Bombay High Court
Sadashiv Mallikarjun Kheradkar vs Smt. Nandini Sadashiv Kheradkar And ... on 24 July, 1995
Equivalent citations: 1996(1)BOMCR454, (1995)687BOMLR97, 1995CRILJ4090, 1995(2)MHLJ733
JUDGMENT
1. An interesting question of law arises in this petition regarding the powers of the Court in ordering the blood examination when there is dispute about the parentage of the child. This Writ Petition is directed against the Order dated 21-10-1993 below Exhibits 46 and 52 in H.M. Petition No. 119 of 1988. Rule returnable forthwith. By consent Petition is taken up for final hearing. I have heard of both the Counsel, the both the Counsel at length.
2. Few facts which are necessary for the disposal of this petition are as follows :
The petitioner-husband filed a Petition in the trial Court for a decree for divorce against his wife, the first respondent. The alleged paramour of the first Respondent is made as Respondent No. 2.
The main allegation in the Petition is that after marriage which took place on 8-3-1983, the Petitioner and the first Respondent were residing at Kolhapur. It is stated that the wife deserted the Petitioner and left the matrimonial home and went away to her parents house on 27-5-1983. There is no co-habitation between the Petitioner and the first Respondent after 27-5-1983 ... It is further alleged in the Petition that even from February, 1983 till 27-5-1983, there was no sexual intercourse between the husband and wife since the wife was suffering from stomach ache and problem of menstruation. Then it is alleged that a child was born to the first Respondent on 3-1-1984, though as per manipulated record, the said child is shown to have been born on 30-12-1983. The child is named as Sunil. According to the Petitioner, he is not the father of the child. His allegation is that the first Respondent has given birth to this child through illicit relationship with somebody and most likely, the second Respondent. Hence the Petition is filed for divorce on the ground of adultery on the part of the first Respondent.
3. The first respondent resisted the suit by filing written statement. The allegation of adultery is denied. The allegation that the child is born through somebody is also denied.
4. When the matter came up for inquiry, an application was filed by the husband for blood examination of himself, his wife and the child to determine the parentage of the child. This was opposed by the wife. After hearing both the sides, the learned trial Court rejected the application. Being aggrieved by that Order, the husband has come up with this writ petition.
5. The learned counsel for the petitioner has questioned the correctness and legality of the impugned order. It was argued that in the facts and circumstances of the case, the Court has ample powers to direct the wife and the child to give blood samples for being examined with the blood sample of the petitioner for deciding whether either he is or he is not the father of child Sunil. On the other hand, the learned counsel for the respondent supported the impugned order and contended that the wife cannot be compelled to give her blood sample and further it was argued that the petitioner has not made out a case for such an order being passed.
6. The short question that arises for determination is : "whether the Court has powers to direct a party to give blood sample and further the Court can compel a party to give such blood sample ?"
7. The learned counsel for the respondent contended that having regard to the statutory presumption available under S. 112 of the Evidence Act, there is legal presumption that the child is born to the petitioner and therefore, no further inquiry is necessary in the matter. That is the view, which appears to have been taken by the trial Court, that in the absence of pleading about non-access, the husband cannot get over the presumption under S. 112 of the Evidence Act. It is true that S. 112 raises a conclusive presumption that if a child is born during the wedlock it shall be presumed that the child is born to the spouses unless it is proved that there was no access between the husband and wife during the period when the child could have been begotten. The learned trial Judge observed that the husband's attempt to get the blood examination cannot be accepted since he is bound by the legal presumption and that he has not made out a case to get over the legal presumption. The learned trial Judge has observed in paragraph 5 of the impugned order that the theory of non-access is not in strict sense pleaded by the petitioner. I have already pointed out that there is sufficient pleading that during February 1983 to 27-5-1983 there was no sexual intercourse between the petitioner and his wife, and after 27-5-1983, admittedly, the respondent has gone away to her parents house and there is no co-habitation between the petitioner and respondent thereafterwards, till the birth of the child or till now. Therefore, the trial Court's observation that there was no sufficient pleading on this point cannot be accepted. In fact that was the only ground on which the trial Court has rejected the application of the petitioner.
