Anusha Kumari vs Rohan
2023 Latest Caselaw 2279 Patna

    IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Miscellaneous Appeal No.460 of 2019
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Anusha Kumari W/o Rohan, D/o Arvind Kumar Resident of C/o- Sri Ram Hardware, Khadi Bhandar Chowk Kanhauli, P/S Kanhauli, District- Muzaffarpur.

... ... Appellant/s Versus Rohan Son of Mohan Prasad Sinha R/o- Darhara House Kalam Bagh Chowk, District- Muzaffarpur.

... ... Respondent/s ====================================================== Appearance :

For the Appellant/s : Mr. Uday Prakash Shrarma, Adv. For the Respondent/s : Mr. Jitendra Singh, Sr. Adv.

Mr. Harsh Singh, Adv.

====================================================== CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR and HONOURABLE MR. JUSTICE HARISH KUMAR CAV JUDGMENT (Per: HONOURABLE MR. JUSTICE HARISH KUMAR)

Date : 11-05-2023

Heard Mr. Uday Prakash Shrarma, learned advocate

for the appellant and Mr. Jitendra Singh, learned senior advocate

assisted by Mr. Harsh Singh, learned advocate for the

respondent.

2. The present Miscellaneous Appeal is directed

against the judgment and decree dated 01.06.2019 and

14.06.2019, respectively, passed by the learned Principal Judge,

Family Court, Muzaffarpur, in Matrimonial Case No. 55 of

2014, whereby the marriage between the appellant/wife and

respondent/husband has been dissolved and decree of divorce

has been passed on the ground of adultery.

3. The factual matrix of the case as is culled out from

the records is that the marriage of the appellant/wife and the Patna High Court MA No.460 of 2019 dt.11-05-2023

respondent/husband was solemnized on 19.02.2012. After

performance of the rituals of marriage, the appellant/wife had

gone to her matrimonial home and lived in Muzaffarpur along

with her husband till 03.03.2012. The husband, after having

stayed with the wife for about 14 days in Muzaffarpur, returned

to his service on 03.03.2012.

4. It is the case of the respondent/husband that after

leaving Muzaffarpur, there had never been any physical

relationship with his wife for about five and a half months. The

appellant/wife, thereafter, went to Chandigarh with her father

for the first time after her marriage on 14.08.2012 and she

stayed there for two months. Later on, the mother of the

appellant/wife visited Chandigarh to see her daughter and after

having stayed for a couple of days, she returned to Muzaffarpur

on 14.10.2012 with her daughter. On 17.01.2013, the

appellant/wife gave birth to a male child at Muzaffarpur.

5. However, it is submitted that as there had never

been any physical relationship of the respondent/husband after

he left Muzaffarpur on 03.03.2012 for about five and a half

months, so it was surprising for the respondent/husband as to

how the appellant/wife gave birth to a child on 17.01.2013. It is

further submitted that it is medically proven that the baby rests Patna High Court MA No.460 of 2019 dt.11-05-2023

in the womb of the mother for about nine months after

conception. Though there have been instances of premature

delivery in 7-9 months, but there has been no instance of baby

resting in womb of the mother for about ten and half months.

6. The aforenoted facts gave rise to serious doubt

about the unchaste conduct of the appellant/wife of her adultery

outside the wedlock.

7. In order to dispel all the doubts, the father of the

respondent/husband made a proposal for the D.N.A. test, which

was accepted by the appellant's family but later on, the

appellant/wife declined for D.N.A. test of paternity for her baby.

8. Thus, the abovementioned conduct confirmed the

appellant/wife involvement in adultery.

9. It is also submitted that adultery is an offence

against marriage under both the criminal and matrimonial laws

and even one single act of adultery is enough for divorce and

there is no question of living together of husband and wife. The

husband had no option but to file an application for divorce

under Section 13(1)(ia) of Hindu Marriage Act for dissolution of

Marriage on the grounds of adultery.

