Himachal Pradesh High Court
Arvinder Singh vs Of on 19 September, 2016
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CMPMO No. 11 of 2013
Reserved on: 7th September, 2016.
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Date of decision: 19th September, 2016.
Arvinder Singh Petitioner.
Versus
of
Smt. Anuradha Chauhan Respondents.
Coram
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The Hon'ble Mr.Justice Sureshwar Thakur, J.
Whether approved for reporting? .
For the petitioner: Mr. N.K. Thakur, Senior Advocate with Ms. Jamuna Pathik.
For the respondents: Mr. Abhay Kaushal, Advocate vice to Mr. T.S. Chauhan, Advocate. Sureshwar Thakur, J.
The instant petition stands directed against the impugned rendition of the learned Additional District Judge, Fast Track Court, Una, District Una, H.P., whereby it dismissed an application preferred before it by the ::: Downloaded on - 15/04/2017 21:15:12 :::HCHP 2 petitioner with a prayer therein for its ordering the holding of a DNA test by the expert concerned for determining the paternity of minor Aditiya. The .
application aforesaid stood instituted in a Hindu Marriage Petition at the instance of the petitioner herein, wherein there is a pointed averment of there existing no cohabitation inter se the petitioner and the respondent-
of wife since 10.8.2006 upto 28.4.2008 whereat the respondent gave birth to minor Aditiya. Hence, it stood rt averred by the petitioner of minor Aditiya delivered by the respondent on 28.4.2008 standing not begotten from his loins rather his birth being attributable to the respondent No.1 herein holding an adulterous relationship with an unknown person. In the impugned rendition, it stands propounded of the stigma of bastardization standing imputed to the minor child in the event of the out-come of the DNA profiling of the blood samples of the petitioner herein with the DNA profiling of the blood samples of the minor child standing opined by the expert concerned to be not matching, constituting ::: Downloaded on - 15/04/2017 21:15:12 :::HCHP 3 the predominant reason for its rejecting the apposite application preferred therebefore by the petitioner herein besides therein it stands propounded of the apposite .
application preferred therebefore at the instance of the petitioner herein entailing rejection on the score of its standing preferred thereat at a inchoate stage significantly when evidence remained yet to be adduced of on the apposite issues.
2. The impugned rendition of the learned trial Court is rt completely off the mark qua the legal principles to be borne in mind by Courts of law while adjudicating upon an application preferred therebefore by a person, who denies, on account of infidelity or unchastity of his wife, the factum of his fathering the child delivered by his purportedly unchaste wife. The apt legal principles whereof stand encapsulated in a judgement of the Hon'ble Apex Court report in Bhabani Prasad Jena Vs. Convenor Secretary, Orissa State Commission for Women and another, (2010) 8 SCC 633, relevant paragraphs stand extracted hereinafter:
::: Downloaded on - 15/04/2017 21:15:12 :::HCHP 4"21. In a matter where paternity of a child is in issue before the court, the use of DNA is an extremely delicate and sensitive aspect. One view is that when modern science gives 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 .
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.
22. In our view, when there is apparent of conflict between the right to privacy of a person not to submit himself forcibly to medical examination and duty of the court to reach the truth, the court must exercise its discretion only after balancing the interests of the parties and on due consideration rt whether for a just decision in the matter, DNA is eminently needed. DNA in a matter relating to paternity of a child should not be directed by the court as a matter of course or in a routine manner, whenever such a request is made. The court has to consider diverse aspects including presumption under Section 112 of the Evidence Act; pros and cons of such order and the test of 'eminent need' whether it is not possible for the court to reach the truth without use of such test.
23. There is no conflict in the two decisions of this Court, namely, Goutam Kundu1 and Sharda2 . In Goutam Kundu1 , it has been laid down that courts in India cannot order blood test as a matter of course and such prayers cannot be granted to have roving inquiry; there must be strong prima facie case and court must carefully examine as to what would be the consequence of ordering the blood test. In the case of Sharda2 while concluding that a matrimonial court has power to order a person to undergo a medical test, it was reiterated that the court should exercise such a power if the applicant has a strong prima facie case and there is sufficient material before the court. Obviously, therefore, any order for DNA can be given by the court only if a strong prima facie case is made out for such a course.::: Downloaded on - 15/04/2017 21:15:12 :::HCHP 5
24 Insofar as the present case is concerned, we have already held that the State Commission has no authority, competence or power to order DNA. Looking to the nature of proceedings with which the High Court was concerned, it has to be held that High Court exceeded its jurisdiction in passing the impugned order. Strangely, the High Court over-
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looked a very material aspect that the matrimonial dispute between the parties is already pending in the court of competent jurisdiction and all aspects concerning matrimonial dispute raised by the parties in that case shall be adjudicated and determined by that Court. Should an issue arise before the matrimonial court concerning the paternity of the child, obviously that court will be competent to pass an appropriate order at the relevant time in accordance with law. In any view of the matter, it is of not possible to sustain the order passed by the High Court."
