[DNA Test for Paternity] Whether report of D.N.A. test is just a piece of expert evidence or a conclusive or a substantive piece of evidence?
D.N.A. Test is the most legitimate and scientifically perfect means, which the husband could use, to establish his assertion of infidelity- The Allahabad High Court
“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,” the bench said.
Issue before the Court
- Whether a Court in a divorce petition under Section 13 of the Hindu Marriage Act, 1955 filed by the husband on the ground of adultery can direct that the wife, either to undergo a D.N.A. test or refuse to undergo a D.N.A. test?
- But in case she elects to undergo a D.N.A. test, then findings of the D.N.A. test will determine conclusively the veracity of accusation leveled by the petitioner-husband against her?
- It is further mentioned that in case, wife refuses to undergo a D.N.A. test, then whether a presumption can be drawn by the Court against the wife that is to say whether report of D.N.A. test is just a piece of expert evidence or a conclusive or a substantive piece of evidence.
Brief facts of the Case
- A petition under Article 227 of the Constitution of India was filed by the Wife challenging the order dated 22.09.2018 passed by learned Additional Principal Judge, Family Court/F.T.C. IInd, Hamirpur in Case No. 104 of 2015, Ram Asrey vs. Smt. Neelam under Section 13 of the Hindu Marriage Act, 1955.
- According to the husband-respondent, he is not living with his wife i.e. the petitioner since 15.01.2013 and there has been no resumption of cohabitation since then. On 25.06.2014, husband had given customary divorce to the petitioner and is paying maintenance to her since then. A male child was born to the petitioner on 26.01.2016 in her paternal house.
- On the other hand, the petitioner filed her objections 28-C (2), and objected to the application filed by the husband seeking D.N.A. Test on the ground that no legal provision is mentioned in the application.
- She denied that there has been no co-habitation between the parties since 15.01.2013. She claimed that when she was pregnant then she was tortured by her husband and was driven out of the matrimonial home, therefore, she gave birth to a male child on 26.01.2016. Plea of presumption under Section 112 of the Evidence Act too has been raised by the present petitioner.
Finding and Observations made by the Court
- The High Court observed that the family court has placed reliance on the judgment of Supreme Court in case of Dipanwita Roy Vs. Ronobroto Roy, 2015 (1) SCC D 39 (SC), wherein husband had filed divorce petition on the ground of adultery. The adulterer was named and then husband had moved an application for D.N.A. Test of himself and male child born to the wife. Family Court had dismissed the application. High Court reversed the orders of the family court. Supreme Court upheld the order of the High Court despite the pleading of the wife that husband had access to her, whereas the husband had denied the same categorically.
- Reliance has also placed on the judgment of Supreme Court in case of Nandlal Wasudeo Badwaik Vs. Lata Nandlal Badwaik and another, 2014 (2) SCC 576, here, in the present case, the wife had pleaded that the husband had access to her and, in fact, the child was born in the said wedlock, but the husband had specifically pleaded that after his wife left the matrimonial home, she did not return and thereafter, he had no access to her. The wife has admitted that she had left the matrimonial home but again joined her husband. Unfortunately, none of the courts below have given any finding with regard to this plea of the husband that he had or had not any access to his wife at the time when the child could have been begotten
- Supreme Court in this case observed that, “the husband’s plea that he had no access to the wife when the child was begotten stands proved by the DNA test report and in the face of it, we cannot compel the Appellant to bear the fatherhood of a child, when the scientific reports prove to the contrary.”
- The Apex Court further ruled that “we are conscious that an innocent child may not be bastardized as the marriage between her mother and father was subsisting at the time of her birth, but in view of the DNA test reports and what we have observed above, we cannot forestall the consequence. It is denying the truth. ‘Truth must triumph’ is the hallmark of justice. (emphasis is ours). This Court has therefore clearly opined, that proof based on a DNA test would be sufficient to dislodge, a presumption under Section 112 of the Indian Evidence Act.”
- Thus, the High Court noted that when the impugned order is tested on the touchstone of the legal pronouncement of the Supreme Court, the same couldn’t be faulted with.
- Therefore, the Court did not find any illegality, infirmity or arbitrariness to interfere with the impugned order dated 22.09.2018 passed by the learned Additional Principal Judge, Family Court Hameepur. Thus, the Petition failed and was dismissed.
Case Name – Neelam v. Ram Asrey
Citation: Matters Under Article 227 No. – 7442 of 2019
Coram: Justice Vivek Agarwal
DNA Test for Paternity] Whether report of D.N.A. test is just a piece of expert evidence or a conclusive or a substantive piece of evidence?