10. The wife having come to know about this case

from the publication of notice in news papers, entered her Patna High Court MA No.460 of 2019 dt.11-05-2023

appearance and filed a detailed reply, admitting that her

marriage was solemnized with the respondent/husband on

19.02.2012 and that she remained in her sasural with the

respondent/husband for 14 days. Thereafter, her husband went

to Chandigarh. It is further stated that her father had spent more

than 25 lacs in the marriage. Nonetheless, the family members

of husband tormented her for dowry. Whenever she expressed

her desire to visit Chandigarh, the parents-in-law told her to stay

in flat at Muzaffarpur. She has also stated that her father-in-law

used to drink and had evil eyes on her who even went to the

extent of administering sleeping pills in her food. Whenever she

woke up, she had a feeling that something had happened with

her. She has further submitted that having lost faith on the

parents of her husband, she went to Chandigarh in the first week

of May, 2012 on the pretext of taking advice of the doctor and

tried to narrate the entire facts to her husband but due to his

non-cooperative attitude, she could not state her ordeal and

finally she returned on 14.08.2012. Thereafter, again, she visited

Chandigarh on 14.10.2012 to live with her husband. However,

after spending sometime, she fell ill and when she was taken to

doctor, she was diagnosed to be in family way. Thereupon, she

returned to Muzaffarpur along with her mother and a child was Patna High Court MA No.460 of 2019 dt.11-05-2023

born on 17.01.2013.

11. It is the case of the wife that her husband always

convinced her that he would take her back to Chandigarh when

he would get a good accommodation there and, on such pretext,

he took her 25 mgs. of gold jewellery and Rs. 2 lacs loan from

her father in the month of February, 2014. The wife completely

denied the allegation that she visited Chandigarh on 14.08.2012

for the first time and thereafter, there was no physical

relationship and thus completely denied the allegation of

adultery. She had also proposed for the D.N.A. test in order to

ascertain the proof of paternity and, accordingly, prayed for

dismissal of the suit filed by the husband.

12. The learned Family Court, on the basis of the

aforenoted pleadings, framed the issues, inter alia, "as to

whether the wife is guilty of adultery leading to birth of

illegitimate child and that she treated the husband with cruelty,

entitling him for a decree of divorce."

13. The husband examined three prosecution

witnesses, namely, A.W.1, the respondent/husband himself,

A.W.2, Mukesh Kumar, who happens to be a medical shop

owner and A.W.3, Shashi Shekhar Kumar, who is said to be the

tenant of the respondent/husband.

Patna High Court MA No.460 of 2019 dt.11-05-2023

14. On the other hand, the wife also examined

altogether five witnesses including herself as O.P.W.1, O.P.W.2,

who is her uncle; O.P.W.3, Sushil Singh and O.P.W.4,

Vishwanath Karji, both of whom have claimed themselves to be

acquainted with both the sides and O.P.W.5, Arvind Kumar, who

is her father.

15. The husband had also filed a photocopy of

ultrasonography of Gautam Diagnostic Centre, Juranchapra,

Muzaffarpur, which is marked as Ext.X, which shows that on

16.10.2012, ultrasonography of foetal well being was tested and

Gestational age was 26 weeks 04 days+/-2 weeks on the date of

examination. Another report of Anupam Ultrasound & Color

Doppler Centre, Juranchapra, Muzaffarpur was also exhibited

and marked as Ext.X1 which showed that the test was done on

25.10.2012 and composite Gestational age was 28 weeks 03

days +/-1 week.

16. On the basis of the aforenoted ultrasound reports,

it was pleaded that the wife lived in adultery, which is apparent

from the date of beginning of pregnancy, which according to

both the reports, is in the month of April, though the husband

had not met his wife after 03.03.2012. Hence, it was submitted

that the child who was born on 17.01.2013 is not his child. Patna High Court MA No.460 of 2019 dt.11-05-2023

17. The learned Family Court has taken note that

witnesses have stated that after 03.03.2012, the wife visited her

husband's place of work on 14.08.2012 and there had never

been any relationship in this period. The wife gave unreliable

statement that she either lived after pregnancy till 14.10.2012 or

she lived in her sasural/Kalambagh Chowk or with her husband.

18. The learned Family Court having further took

note of the fact and in order to give a quietus to the dispute, a

direction for D.N.A. test was issued but such direction was put

to challenge before the High Court in C.W.J.C. No. 5689 of

2015. The High Court, in order to ascertain the plea of husband

and for the purposes of resolving the dispute, upheld the lower

court's order for D.N.A. test. While concluding the issue

involved in the Matrimonial Suit, the learned Family Court

heavily relied upon a judgment rendered by the Division Bench

of this Court in the case of Smt. Rakhi Kumari @ Soni Vs.

