Hindu Marriage Act sec.13 - Divorce on the ground of Fidelity of wife who gave birth to a child by third person - DNA TEST - sec.112 and sec.114 of Evidence Act - Family court dismissed - High court allowed with a condition to deposit one lakh as compensation if D.N.A. test results in negative - Apex court held that All the judgments relied upon by the learned counsel for the appellant were on the pointed subject of the legitimacy of the child born during the subsistence of a valid marriage. The question that arises for consideration in the present appeal, pertains to the alleged infidelity of the appellant-wife. It is not the husband's desire to prove the legitimacy or illegitimacy of the child born to the appellant. The purpose of the respondent is, to establish the ingredients of Section 13(1)(ii) of the Hindu Marriage Act, 1955, namely, that after the solemnisation of the marriage of the appellant with the respondent, the appellant had voluntarily engaged in sexual intercourse, with a person other than the respondent. There can be no doubt, that the prayer made by the respondent for conducting a DNA test of the appellant's son as also of himself, was aimed at the alleged adulterous behaviour of the appellant. In the determination of the issue in hand, undoubtedly, the issue of legitimacy will also be incidentally involved. Therefore, insofar as the present controversy is concerned, Section 112 of the Indian Evidence Act would not strictly come into play-We would, however, while upholding the order passed by the High Court, consider it just and appropriate to record a caveat, giving the appellant-wife liberty to comply with or disregard the order passed by the High Court, requiring the holding of the DNA test. In case, she accepts the direction issued by the High Court, the DNA test will determine conclusively the veracity of accusation levelled by the respondent-husband, against her. In case, she declines to comply with the direction issued by the High Court, the allegation would be determined by the concerned Court, by drawing a presumption of the nature contemplated in Section 114 of the Indian Evidence Act, especially, in terms of illustration (h) thereof.2015 S.C. (2014) MSK LAW REPORTS 10


Petition  filed  under
Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to  as  the
'Act') by the respondent, inter alia, seeking dissolution  of  the  marriage
solemnised  between  the  petitioner-wife  and  the  respondent-husband,  on
25.1.2003. 


One of the grounds for seeking  divorce  was,  based  on  the  alleged
adulterous life style of the petitioner-wife. 


That the petiitoner states that the respondent has gone  astray.   
She is leading a fast life and has lived in extra marital relationship with  the
said Mr. Deven Shah, a well to do person who too is a carrier gentlemen  and
has given birth to a child as a result of her cohabitation with  Shri  Deven
Shah.  It is reported that the respondent has given birth  to  a  baby  very
recently.  The respondent is presently living at the  address  as  mentioned
in the cause title of the plaint.=


The  respondent  strongly  denies  and
disputes the statement that she is leading a  fast  life  in  extra  marital
relationship with one Mr. Deven Shah and she had given a birth  of  a  child
as  a  result  of  cohabitation  with  Shri  Deven  Shah  as  alleged.   The
respondent further denies and disputes the statement that she ever  live  in
the address mentioned in the case title in the plaint  as  alleged  and  the
petitioner is call upon to prove the statements into.


The respondent is to  state  and  submit  that  she  had  no  extra  marital
relationship with one Mr. Deven Shah.  It is pertinent to mention  that  the
respondent  is  having  a  continuous  matrimonial  relationship  with   the
petitioner and the petitioner too performed the matrimonial relation  to  as
well as the cohabitation with the  respondent  in  great  spirit  and  as  a
result of which  a male chid was  born.   At  this  stage  raising  question
regarding birth of the child would actually  put  adverse  effect  not  only
towards the family but also towards of the mind of  the  tender  aged  child
and this unscrupulous attitude is  actually  goes  against  the  concept  of
welfare of the child.”


In order to substantiate his claim, in respect of  the  infidelity  of
the petitioner-wife, and to establish that the son born to her was not  his,
the respondent-husband moved an application on 24.7.2011 seeking a DNA  test
of  himself  (the  respondent-husband)  and  the  male  child  born  to  the
petitioner-wife.=


The  petitioner-wife
strongly denied and disputed  the  statement  made  at  the  behest  of  the
respondent-husband to the effect, that she was leading a fast life in  extra
marital relationship with Mr. Deven Shah, and had given birth to a child  as
a result of her cohabitation  with  the  said  Mr.  Deven  Shah.   She  also
asserted, that she  had  a  continuous  matrimonial  relationship  with  the
respondent-husband,  and  that,   the   respondent-husband   had   factually
performed all the  matrimonial  obligations  with  her,  and  had  factually
cohabited with her.  The petitioner-wife accordingly  sought  the  dismissal
of the application filed by  the  respondent-husband,  for  a  DNA  test  of
himself and the male child born to  the  petitioner-wife.=


The High Court allowed the petition filed by the respondent-husband vide  an
order dated 6.12.2012.  The operative  part  of  the  impugned  order  dated
6.12.2012 is being extracted hereunder:
“CO No.3590 of 2012 is disposed of by setting aside the order  impugned  and
by directing the DNA test of the son of the wife  to  be  conducted  at  the
Central Forensic Science Laboratory on December  20,  2012.  The  wife  will
accompany her son to the laboratory at 11  am  when  the  petitioner  herein
will also be present and the DNA samples of the child and the  husband  will
be obtained by the laboratory in presence of  both  the  husband  and  wife.
The expenses for the procedure will be borne by the husband and  the  result
will be forwarded by the laboratory  as  expeditiously  as  possible  to  be
husband, the wife and the trial Court.  The expenses for such  purpose  will
be obtained in advance by the laboratory from the husband.

