Himachal Pradesh High Court
Shri Diwan Chand vs Smt. Simmi Saini on 18 August, 2015
Author: Rajiv Sharma
Bench: Rajiv Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
FAO No. 417 of 2007.
Reserved on: 17.8.2015.
Decided on: 18.8.2015.
.
Shri Diwan Chand ......Appellant.
Versus
Smt. Simmi Saini .......Respondent.
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
Whether approved for reporting? 1 Yes.
For the appellant: Mr. N.K.Thakur, Sr. Advocate, with Mr. Rohit Bharoll, Advocate.
For the respondent: Mr. T.S.Chauhan, Advocate.
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Justice Rajiv Sharma, J.
This appeal is directed against the judgment dated 30.8.2007, rt rendered by the learned Addl. District Judge, Una, H.P., in HMA Petition No. 22 of 2001.
2. Key facts, necessary for the adjudication of this appeal are that the appellant has instituted the petition under Section 13 of the Hindu marriage Act, 1955 (hereinafter referred to as the Act), for dissolution of marriage by decree of divorce. The marriage between the appellant and the respondent was solemnized on 25.1.1998, according to Hindu rites, customs and ceremonies. The respondent along with her brother and sister threatened the appellant to leave the job in Bhatinda. They compelled him to stay in his native village. The appellant had no alternative but to accede to the wishes of the respondent and her brother. He left the job and started living at his ancestral village and opened the cycle repair shop. He was mentally harassed by the respondent. She used to threaten him to consume poison and to jump into the well to falsely implicate the appellant in a criminal case. The respondent neither conceived from the loins of the 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 18:46:18 :::HCHP 2appellant nor any child was born out of the womb of the respondent. The respondent, in connivance with Dr. Angra and one nurse, namely, Nirmal Bhatti alias Sundri working at Zonal Hospital Una, got incorporated wrong .
entries qua her pregnancy and wrongly got entered the factum of delivery of child on 2.2.2002.
3. The petition was contested by the respondent by filing reply. The allegations made in the petition were denied. According to the respondent, of one male child was born on 2.2.2002 out of the wed-lock. The appellant had himself left the job. He used to consume alcohol and she used to object to his drinking habits.
4. rt The rejoinder was filed by the appellant. The issues were framed by the learned Addl. District Judge, Una on 27.9.2002 and 22.10.2005. The petition was dismissed by the learned Addl. District Judge, Una on 30.8.2007.
5. I have heard the learned counsel for the parties and also gone through the record and judgment dated 30.8.2007, carefully.
6. Mr. N.K.Thakur, Sr. Advocate, for the appellant has vehemently argued that his client has been subjected to physical and mental cruelty by the respondent. He then contended that child was not born out of the wed-
lock on 2.2.2002. On the other hand, Mr. T.S.Chauhan, Advocate, for the respondent has supported the judgment of the learned trial Court dated 30.8.2007.
7. The appellant has appeared as PW-5. According to him, the marriage was consummated and no child was born from the wed-lock. He got his wife medically checked up at Bathinda. The doctor opined that the ::: Downloaded on - 15/04/2017 18:46:18 :::HCHP 3 respondent could not conceive. He produced the medical reports Ext. P-1 to P-3. The factum of medical examination of the respondent and the alleged ultrasound at Bathinda, the opinion of the doctor regarding the non-ability of .
the respondent to conceive the pregnancy, are not borne out of the pleadings.
He was given an opportunity to amend the pleadings, however, despite that these facts were not incorporated in the pleadings. The appellant has disowned the child. According to him, the entries made in Zonal Hospital, of Una were fabricated. However, in his cross-examination, he admitted that the relations between the parties remained cordial for about 6 months.
8. rt Sh. Lal Ji has appeared as PW-1. According to him, after the solemnization of marriage, the appellant came back from Bathinda and started cycle repair shop. The brother of the respondent was running a 'Dhaba' at Una. He used to intimidate the appellant. According to him, the respondent consumed some poisonous substance in order to implicate the appellant and his family members in a false case. In his cross-examination, he admitted that the appellant closed down his shop and his whereabouts were not known to anyone. He feigned ignorance about the date or month when the respondent consumed the poison. He further admitted that the threats were never advanced to the appellant in his presence.
