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