In a petition praying for conducting a DNA test of the child, Justice Jyotsna Rewal Dua noted that according to the facts, it was evident that the couple had access to each other after marriage and that was conclusive proof for the legitimacy of the child, and presumption under section 112 of the Indian Evidence Act would be attracted and hence, DNA test cannot be ordered.
Brief Facts:
An application for conducting a DNA test of the child of a couple had been moved on under Section 13(1)(ia) and (ib) of the Hindu Marriage Act by the husband. It was dismissed by the District Court; therefore the petitioner has reached the High Court by way of the current petition.
The Husband, that is the petitioner had filed a divorce application on the grounds of cruelty and dissertation. As per the petitioner, the husband and wife got married and they consummated their marriage only once on 21.07.2015. The baby was born to the wife that is the respondent, within eight months. According to the petitioner, just 11 days after the birth, the wife asked for a separate residence in Shimla and the husband also submitted that the wife herself told him that the child did not belong to him.
The wife has denied both allegations in her reply. The petitioner then moved an application under Section 45 of the Indian Evidence Act with a prayer to carry out a DNA test, since he claims that the wife told him about the child not belonging to him multiple times.
Contentions of the Petitioner:
The Learned Counsel for the petitioner submitted that the husband had taken the plea of adultery in this divorce petition, his case is that the couple had consummated only once and the child was born even before eight months, and on that basis, the demand of DNA test was justified. It was also mentioned that the DNA test is necessary to unearth the truth and in order to do complete justice between the parties.
Contentions of the Respondent:
The Learned Counsel for the Respondent pointed out to the petitioner’s pleadings in the divorce petition that he never took the plea of denial of access to the wife. The parties had been living as husband and wife, and the husband had sought divorce on the grounds of cruelty and desertion. Further, he did not even take the plea of adultery in the divorce petition. There was no denial on the part of the petitioner regarding access to his wife, he instead had mentioned in the divorce petition that he used to visit his wife every weekend in Shimla. Hence, the counsel contended that the child was born during a valid marriage and presumption under section 112 of the Indian Evidence Act would be attracted and it was for the petitioner to prove his case.
Observations of the Court:
The Court first noted down the legal position with regard to the current issue and referred to different judgments of the Supreme Court, and then Section 112 of the Indian Evidence Act was referred, where it was noted by the Supreme Court that DNA tests of children born during the subsistence of a valid marriage may be directed only when there is a prima-facie material to dislodge the presumption under Section 112 of the Evidence Act.
Then according to the facts, the court noted that through the petitioner’s statement, it is evident that he has admitted that he had been visiting his wife every weekend after their marriage, had been residing with her at Shimla in her premise and had celebrated his son’s birth and also performed his son’s mundane ceremony with much fanfare. On this basis, the court noted that the couple had access to each other and the presumption under section 112 of the Indian Evidence Act gets attracted. The baby’s legitimacy is proved by the fact that the couple had access to each other. Further, the court noted that it is for the petitioner to prove his allegations of cruelty and desertion against the respondent and he cannot be allowed to fill up the lacuna, if any, in his evidence by seeking to conduct the DNA test of the child and the parties.
The decision of the Court:
The revision petition was dismissed as no merit was found.
Case Title: Anil Kapoor v. Dipika Chauhan
Coram: Justice Jyotsna Rewal Dua
Case No.: Civil Revision No. 66 of 2022
Advocate for the Appellants: Mr. Suhir Thakur, Senior Advocate with Mr. Karun Negi, Advocate.
Advocate for the Respondent: Mr. Peeyush Verma and Mr. Ajay Kumar, Advocates
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