Brij Nandan Ram and Another, 2016(3) PLJR 706, wherein

the Court has observed at para 6 and 8 is as follows:

"6. Appellant-wife having objected to subject herself and the child for D.N.A. examination, we, placing reliance on the judgment of the Supreme Court in the case of Dipanwita Roy vs. Ronobroto Roy, (2015) 1 SCC 365 [:2015(1)PLJR (SC)89] invoke Section 114(h) of the Evidence Act, proceed to Patna High Court MA No.460 of 2019 dt.11-05-2023

draw adverse inference against her, accordingly, affirm the findings recorded by the court below in connection with issue nos. 3, 4."

8. In the above case a direction was given to the parties to appear before the Director, Forensic Science Laboratory for D.N.A. Test of wife, husband and child born out of their wedlock. The wife however did not agree to subject herself and child to D.N.A. examination. Thus, adverse inference was drawn against her. The Division Bench of this Court affirmed the finding of trial Court wherein the direction was given for their D.N.A. test. The scientific evidence by way of DNA test would certainly clinch the issue of adultery."

19. On the basis of the aforesaid dictum of the Apex

Court and considering the fact that the wife had declined to

subject herself and the child for D.N.A. test, adverse inference

was drawn against her and it was concluded that the husband

proved the case of adulterous behaviour of his wife.

20. Hence, all the issues while emerged for

consideration were answered against the wife and, accordingly,

the Matrimonial Divorce Suit was allowed and a decree of

divorce was passed in favour of the husband on the grounds of

adultery.

21. Being aggrieved by the aforesaid judgment and Patna High Court MA No.460 of 2019 dt.11-05-2023

decree, the wife preferred the M.A. on the ground that the

learned Family Court failed to appreciate that the averments of

the husband that he stayed with her only till 03.03.2012 is

without any evidence and such averment could not have been

relied upon unless and until the husband discharged his burden

of proof by furnishing cogent evidence in support of such

pleading. Apart from that, the learned Family Court failed to

appreciate that the divorce petition filed by the husband did not

contain the essential particulars as per Rule 7(G)(i) of the Patna

High Court Rules, 2000 which specifically provides that the

name and address of the person who is suspected to have had

physical relationship with his wife is required to be mentioned

in the divorce petition whenever the charge of adultery is

levelled against the wife. The impugned judgment and decree

has also been challenged on the ground that the learned Family

Court failed to examine the question whether the husband had

access to the wife or not during the period when she had

conceived. Section 112 of the Evidence Act which in no

uncertain terms provides that once the validity of marriage is

proved, then there is strong presumption of the legitimacy of the

child born out of that wedlock. This presumption can only be

refuted by a strong, cogent and conclusive evidence. The said Patna High Court MA No.460 of 2019 dt.11-05-2023

presumption cannot be displaced by mere balance of

probabilities or any circumstance creating doubt. The Family

Court, it has been argued, fell into grave error of law while

drawing an adverse inference merely because the wife did not

undergo D.N.A. test even before the respondent/husband could

discharge his burden of proving whether he had access to his

wife or not.

22. In order to dispel the aforesaid contention, the

learned counsel for the husband relied upon a series of

judgments rendered by the Highest Court of land on the issue of

the necessity of D.N.A. test and in this regard heavy reliance has

been placed on the judgment in Dipanwita Roy Vs. Ronobroto

Roy, (2015) 1 SCC 365, wherein the Hon'ble Supreme Court

has held that without D.N.A. test, it would be impossible for the

husband to establish the alleged infidelity of wife. The said test

which is the most legitimate and scientifically perfect means

could be used by husband to establish his assertion of infidelity.

Simultaneously, the said test could also be used by wife to rebut

the assertions made by husband and to establish that she had not

been unfaithful, adulterous or disloyal.

23. It was further contended that the High Court in

appeal should ordinarily remand a case under Order 41 Rule 23 Patna High Court MA No.460 of 2019 dt.11-05-2023

CPC on the ground that points touching the appreciation of

evidence have not been dealt with by the Trial Court because the

first Appellate Court itself is possessed of jurisdiction to enter

into facts and appreciate the evidence. In order to buttress the

aforesaid submission, reliance has been placed on the judgments

rendered in the case of Ashwinkumar K. Patel Vs. Upendraj.