8. There is no provision either in the Evidence Act or in the Hindu Marriage Act or in the Code of Civil Procedure or in the Code of Criminal Procedure providing for direction to a party to submit himself or herself for giving blood sample for examination. In the absence of such a provision, the Court can always invoke S. 151 of the Code of Civil Procedure for giving appropriate directions in the larger interests of justice. We have the latest authority of the Apex Court Goutam Kundu v. State of West Bengal, where the question of paternity of child and blood test was discussed and certain guidelines have been laid down. The Apex Court has observed that the Court has power to direct the blood examination but it should not be done as a matter of course or to have a roving inquiry. There must be some strong prima facie case to be established by the husband to show non-access in order to get over the legal presumption under S. 112 of the Evidence Act and Supreme Court has also observed that nobody can be compelled to give blood sample. Therefore, the position is that the Court has power to give a direction to a party to give blood sample for the purpose of examination of the same but the party cannot be compelled to give blood for testing purpose. In other words, the Court can direct a party and if the party fails to obey the direction, the Court cannot compel the party to give blood sample. In such circumstances when there is a direction and non-compliance by a party, the only thing is that the Court may draw an adverse inference against the party who fails to give blood samples in spite of the direction of the Court.
9. In my view, since there is sufficient foundation led in the pleading and the petitioner is seriously asserting that the child is not born to him, in the interest of justice, I feel that the respondent should be called upon to give blood sample and if she fails to obey this order, nothing can be done to compel her, but it is left to the Court to draw such adverse inference depending upon the circumstances of the case.
10. In my view, there is a serious lacuna in the Evidence Act since no provision is there providing for blood test in the case of disputed parentage. We must bare in mind that the Evidence Act was enacted in 1872 when there was no scope for a divorce in Hindu Law. According to Hindu Law, marriage is a sacrament and not a contract; once there is a marriage it lasts till the death of a spouse. It is only in 20th Century and that too, as recently as in 1955, the Hindu Marriage Act came into force which provided for divorce on many grounds including adultery. Further, during 19th Century when the Evidence Act came to be enacted, there was no development of the science about blood grouping or blood test to be performed to find out the parentage of a child. It is only in the early part of 20th Century and then in the later years, the medical science has developed very much and now the position is that by blood test we can find out whether a particular person is the father of a child or not. Further, though the tests do not conclusively prove that a person is the father of a particular child, the test is certain so far as the negative aspect is concerned that a particular person is not the father of a particular child.
11. In this connection, a reference may be made to 1975 Ker LT 533 (Ker), Vasu v. Santha, where it is observed that in view of the legal presumption under S. 112 of the Evidence Act, that a child born during the wedlock has to be presumed as a legitimate child, unless there is no access between the husband and wife during the period when the child could have been begotten. The learned single Judge who decided that case observed in para 4 at page 536 :
"Even proof that the mother committed adultery with any number of men will not by itself suffice for proving the illegitimacy of the child, if she had access to her husband during the time the child could have been begotten."
The learned Judge further observed that :
"No doubt, this may in some cases require a husband to maintain children of whom he is probably not their father."
Then the learned Judge observed as follows :
"..... the legislature alone can change the rigour of the law and not the Court. The Court cannot base a conclusion on evidence different from that required by the law or decide on a balance of probability which will be the result if blood test evidence is accepted."
In that case, the wife had refused to give consent for giving the blood. It was held that the wife cannot be forced to give blood sample. But leaned Judge also observed that in such a case when a party refuses to have blood test the Court can draw an adverse inference.
12. In Hargovind Soni v. Ramdulari, the High Court considered the question about blood grouping test to determine paternity of a child. In that case the trial Court had dismissed the petition on the ground of adultery and held that the two children were born to wife under the presumption under S. 112 of the Evidence Act. It was also seen that during the pendency of the case, there was one more child born to the wife. But she refused to give blood sample. In the High Court the wife agreed for the blood test and samples of blood of wife, husband and children were ordered to be tested by the High Court and on the basis of the expert's evidence and latest medical jurisprudence on this point, it was held that the first two children must be deemed to be of the father by applying the presumption under S. 112 of the Evidence Act, but so far as the third child is concerned, it was held to be born to a different person other than the husband on the basis of the blood test and on this ground the adultery was held proved and divorce was granted.
13. There may be instances where the husband and wife be living together and the wife may have gone astray and then delivered a child through illicit connection. But in view of legal presumption under S. 112 of the Evidence Act, the husband cannot be allowed to prove that the child is not born to him since husband and wife are living together, having access to each other, even if it is proved that wife had some illicit relationship with another person. What should be done in such a case is a question that has cropped up in my mind.