3. Since in the afore extracted paragraphs of the rt rendition of the Hon'ble Apex Court, the competent court seized of an issue devolving upon the paternity of a child stands clothed with jurisdiction to pass an order for the holding of DNA profiling of the person who denies his fathering the child delivered by his purportedly unchaste wife alongwith the DNA profiling of the child, paternity whereof stands denied by the aggrieved. Since the learned trial Court stood seized of a Hindu Marriage Petition instituted by the petitioner herein with pointed and categorical averments constituted therein of the minor child delivered by the respondent standing not ::: Downloaded on - 15/04/2017 21:15:12 :::HCHP 6 begotten from his loins rather his birth being an outcome of an adulterous relationship which the respondent entered into with an unknown person, aroused by the .
factum of both living apart or both not cohabiting since August, 2006, uptil the respondent delivered the baby child thereupon its constituting a vivid portrayal of both the petitioner and the respondent not holding any of opportunity to stand engaged in sexual intercourse, necessarily hence it was incumbent upon the learned rt trial Court to for setting at rest the pertinent issue of minor Aditiya standing begotten or not begotten from the loins of the petitioner herein, to order for the holding by an expert concerned of DNA profiling of blood samples of minor Aditiya along with the DNA profiling of the blood samples of the petitioner herein. The ordering of by the learned trial Court the holding of the apposite DNA test by an expert concerned would also have set at rest the assertion of the petitioner qua infidelity of the respondent. Furthermore, the holding of a DNA test and its outcome both being a well approbated scientific ::: Downloaded on - 15/04/2017 21:15:12 :::HCHP 7 method for setting at rest the pertinent issue qua the paternity of a child, issue whereof arose in a litigation qua which the learned trial Court stood seized of, its standing .
ordered by it to be held by the expert concerned was apt, significantly given its scientificity it would have forthrightly clinched the issue qua minor Aditiya standing or standing not begotten from the loins of the petitioner of herein. Even though the holding of a DNA test is conclusive besides its outcome is the best evidence for rt determining the issue of paternity nonetheless the learned trial Court in declining the prayer of the petitioner qua its standing directed to be held, appears to stand guided by the stigma of bastardization standing imputed to the minor child in case the out come of the DNA test leans in favour of the assertion set up by the petitioner qua his not fathering minor child Aditiya.
However, the aforesaid obstacle of a stigma of bastardization standing imputed to the minor child in case the out come of the DNA test leans in favour of the petitioner, as stands propounded by the learned trial ::: Downloaded on - 15/04/2017 21:15:12 :::HCHP 8 Court for its omitting to order for its holding, is a flimsy and specious reason which stands benumbed by a judgement of the Apex Court reported in Nandlal .
Wasudeo Badwaik vs. Lata Nandlal Badwaik and another, (2014) 2 SCC 576, relevant paragraphs 17 to 19 stand extracted hereinafter.
"17 We may remember that Section 112 of the of Evidence Act was enacted at a time when the modern scientific advancement and DNA test were not even in contemplation of the Legislature. The result of DNA test is said to be scientifically accurate. rt Although Section 112 raises a presumption of conclusive proof on satisfaction of the conditions enumerated therein but the same is rebuttable. The presumption may afford legitimate means of arriving at an affirmative legal conclusion. While the truth or fact is known, in our opinion, there is no need or room for any presumption. Where there is evidence to the contrary, the presumption is rebuttable and must yield to proof. Interest of justice is best served by ascertaining the truth and the court should be furnished with the best available science and may not be left to bank upon presumptions, unless science has no answer to the facts in issue. In our opinion, when there is a conflict between a conclusive proof envisaged under law and a proof based on scientific advancement accepted by the world community to be correct, the latter must prevail over the former.
18 We must understand the distinction between a legal fiction and the presumption of a fact. Legal fiction assumes existence of a fact which may not really exist. However presumption of a fact depends ::: Downloaded on - 15/04/2017 21:15:12 :::HCHP 9 on satisfaction of certain circumstances. Those circumstances logically would lead to the fact sought to be presumed. Section 112 of the Evidence Act does not create a legal fiction but provides for presumption.
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19. 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. We are conscious that an innocent child may not be bastardized as the marriage between of 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."
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4. Given the expostulations enunciated in the afore extracted relevant paragraphs of the verdict of the Hon'ble Apex Court qua the consequence of the minor child standing imputed with a stigma of bastardization in case the out come of the DNA test leans in favour of the aggrieved, not operating as a deterrent for the Court concerned whereat the apposite application is laid, to hence order its holding, re-enforcingly unsettles the force of the reason embodied in the impugned rendition qua a stigma of bastardization standing imputed to the minor child in case the out come of the DNA test leans in favour ::: Downloaded on - 15/04/2017 21:15:12 :::HCHP 10 of the petitioner herein hence its concomitantly standing constrained to not order for the holding of a DNA test by the expert concerned.