Patel and Others, (1999) 3 SCC 161 and Shivkumar and

Others Vs. Sharanabasappa and Others, (2021) 11 SCC 277.

Mr. Singh has further contended that evidence led by the

husband and a bald denial in the written statement by wife,

without any leading evidence or putting any question in the

cross-examination to the witnesses, the husband has been held

to have discharged his onus. It was contented that a strong case

of adverse inference can be made out under Section 114 of the

Evidence Act, if a party refuses to undergo D.N.A. test despite

orders by the Court. Medical test is permissible in a proceeding

under Section 13 of the Hindu Marriage Act. Reliance has been

made on a judgment passed in the case of Sharda Vs.

Dharmpal, (2003) 4 SCC 493. In the case of Ashok Kumar

Vs. Raj Gupta and Others, (2022) 1 SCC 20, also the

Supreme Court in uncertain terms has clearly held that a strong

case of adverse inference under Section 114(h) of the Evidence Patna High Court MA No.460 of 2019 dt.11-05-2023

Act is made out against the party who refuses to undergo

D.N.A. test despite the orders by the Court.

24. While relying upon a judgment of three Judges

Bench of the Hon'ble Supreme Court in the case of Selvi and

Others Vs. State of Karnataka, (2010) 7 SCC 263, Mr. Singh,

further submitted that the plea of Article 20(3) cannot be

invoked by witnesses during proceedings as a denovo

proceeding cannot be characterized as any criminal proceeding

even if there were a punitive outcome. D.N.A. test was

permissible as it did not involve testimonial depositions.

25. The learned senior advocate, further relying on the

ultrasonography reports, strenuously submitted that the reports

discussed hereinabove medically suggest that the wife had

conceived in the month of April, 2013. However, after

03.03.2012 till 14.08.2012, the spouses had no access to each

other, which fact is also corroborated by the statement of the

wife, though, she has given a vague statement in her reply that

she had gone to Chandigarh in the first week of May, which fact

does not improve her case or falsifies the assertion of the

respondent/husband. Thus, prima facie, the respondent/husband

has succeeded in proving his assertion namely of infidelity of

his wife.

Patna High Court MA No.460 of 2019 dt.11-05-2023

26. This Court has given anxious consideration to the

submissions of learned advocates for the parties and has also

perused the materials available on records.

27. Undoubtedly, a Family Court has the power to

direct a person to undergo medical tests, including a D.N.A. test

and such an order would not be in violation of the right to

personal liberty under Article 21 of the Constitution of India as

has been held in the case of Sharda Vs. Dharmpal, (2003) 4

SCC 493.

28. This Court is also conscious of the fact that a

direction to use D.N.A. profiling technology to determine the

paternity of a child is an extremely delicate and sensitive aspect.

Therefore, such tests must be directed to be conducted only

when those are eminently needed and not as a matter of course

or in a routine manner whenever such a request is made.

29. The identical issue involved in the present lis has

been painstakingly considered by the Apex Court in the case of

Aparna Ajinkya Firodia Vs. Ajinkya Arun Firodia (Arising

out of SLP (Civil) No. 9855 of 2022), wherein the Hon'ble

Court, having taken note of earlier judgments on this point,

culled out the circumstances under which a D.N.A. test of a

minor child may be directed to be conducted, which reads as Patna High Court MA No.460 of 2019 dt.11-05-2023

follows:

"i. That a DNA test of a minor child is not to be ordered routinely, in matrimonial disputes. Proof by way of DNA profiling is to be directed in matrimonial disputes involving allegations of infidelity, only in matters where there is no other mode of proving such assertions. ii. DNA tests of children born during the subsistence of a valid marriage may be directed, only when there is sufficient prima- facie material to dislodge the presumption under Section 112 of the Evidence Act. Further, if no plea has been raised as to non-access. in order to rebut the presumption under Section 112 of the Evidence Act, a DNA test may not be directed.

iii. A Court would not be justified in mechanically directing a DNA test of a child, in a case where the paternity of a child is not directly in issue, but is merely collateral to the proceeding.

iv. Merely because either of the parties have disputed a factum of paternity, it does not mean that the Court should direct DNA test or such other test to resolve the controversy. The parties should be directed to lead evidence to prove or disprove the factum of paternity and only if the Court finds it impossible to draw an inference based on such evidence, or the controversy in Patna High Court MA No.460 of 2019 dt.11-05-2023

issue cannot be resolved without DNA test, it may direct DNA test and not otherwise. In other words, only in exceptional and deserving cases, where such a test becomes indispensable to resolve the controversy the Court can direct such test.

v. While directing DNA tests as a means to prove adultery, the Court is to be mindful of the consequences thereof on the children born out of adultery, including inheritance-related consequences, social stigma, etc."