In addition, prior to December 20, 2012 the husband will deposit  a  sum  of
Rs.1 lakh with the trial court which will stand forfeited and made  over  to
the wife in the event the paternity test on the basis  of  the  DNA  results
shows the husband to be the father of the child.  In the  event  the  result
reveals that the petitioner is not the father of the child, the  money  will
be refunded by the trial Court to the petitioner herein.=


Section 112 of the Indian Evidence Act.   
The  same is being extracted hereunder:
“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.” =


All  the  judgments  relied  upon  by  the  learned  counsel  for  the
appellant were on the pointed subject of the legitimacy of  the  child  born
during the subsistence of a valid marriage.  

The question  that  arises  for
consideration in the present appeal, pertains to the alleged  infidelity  of
the  appellant-wife.    It  is  not  the  husband's  desire  to  prove   the
legitimacy or illegitimacy of the child born to the appellant.  The  purpose
of the respondent is, to establish the ingredients of Section  13(1)(ii)  of
the Hindu Marriage Act, 1955, namely, that after the  solemnisation  of  the
marriage  of  the  appellant  with  the  respondent,   the   appellant   had
voluntarily engaged in sexual intercourse, with  a  person  other  than  the
respondent.  There can be no doubt, that the prayer made by  the  respondent
for conducting a DNA test of the appellant's son as  also  of  himself,  was
aimed at  the  alleged  adulterous  behaviour  of  the  appellant.   In  the
determination of the issue in hand, undoubtedly,  the  issue  of  legitimacy
will also be incidentally  involved.   Therefore,  insofar  as  the  present
controversy is concerned, Section 112 of the Indian Evidence Act  would  not
strictly come into play. =


A similar issue came to  be  adjudicated  upon  by
this Court in Bhabani Prasad  Jena  vs.  Convenor  Secretary,  Orissa  State
Commission for Women and another, (2010) 8 SCC 633, wherein this Court  held
as under:
“21.  In a matter where paternity of a child is in issue before  the  court,
the use of DNA test is an extremely  delicate  and  sensitive  aspect.   One
view is that when  modern  science  gives  the  means  of  ascertaining  the
paternity of a child, there should not be any hesitation to use those  means
whenever the occasion requires.  The other view is that the  court  must  be
reluctant in the use of such scientific advances and tools which  result  in
invasion of  right  to  privacy  of  an  individual  and  may  not  only  be
prejudicial to the rights of the parties but may have devastating effect  on
the child.  Sometimes the result of such scientific test may  bastardise  an
innocent child even though his mother and her spouse  were  living  together
during the time of conception.=


The question that has to be answered in this case, is  in  respect  of
the alleged infidelity of the appellant-wife.   The  respondent-husband  has
made clear and categorical assertions in the petition  filed  by  him  under
Section 13 of the Hindu Marriage Act, alleging infidelity.  He has  gone  to
the extent of naming the person, who was the father of the male  child  born
to  the  appellant-wife.   It  is  in  the  process  of  substantiating  his
allegation  of  infidelity,  that  the  respondent-husband   had   made   an
application before the Family Court for conducting a DNA test,  which  would
establish whether or not, he  had  fathered  the  male  child  born  to  the
appellant-wife.   The respondent feels that it is only possible for  him  to
substantiate the  allegations  levelled  by  him  (of  the  appellant-wife's
infidelity) through a DNA test.  We agree with him.  In our  view,  but  for
the  DNA  test,  it  would  be  impossible  for  the  respondent-husband  to
establish and  confirm  the  assertions  made  in  the  pleadings.   We  are
therefore satisfied, that the direction issued by the  High  Court,  as  has
been extracted hereinabove, was fully justified.   DNA testing is  the  most
legitimate and scientifically perfect means, which the  husband  could  use,
to establish his assertion of infidelity.   This  should  simultaneously  be
taken as the most authentic, rightful and correct means also with the  wife,
for her to rebut the assertions  made  by  the  respondent-husband,  and  to
establish that she had not been unfaithful, adulterous or disloyal.  If  the
appellant-wife is right, she shall be proved to be so.
12.    We would, however, while upholding  the  order  passed  by  the  High
Court, consider it just and appropriate  to  record  a  caveat,  giving  the
appellant-wife liberty to comply with or disregard the order passed  by  the
High Court, requiring the holding of the DNA test. In case, she accepts  the
direction  issued  by  the  High  Court,  the  DNA   test   will   determine
conclusively the veracity of accusation levelled by the  respondent-husband,
against her. In case, she declines to comply with the  direction  issued  by
the High Court, the allegation would be determined by the  concerned  Court,
by drawing a presumption of the nature contemplated in Section  114  of  the
Indian Evidence Act, especially,  in  terms  of  illustration  (h)  thereof.
Section  114  as  also  illustration  (h),  referred  to  above,  are  being
extracted hereunder:
“114. Court may presume existence of certain facts – The Court  may  presume
the existence of any fact which it thinks likely to  have  happened,  regard
being had to the common course of natural events, human conduct  and  public
and private business, in their relation  to  the  facts  of  the  particular
case.

Illustration (h) -     That if a man refuses to answer a question  which  he
is not  compelled  to  answer  by  law,  the  answer,  if  given,  would  be
unfavourable to him.”

This course has been adopted to preserve the right of individual privacy  to
the extent possible.  Of course, without sacrificing the cause  of  justice.
By adopting the above  course,  the  issue  of  infidelity  alone  would  be
determined, without expressly disturbing the presumption contemplated  under
Section 112 of the Indian Evidence Act.   Even  though,  as  already  stated
above, undoubtedly the  issue  of  legitimacy  would  also  be  incidentally
involved.
 The instant appeal is disposed of in the above terms.- 
2015 S.C. (2014) MSK LAW REPORTS 10

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