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5. Moreover in the impugned rendition, the learned trial Court had while rejecting the apposite application preferred before it by the petitioner herein appears to draw succor from the provisions of Section of 112 of the Indian Evidence Act wherein a contemplation exists of a child born during the continuance of a valid rt marriage and within 280 days after its dissolution, the mother remaining unmarried, constituting conclusive proof, of the child being the legitimate son of that man unless it is demonstrated by cogent proof qua the marital partners holding no access to each other at any time when the child could have been begotten, to conclude of with proof thereon yet remaining to be adduced at the instance of the petitioner qua the apposite issue of his holding no access to the respondent at any time the child could have been begotten, also when its probative worth yet being not available to be weighed by the learned trial ::: Downloaded on - 15/04/2017 21:15:12 :::HCHP 11 Court, vigour whereof would stand pronounced in its rendition in the Hindu Marriage Petition preferred by the petitioner before it, carrying a consequential effect of the .
apposite application standing preferred at an inchoate stage besides its preferment being an illusory exercise reiteratedly preeminently when in rebuttal to the conclusivity qua the paternity of the child contemplated of in the earlier part of the provisions of Section 112 of the Indian Evidence Act, the apposite oral evidence is yet to rt be adduced before it. However, the aforesaid reason ought to suffer the fate of its being axed by this Court.
The reason for proceeding to do so, is of even if oral proof if any which may stand adduced before the learned trial Court by the petitioner herein qua his holding no access to the respondent at the time when minor Aditiya would have been begotten, evidence whereof may unsettle the presumption qua conclusivity of paternity of a child on satiation standing begotten of the ingredients constituted in the earlier part of Section 112 of the Indian Evidence Act which stands extracted hereinafter:
::: Downloaded on - 15/04/2017 21:15:12 :::HCHP 12"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."
6. Nonetheless even in the face of adduction of the of aforesaid apposite proof by the petitioner for benumbing besides rebutting the aforesaid presumption, apart therefrom when its probative vigour and worth yet not rt standing adjudicated upon by the learned trial Court, cannot oust any concert of the petitioner herein to also displace or dislodge the presumption aforesaid constituted in the earlier part of Section 112 of the Indian Evidence Act, in the event of satiation of ingredients enshrined therein, by his seeking through an apposite application preferred before it, the ordering by the learned trial Court qua the holding by the expert concerned of the DNA profiling of the blood samples of both petitioner and minor Aditiya. The aforesaid concert stands approbated by the Hon'ble Apex Court in the ::: Downloaded on - 15/04/2017 21:15:12 :::HCHP 13 relevant portion of its verdict as stands extracted hereinabove to be a tenable course for unsettling or dislodging the presumption constituted qua conclusivity .
of paternity of child on satiation standing begotten of the parameters enshrined in the earlier part of Section 112 of the Indian Evidence Act. In sequel, it was inapt for the learned trial Court to merely for adduction of oral proof of yet at the instance of the petitioner before the learned trial Court for dislodging the presumption qua the rt conclusivity of paternity of minor Aditiya on satiation of the ingredients enshrined in its earlier part standing begotten, proof whereof stands comprised in his unveiling qua his holding no access to the respondent at any time when the child could have been begotten tenacity whereof yet remaining unadjudicated, hence conclude of the apposite application entailing dismissal especially when the holding of a DNA test stands mandated in the afore extracted relevant paragraphs of the rendition of the Hon'ble Apex Court to be the best besides a scientific mode to conclusively determine the ::: Downloaded on - 15/04/2017 21:15:12 :::HCHP 14 paternity of minor Aditiya besides it being an apposite mode to display, the presumption qua the conclusivity of paternity of minor Aditiya created by earlier part of .
Section 112 of the Indian Evidence Act on purported satiation of ingredients enshrined therein, hence getting scuttled.
7. In aftermath, the rendition of the learned trial Court of is set-aside. However, it would be just and fair to record a caveat of the respondent being at liberty to on behalf of rt minor Aditiya refrain the latter from providing his blood samples for theirs being matched along with the DNA profiling of the blood sample of the petitioner herein.
She, in case, on behalf of minor Aditiya withholds her to undergo DNA test, then it shall be open to the learned trial Court to draw in terms of the illustration in Section 114(h) of the Indian Evidence Act, which stands extracted hereinafter, an adverse inference against the respondent.
"(h) That if a man refuses to answer a question which he is not compelled to answer unfavourable to the person who withholds it:"
::: Downloaded on - 15/04/2017 21:15:12 :::HCHP 15The petition stands disposed of in the aforesaid terms.
Pending applications, if any, also stand disposed of.
19th September, 2016. (Sureshwar Thakur) .
(Jai) Judge.
of
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