30. From the reading of the aforenoted principles, it

goes without saying that no D.N.A. test is required till the

respondent/husband is able to dislodge the presumption under

Section 112 of the Evidence Act of conclusive proof of

legitimacy. However, such a presumption is rebuttable but only

by way of establishing a strong prima facie case.

31. Further, the Apex Court having taken note of the

interest of the child, held that children have the right not to have

their legitimacy questioned frivolously in Courts of Law and

cautioned that the Courts are required to acknowledge that

children are not to be regarded like material objects, and be

subjected to forensic/DNA testing, particularly when they are

not parties to the divorce proceeding. It is imperative that

children do not become the focal point of the battle between Patna High Court MA No.460 of 2019 dt.11-05-2023

spouses. This implies that the interest of the child should be

given primary consideration in actions involving children.

32. This Court is conscious of the fact that the wife

has given a justifiable and cogent reason not to undergo the

D.N.A. test of her child because of his aliment and chances of

mental trauma to him. Hence the argument of presumption

under Section 114(h) of the Evidence Act appears to us to be

misplaced.

33. An adverse inference in law can be drawn only

against the person who refuses to answer a question. The

appellant/wife has a dual role to play viz., that of the

respondent's wife and that of the mother of her son. If the

appellant/wife refuses to do something for the purpose of

deriving a benefit to herself, an adverse inference can be drawn

against her. But in her capacity as a mother and natural

guardian, if the appellant/wife refuses to subject the child to

D.N.A. test for the protection of the interests and welfare of the

child, no adverse inference of adultery can be drawn against her.

The Apex Court in such a situation further held that by refusing

to subject the child to D.N.A. test, a mother is actually

protecting the best interests of the child. For protecting the best

interests of the child, the appellant/wife can be rewarded, but Patna High Court MA No.460 of 2019 dt.11-05-2023

never punished with an adverse inference. By taking recourse to

Section 114(h) of the Evidence Act, the respondent/husband

cannot throw the appellant/wife to a catch-22 situation.

34. Now, reverting to the facts of the present case, it

can safely be said that if one of the parties to the marriage

shows that he had no access to the other at the time when the

child could have been begotten, Section 112 of the Evidence Act

itself does not get attracted. On the contrary, if the parties have

had access to each other at the relevant point of time, the fate of

the question relating to legitimacy is sealed.

35. This Court also cannot lose sight of the fact that

instances abound of women carrying pregnancy for ten months

(41, 42 or even 43 and occasionally 44 weeks) without

problems. There are various examples of a woman carrying a

baby in womb for more than ten months.

36. The D.N.A. test cannot be used as a short cut to

establish the assertion of infidelity. This Court finds it difficult

to dislodge the presumption under Section 112 of the Evidence

Act. It would be also relevant to observe here that the

respondent/husband has also failed to provide the name and

address of the person with whom the appellant/wife had been in

relationship. In view thereof, no prima facie case is made out by Patna High Court MA No.460 of 2019 dt.11-05-2023

the respondent/husband, which would justify a direction to

conduct a D.N.A. test and in no circumstances, adverse

inference can be drawn as regards the alleged adultery on the

part of the appellant herein.

37. In view of the discussions made above, the

impugned judgment and decree dated 01.06.2019 and

14.06.2019 passed by the learned Principal Judge, Family Court,

Muzaffarpur, in Matrimonial Case No. 55 of 2014 is not found

to be sustainable and is thus set aside.

38. The matter is remitted to the Family Court,

Muzaffarpur, to decide it afresh by allowing the parties to lead

their evidences in support of their respective cases.

39. The appeal stands allowed with the observation

indicated above.

(Harish Kumar, J)

(Ashutosh Kumar, J)- I agree.

rohit/-                                           (Ashutosh Kumar, J)
AFR/NAFR                AFR
CAV DATE                21.03.2023
Uploading Date          11-05-2023
Transmission Date