14. The Court can take judicial notice that there are many cases against the husband for murdering his wife on the ground of infidelity on the part of the wife. There are many reported cases of the High Court and Supreme Court where the husband has been convicted for having murdered his wife for having illicit relationship with other person or finding his wife in a compromising position with her paramour. (Vide 1992 (3) Crimes 619 : 1992 Cri LJ 3857) Acharya v. State of Kerala; Sardar Singh v. State (Delhi Admn. Delhi); Nika Ram v. State of H.P. and also see commentaries at pages 1096 to 1100 in the Law of Crimes by Ratanlal 23rd Edition). There are also instances where the wife has killed the husband when she came to know that the husband has come to know of her illicit relationship with another man. I may quote two recent cases where wife was charged for the murder of her husband which are Shivappa v. State of Karnataka and T. Anjanamma v. State of Andhra Pradesh. We may also take judicial notice that many cases are coming to Court for divorce where husband alleges adultery on the part of the wife and the wife alleging adultery on the part of the husband. In the very nature of things adultery cannot be proved by direct evidence. It is a thing which always takes place secretly and clandestinely. In such circumstances, if there is some scientific evidence available, it will go a along way in assisting the Court to come to a conclusion that the adultery is proved or not. But if we go by the rigour or the presumption under S. 112 of the Evidence Act, no husband can be permitted to prove that the child born to a wife is not his, if the husband and wife are living together even if wife is proved to be living in adultery. It is also true that the Court cannot legislate on this matter and the Courts are helpless so long as S. 112 of the Evidence Act is on the Statute Book and no provision is made for testing of blood of the concerned person. As seen from the many criminal cases which are referred to above, where husband is charged in many cases for murdering his wife on the ground of her infidelity and there are few cases where even the wife is charged for murdering her husband on the ground that he has come to know of her illicit affairs, there must be some provision in law to enable the Court to show that notwithstanding that the husband and wife are living together, the wife has given birth to a child born through another person. I, therefore, feel that in view of the present trend in social life the concerned law on the point requires reconsideration.
15. There may be some cases where the wife alleges that the husband is having an affair with another woman and the said woman has given birth to a child born to her husband. Then the wife may give an application for the blood sample of the husband, his lover and the child may be compared to find out whether the husband is the father of that child in order to prove adultery on the part of the husband.
16. Similarly, there are reported instances of theft of a newly born child in hospitals or exchange of newly born children either through inadvertance or otherwise in a maternity home. Even in such cases of dispute of maternity, blood group examination will be helpful to form an opinion about the parentage of the child. I, therefore, feel that S. 112 of the Evidence Act requires reconsideration at the hands of the law makers having regard to the present social life and the number of cases of adultery coming to Court for divorce in the matrimonial Courts. The law makers may examine whether presumption under S. 112 of the Evidence Act should be changed and if so, to what extent. Then the law makers also may examine whether a special provision should be made in the Evidence Act to provide for taking blood samples of the parties concerned and the child concerned in order to decide about the paternity or maternity of the child. In the very nature of things, even if such a provision is made and the Court directs a party to give blood sample and the party refuses, the Court cannot enforce the individual to give blood who refuses to give sample blood. In such a case, the law may also provide as to how the order of the Court should be complied with or as to what should happen if the order of the Court is not complied. One consequence will be that the Court may draw an adverse inference from the conduct of the party who refuses to give blood sample in spite of the directions of the Court; then the law makers may also consider the question whether the pleading of a party who refuses to obey the order of the Court may be struck of or may be prevented from prosecuting the case or from defending the case. In this connection I may point out that in certain rent control laws, for example, the Karnataka Rent Act, there is a provision that a tenant must pay all the arrears of rent or otherwise, he will not be permitted to contest the eviction suit and the landlord is entitled to an order of eviction forthwith. Even if tenant files a revision petition, he cannot prosecute the revision petition unless all the arrears of rent due on the date of filling of the petition are deposited. That means if a party does not obey the direction of the Court or certain provision of law, the Court can always strike off the pleading. I have made these suggestions so that the Ministry of Law and the Law Commission may invite public debate on this subject and then take appropriate remedial provisions.
17. In the result, the writ petition is allowed. The trial Court shall direct the first respondent-wife along with child Sunil to appear before the Court and state whether she is willing to give blood sample of herself and the child for the purpose of comparison along with the petitioner's blood sample. If she agrees, then the trial Court shall give necessary directions as to in which hospital, the blood samples are to be drawn and to whom the blood samples are to be sent for the purpose of comparison and giving opinion.
If the wife declines to give blood sample or is not willing to give blood sample, then the trial Court shall record the same in the Roznama and after trial draw such adverse inference against the wife as may be permissible in the facts and circumstances of the case in the light of the pleadings, available evidence and the conduct of the parties.
Registry is directed to send copies of this judgment to the Secretary, Ministry of Law, Government of India, New Delhi and also to the Secretary, Law Commission of India, New Delhi, for considering the question of amendment of S. 112 of the Evidence Act and for amending the Evidence Act to provide the circumstances under which blood samples can be taken from the spouses and their child or others to decide the disputed parentage or for any other test like DNA or any other scientific test and the circumstances under which such tests can be taken and other details as mentioned in the above judgment.
18. Order accordingly.