matrimonial home would not
help the petitioner/applicant. DNA testing has been discouraged by
higher courts in Boomi & Anr. Vs. Munirathnam reported as
(2005) IDMC 636, holding as under:-
"In matrimonial litigations blood test for a baby may
not be passed, unless court specifically addresses itself as to
whether such test would be for the benefit of baby. For an
adverse report may affect its future life. Welfare of baby of
litigating parties is of paramount consideration".
Application is, therefore, dismissed.
Vide separate order dictated and announced in the open court,
application under section 24 of HMA is disposed of.
Now to come up on 29.08.2018 for framing of issues and
reporting payment of maintenance amount."
2. Learned counsel for the appellant states that since the appellant has
made additional assertions with regard to the paternity of the child the DNA
would be the only answer.
3. We have heard counsels for the parties and have examined the order
so passed.
4. Section 112 of the Indian Evidence Act reads as under:-
"112. Birth during marriage, conclusive proof of legitimacy.--The fact that
any person was born during the continuance of a valid marriage between his
mother and any man, or within two hundred and eighty days after its
dissolution, the mother remaining unmarried, shall be conclusive proof that
he is the legitimate son of that man, unless it can be shown that the parties
to the marriage had no access to each other at any time when he could have
been begotten."
5. No doubt, it has been contended before us that once the appellant
rebuts the assertion so made he can lead evidence on this issue.
6. Para 12 of the application reads as under:-
"12. That admittedly the Respondent left the company and society of
Petitioner on 25.02.2015 and admittedly the child has been born on
31.12.2015 i.e. more than after 10 months. Thus, it is clear that the
Respondent has developed illicit relations with some other person and the
Petitioner is not father of said girl child. The Petitioner is also ready for
DNA test. Hence, the Respondent had voluntary sexual intercourse with
any other person and is guilty of committing offence under Section 13(1) (i)
of the Hindu Marriage Act."
7. Having regard to the submissions made, we find that there is no
infirmity in the order passed and the view taken by the Family Court.
8 An application seeking DNA test of the child in our view has very
strong repercussion on the child and such an order for conducting a DNA test
should be passed in very rare cases where very strong reasons are set out and
in extreme circumstances when the matter cannot be resolved by leading
evidence in the matter.
9. Various judgments have been referred to by counsel for the appellant,
which in our view do not apply to the facts of the present case. Whereas the
Family Court has placed reliance on Boomi & Anr. Vs. Munirathnam
reported as (2005) I DMC 636, which has correctly portrayed the current
picture.
10. No grounds are made out in the present appeal and the same is
accordingly dismissed. All pending applications are also disposed of.
11. Needless to say it will be open to the appellant to lead such evidence
as may be permissible in accordance with law with regard to the ground
sought to be urged before us.
G.S.SISTANI, J
JYOTI SINGH, J
APRIL 02, 2019
AK