9. Sh. Balwant Singh has appeared as PW-2. In his cross-
examination, he admitted that the fact that the incident regarding consumption of poisonous substance by the respondent was hearsay as he heard this from someone else.
10. Dr. Satinder Chauhan, has appeared as PW-3. He has admitted that respondent was admitted in Emergency Ward. According to him, the ::: Downloaded on - 15/04/2017 18:46:18 :::HCHP 4 respondent had consumed poison used to kill rats. In his cross-examination, he admitted that he had not preserved the gastric wash from the stomach.
11. Sh. Gurdev Singh, Superintendent from the Office of CMO, Una, .
has appeared as PW-4. He has proved Ext. PW-4/A and Ext. PW-4/B.
12. Smt. Shashi Bala, has appeared as RW-1. According to her, the compromise was effected 3-4 years back at the instance of the respondent.
Both the parties were heard. The compromise was arrived at between the of parties. The respondent told her that she was pregnant and her husband has not visited her for so many days. She was at the verge of starvation. She rt advised her to call for her parents. The mother of the respondent took the respondent with her. She feigned ignorance about the fact that respondent had consumed some poisonous substance.
13. The respondent has appeared as RW-2. According to her, a son was born out of the wed-lock on 2.2.2002. The appellant used to drink.
Whenever she used to object the appellant, he used to administer beatings to her. She accompanied her husband to Bathinda after her marriage. She denied the suggestion that the doctor opined that she could not conceive.
She denied the suggestion that on 23.6.2001, she attempted to commit suicide. The respondent has produced copy of birth certificate Ext. R-6. As per the certificate, the date of birth of child is 2.2.2002.
14. Mr. Naresh Thakur, learned Senior Advocate for the appellant, has argued that the respondent has treated his client with physical as well as mental cruelty. According to PW-3 Satinder Chauhan, the respondent was admitted in the emergency ward at Zonal Hospital, Una on 23.6.2001.
However, the fact of the matter is that the respondent has not initiated any ::: Downloaded on - 15/04/2017 18:46:18 :::HCHP 5 criminal proceedings against the appellant. After the alleged consumption of poison, the respondent has never lodged any complaint against the appellant.
The allegations made by the appellant about the cruelty are vague and .
sketchy. The stand taken by the appellant that the respondent used to force him to live at Una would not constitute cruelty. The appellant has not even examined his parents and relations to prove this fact.
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15. The appellant himself has opted for DNA test. The report of the CFSL, Chandigarh is Ext. RY. According to the contents of the report, the appellant was biological father of Master Samaksh Saini. The appellant has rt admitted that at the time of filing of the petition, the respondent was living with him at village Ishpur at the matrimonial home. The petition was filed on 22.8.2001 and the child was born on 2.2.2002, as per the birth certificate Ext. RX. The child was born during the continuance of valid marriage between the appellant and the respondent. The appellant has failed to maintain the respondent. The respondent has approached RW-1 Shashi Bala that the appellant was not looking after him and she was on the verge of starvation. In these circumstances, RW-1 Shashi Bala had advised the respondent to call her parents.
16. Their Lordships of the Hon'ble Supreme Court in the case of Shobha Rani v. Madhukar Reddi reported in AIR 1988 SC 121 have explained the term "cruelty" as under:
"4. Section 13(1)(i-a) uses the words "treated the petitioner with cruelty". The word "cruelty" has not been defined. Indeed it could not have been defined. It has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and ::: Downloaded on - 15/04/2017 18:46:18 :::HCHP 6 obligations. It is a course of conduct of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical the court will have no problem to determine it. It is a question of fact and degree. If it is mental the problem presents difficulty. First, .
the enquiry must begin as to the nature of the cruel treatment.
Second, the impact of such treatment in the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other. Ultimately, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. There may, however, be cases where the conduct complained of itself is bad enough and per se unlawful or of illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted.
