Calcutta High Court (Appellete Side)
Sri Sukdeb Barman vs Smt. Kakali Barman (Manna) on 16 August, 2019
1 S/L. 147 & 148.
August 16, 2019.
MNS.
C. O. No. 2619 of 2019 with C. O. No. 2620 of 2019 Sri Sukdeb Barman Vs. Smt. Kakali Barman (Manna) Mr. Tapas Kumar Sinha, Mr. Subir Sabud ... for the petitioner.
Ms. Susmita Saha Dutta, Mr. Niladri Saha ...for the opposite party.
C. O. No. 2619 of 2019 and C. O. No. 2620 of 2019 are taken up together for hearing.
In C. O. No. 2620 of 2019, the petitioner- husband has challenged an order dated November 3, 2017, regarding certain observations made against the petitioner in such order.
However, in view of the admitted position that the said order was partially challenged in a previous revisional application before this Court and disposed of, C. O. No. 2620 of 2019 is held not to be maintainable on the principle of waiver.
Accordingly, C. O. No. 2620 of 2019 is dismissed on contest. However, it is made clear that any observations made in the impugned order were for the purpose of deciding the interlocutory applications therein and cannot have any 2 effect at any further stage of the suit beyond the scope of such applications, which were decided therein.
There will be no order as to costs.
C. O. No. 2619 of 2019 has been preferred challenging an order passed by the trial court rejecting the petitioner's application for drawing the presumption that the petitioner is not the father of the two sons of the opposite party.
Upon hearing both sides, it is apparent that previously a revisional application had been preferred in this Court for enforcing an order directing the said two children to be subjected to a DNA test to ascertain their paternity.
This Court, by an order dated December 14, 2018 passed in C. O. No. 2146 of 2018, had observed, inter alia, that the trial court was correct in observing that it was open to the discretion of the trial court to draw adverse inference, if at all, subject to hearing the parties, at the final trial of the suit.
The said order of this Court was challenged in a special leave petition, bearing Special Leave Petition No. 618 of 2019. It was held by the Supreme Court, while disposing of such special leave petition, that as and when the issue, which is the subject matter of C. O. No. 2146 of 2018, would be decided by the trial court on its merits, keeping in view the law laid down by the Supreme Court in Dipanwita Roy v. Ronobroto Roy [(2015) 1 SCC 365].
It is contended by learned counsel for the petitioner that the trial court acted without jurisdiction in refusing to apply the law laid down in Dipanwita Roy (supra), contrary to the direction of the Supreme Court.
3
It is further submitted that the trial court acted without jurisdiction in holding that the refusal of the children to give their blood samples cannot be a ground to presume that the petitioner is not the biological father of the said two sons.
Such contentions are controverted on behalf of the opposite party-wife. Learned counsel for the opposite party submits that the order dated November 3, 2017 had been challenged in its entirety, but was partially interfered with by this Court and as such, the observations made therein cannot be in contention now.
It is further submitted that the court below correctly observed that the opposite party could not be held responsible for the refusal of the two children to subject themselves to a DNA test and as such, no adverse inference could be drawn against the opposite party.
Since the suit has been filed, inter alia, on the ground of adultery, the petitioner has to prove such contention by cogent evidence. One of the components of such contention might have been the DNA test of the two children of the opposite party. However, such DNA test was refused by this Court and not interfered with by the Supreme Court, primarily on the ground that the children had attained the age of intelligent preference and one of them had attained majority at the relevant juncture.
It is doubtful as to whether such refusal could bind the opposite party, who is a third party to such refusal, for the purpose of establishing the paternity of the children.
It is seen from Section 114, illustration (h) and Section 148(4) of the Evidence Act, which are relied on by the petitioner, that when a person refuses to answer a question, which he is not compelled to answer by law, the answer could be presumed to be unfavourable to him and an adverse inference could be drawn against such person. 4 However, since the refusal, in the present case, was by the two children of the opposite party, it is arguable as to whether such refusal could bind the opposite party-wife, although adverse inference might be drawn against the sons as far as their paternity and related rights of maintenance was concerned. In so far as the ground of adultery is concerned, since the Supreme Court itself kept it open for being decided when it fell for consideration at an appropriate stage, upon consideration of the ratio laid in Dipanwita Roy (supra), it would be premature either for the trial court or for this Court to arrive at a conclusive finding as to such adverse inference or the presumptive value of the refusal by the sons to have their DNA tested.
Accordingly, C. O. No. 2619 of 2019 is disposed of without interfering with the impugned order, but making it clear that that the trial court will not be unduly influenced by any of the observations made in the impugned order at the time of deciding the issue of the parentage of the children-in-question and/or the question of adultery, if contended at the time of trial.
The trial court will be free to decide such issues at the trial of the suit independently, on the merits of such issues, in accordance with law.
There will be no order as to costs.
Urgent photostat certified copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.
(Sabyasachi Bhattacharyya, J.) 5