Indian Kanoon - Search engine for Indian Law

Gujarat High Court

Dhirubhai Talshibhai Mer vs Dhiubhai Ukabhai Memariya @ Dhirubhai ... on 12 April, 2022

Author: A. C. Joshi

Bench: Ashokkumar C. Joshi

      C/SCA/2624/2022                                JUDGMENT DATED: 12/04/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 2624 of 2022


FOR APPROVAL AND SIGNATURE:


HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

==========================================================

1      Whether Reporters of Local Papers may be allowed                    No
       to see the judgment ?

2      To be referred to the Reporter or not ?                             No

3      Whether their Lordships wish to see the fair copy                   No
       of the judgment ?

4      Whether this case involves a substantial question                   No
       of law as to the interpretation of the Constitution
       of India or any order made thereunder ?

==========================================================
                    DHIRUBHAI TALSHIBHAI MER
                             Versus
      DHIUBHAI UKABHAI MEMARIYA @ DHIRUBHAI JESINGBHAI MER
==========================================================
Appearance:
MR HITESH V PATEL(6090) for the Petitioner(s) No. 1
for the Respondent(s) No. 1,2
==========================================================

     CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

                               Date : 12/04/2022

                               ORAL JUDGMENT

1. The Petitioner / Original Plaintiff has preferred the present Petition under Articles 226 and 227 of the Constitution of India, challenging the order passed by the learned Principal Senior Civil Judge, Jasdan below Application Exh.22 in Regular Civil Suit No. 105 of 2019 dated 27.10.2021, whereby the learned Judge has rejected the Application, instituted by the Petitioner / Page 1 of 4 Downloaded on : Tue Apr 12 21:20:02 IST 2022 C/SCA/2624/2022 JUDGMENT DATED: 12/04/2022 Original Plaintiff , to conduct the DNA test of Respondent No.1.

2. Heard learned Advocate Mr. Hitesh V. Patel for the Petitioner. Learned Advocate Mr. Patel has heavily placed reliance upon the following four judgments:

(i) Haribhai Chanabhai Vora v. Keshubhai Vora - 2005 (2) GLR 1747

(ii) Amrutlal Amthabhai Mistri v. Ashwinkumar Amrutlal Mistri - AIR 2020 GUJ 4

(iii) Rameshbhai Pochabhai Marand v. Satiben D/o Karshanbhai Chavda -

2020 JX (GUJ) 977.

(iv) Dipanwita Roy v. Ronobroto Roy - 2015 (1) SCC 365

3. Placing reliance upon the judgment in the case of Haribhai Chanabhai Vora (supra), he has submitted that the Hon'ble Court has held that DNA test is not mandatory since it is against the provisions of Constitution of India and it is the violation of personal liberty of the person concerned. However, the Court may draw the adverse inference at the final conclusion.

Learned Advocate Mr. Patel has also placed reliance upon the judgment in the case of Rameshbhai Pochabhai Marand (supra) and submitted that it is held that DNA test cannot be granted as a matter of course. However, there is a specific allegation of husband that there was no access to each other at any point of time and yet children have born to wife - under the circumstances, DNA test can be a proper course to be carried out - there is a presumption u/s 112 of Evidence Act regarding paternity of children born during 280 days of cohabitation - however, such presumption may not be available when it is shown that parties had no access to each other at the time when child could have begotten - in such a case, presumption could be rebutted - however, at the same time, rights of wife are also required to be protected by passing certain orders to the effect that husband should deposit certain amount in Trial Court -

C/SCA/2624/2022 JUDGMENT DATED: 12/04/2022 direction issued to wife and children to carry out DNA test subject to deposit a sum of Rs.1 Lac in Trial Court by husband, which will stand forfeited and handed over to wife, if husband is shown to be father of children on the basis of DNA test result - if result reveals that petitioner is not father of children, money will be refunded to petitioner - liberty granted to wife to comply or disregard the order requiring holding of DNA test - in case she declines to comply with direction issued by the Court, allegation would be determined by Trial Court by drawing a presumption as contemplated in S. 114 of Evidence Act.

Learned Advocate for the Petitioner has further placed reliance upon the judgment of the Hon'ble Supreme Court in the case of Dipanwita Roy (supra) and submitted that the Hon'ble Supreme Court has held as under:

"Hindu Marriage Act, 1955 - S. 13 - Evidence Act, 1872 - S. 45, 114 - dissolution of the marriage - divorce petition - one of the grounds for seeking divorce based on alleged adulterous life style of the petitioner wife - respondent - husband has made clear and categorical assertions in the petition alleging infidelity - use of DNA test - right to privacy of a person - respondent husband 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 - held, 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 - but for the DNA test, it would be impossible for respondent - husband to establish and confirm the assertions made in the pleadings - it is just and appropriate to record a caveat, giving the appellant - wife liberty to comply with or disregard the order passed by High Court, requiring the holding of the DNA test - in case, she accepts the direction issued by High Court, DNA test will determine conclusively the veracity of accusation levelled by respondent - husband, against her - in case, she declines to comply with the direction issued by High Court, the allegation would be determined by the concerned Court, by drawing a presumption of the nature contemplated in S. 114 of Evidence Act - appeal disposed of."

4. In view of the aforesaid judgments cited at the bar by the learned Advocate for the Petitioner, this Court is in full agreement with judgment of the Hon'ble Supreme Court in the case of Dipanwita Roy (supra) and also the judgment of this Court in the cases of Amrutlal Amthabhai Mistri (supra) and Page 3 of 4 Downloaded on : Tue Apr 12 21:20:02 IST 2022 C/SCA/2624/2022 JUDGMENT DATED: 12/04/2022 Haribhai Chanabhai Vora (supra) that the DNA test is not mandatory. Therefore, there is no error committed by the learned Principal Senior Civil Judge, Jasdan below Application Exh.22 in Regular Civil Suit No. 105 of 2019 dated 27.10.2021. The Petition therefore deserves no consideration and accordingly stands dismissed in limine.

However, it is made clear that the Court below may draw adverse inference as contemplated in S. 114 of Evidence Act at the time of adjudication in view of the judgment in case of Haribhai Chanabhai Vora v. Keshubhai Vora

- 2005 (2) GLR 1747.

(A. C. JOSHI,J) 13 / J.N.W Page 4 of 4 Downloaded on : Tue Apr 12 21:20:02 IST 2022