5. It will be necessary to bear in mind that there has been rt marked change in the life around us. In matrimonial duties and responsibilities in particular, we find a sea change. They are of varying degrees from house to house or person to person. Therefore, when a spouse makes complaint about the treatment of cruelty by the partner in life or relations, the Court should not search for standard in life. A set of facts stigmatised as cruelty in one case may not be so in another case. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions. It may also depend upon their culture and human values to which they attach importance. We, the judges and lawyers, therefore, should not import our own notions of life. We may not go in parallel with them. There may be a generation gap between us and the parties. It would be better if we keep aside our customs and manners. It would be also better if we less depend upon precedents. Because as Lord Denning said in Sheldon v. Sheldon, [1966] 2 All E.R. 257 (259) "the categories of cruelty are not closed."
Each case may be different. We deal with the conduct of human beings who are not generally similar. Among the human beings there is no limit to the kind of conduct which may constitute cruelty. New type of cruelty may crop up in any case depending upon the human behaviour, capacity or incapability to tolerate the conduct complained of. Such is the wonderful/realm of cruelty."
17. Their Lordships of the Hon'ble Supreme Court in Samar Ghosh vs. Jaya Ghosh reported in (2007) 4 SCC 511, have enumerated some ::: Downloaded on - 15/04/2017 18:46:18 :::HCHP 7 instances of human behaviour, which may be important in dealing with the cases of mental cruelty, as under:
"98. On proper analysis and scrutiny of the judgments of this .
Court and other Courts, we have come to the definite conclusion that there cannot be any comprehensive definition of the concept of 'mental cruelty' within which all kinds of cases of mental cruelty can be covered. No court in our considered view should even attempt to give a comprehensive definition of mental cruelty.
99. Human mind is extremely complex and human behaviour is equally complicated. Similarly human ingenuity has no of bound, therefore, to assimilate the entire human behaviour in one definition is almost impossible. What is cruelty in one case may not amount to cruelty in other case. The concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, rt financial position, social status, customs, traditions, religious beliefs, human values and their value system.
100. Apart from this, the concept of mental cruelty cannot remain static; it is bound to change with the passage of time, impact of modern culture through print and electronic media and value system etc. etc. What may be mental cruelty now may not remain a mental cruelty after a passage of time or vice versa. There can never be any strait-jacket formula or fixed parameters for determining mental cruelty in matrimonial matters. The prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances while taking aforementioned factors in consideration.
101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of 'mental cruelty'. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive.
(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.
(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.
(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.::: Downloaded on - 15/04/2017 18:46:18 :::HCHP 8
(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.
(v) A sustained course of abusive and humiliating .
treatment calculated to torture, discommode or render miserable life of the spouse.
(vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.
(vii) Sustained reprehensible conduct, studied neglect, of indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.
(viii) The conduct must be much more than jealousy, rt selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty.
(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day to day life would not be adequate for grant of divorce on the ground of mental cruelty.
(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill-conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.
(xi) If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of his wife and similarly if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.
(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.
(xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.
(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the ::: Downloaded on - 15/04/2017 18:46:18 :::HCHP 9 matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In .
such like situations, it may lead to mental cruelty."
18. Their Lordships of the Hon'ble Supreme Court in the case of Manisha Tyagi vs. Deepak Kumar reported in 2010(1) Divorce & Matrimonial Cases 451, have explained the cruelty as under:
of "24. This is no longer the required standard. Now it would be sufficient to show that the conduct of one of the spouses is so abnormal and below the accepted norm that the other spouse could not reasonable be expected to put up with it.
rtThe conduct is no longer required to be so atrociously abominable which would cause a reasonable apprehension that would be harmful or injurious to continue the cohabitation with the other spouse. Therefore, to establish cruelty it is not necessary that physical violence should be used. However, continued ill-treatment cessation of marital intercourse, studied neglect, indifference of one spouse to the other may lead to an inference of cruelty. However, in this case even with aforesaid standard both the Trial Court and the Appellate Court had accepted that the conduct of the wife did not amount to cruelty of such a nature to enable the husband to obtain a decree of divorce."
19. Their Lordships of the Hon'ble Supreme Court in the case of Ravi Kumar vs. Julumidevi reported in (2010) 4 SCC 476, have explained cruelty as under:
"19. It may be true that there is no definition of cruelty under the said Act. Actually such a definition is not possible. In matrimonial relationship, cruelty would obviously mean absence of mutual respect and understanding between the spouses which embitters the relationship and often leads to various outbursts of behaviour which can be termed as cruelty. Sometime cruelty in a matrimonial relationship may take the form of violence, sometime it may take a different form. At times, it may be just an attitude or an approach. Silence in some situations may amount to cruelty.
20. Therefore, cruelty in matrimonial behaviour defies any definition and its categories can never be closed.::: Downloaded on - 15/04/2017 18:46:18 :::HCHP 10
Whether the husband is cruel to his wife or the wife is cruel to her husband has to be ascertained and judged by taking into account the entire facts and circumstances of the given case and not by any predetermined rigid formula. Cruelty in matrimonial case can be of infinite variety - it .
may be subtle or even brutal and may be by gestures and word. That possible explains why Lord Denning in Sheldon v. Sheldon held that categories of cruelty in matrimonial case are never closed.
21. This Court is reminded of what was said by Lord Reid in Gollins v. Gollins about judging cruelty in matrimonial cases. The pertinent observations are (AC p.660) ".. In matrimonial cases we are not concerned with of the reasonable man as we are in cases of negligence. We are dealing with this man and this woman and the fewer a priori assumptions we make about them the better. In cruelty cases one can hardly ever even rt start with a presumption that the parties are reasonable people, because it is hard to imagine any cruelty case ever arising if both the spouses think and behave as reasonable people."
22. " About the changing perception of cruelty in matrimonial cases, this Court observed in Shobha Rani v. Madhukar Reddi at AIR p. 123, para 5 of the report: (SCC p.108, para 5) "5. It will be necessary to bear in mind that there has been (a) marked change in the life around us. In matrimonial duties and responsibilities in particular, we find a sea change. They are of varying degrees from house to house or person to person. Therefore, when a spouse makes complaint about the treatment of cruelty by the partner in life or relations, the court should not search for standard in life. A set of facts stigmatized as cruelty in one case may not be so in another case. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions. It may also depend upon their culture and human values to which they attach importance. We, the Judges and lawyers, therefore, should not import our own notions of life. We may not go in parallel with them. There may be a generation gap between us and the parties."
20. Their Lordships of the Hon'ble Supreme Court in the case of Pankaj Mahajan vs. Dimple Alias Kajal reported in (2011) 12 SCC 1, have illustrated cruelty as under:
::: Downloaded on - 15/04/2017 18:46:18 :::HCHP 11"36. From the pleadings and evidence, the following instances of cruelty are specifically pleaded and stated. They are:
i. Giving repeated threats to commit suicide and even trying to commit suicide on one occasion by jumping from the terrace. ii. Pushing the appellant from the staircase resulting into fracture .
of his right forearm.
iii. Slapping the appellant and assaulting him. iv. Misbehaving with the colleagues and relatives of the appellant causing humiliation and embarrassment to him.
v. Not attending to household chores and not even making food for the appellant, leaving him to fend for himself. vi. Not taking care of the baby.
vii. Insulting the parents of the appellant and misbehaving with of them.
viii. Forcing the appellant to live separately from his parents. ix. Causing nuisance to the landlord's family of the appellant, causing the said landlord to force the appellant to vacate the premises.
rt x. Repeated fits of insanity, abnormal behaviour causing great mental tension to the appellant.
xi. Always quarreling with the appellant and abusing him.
xii. Always behaving in an abnormal manner and doing weird acts causing great mental cruelty to the appellant."
21. Their Lordships of the Hon'ble Supreme Court in the case of Vishwanath Agrawal vs. Sarla Vishwanath Agrawal reported in (2012) 7 SCC 288 have explained cruelty as under:
"22. The expression 'cruelty' has an inseparable nexus with human conduct or human behaviour. It is always dependent upon the social strata or the milieu to which the parties belong, their ways of life, relationship, temperaments and emotions that have been conditioned by their social status.
28. In Praveen Mehta v. Inderjit Mehta, AIR 2002 SC 2582 it has been held that mental cruelty is a state of mind and feeling with one of the spouses due to behaviour or behavioural pattern by the other. Mental cruelty cannot be established by direct evidence and it is necessarily a matter of inference to be drawn from the facts and circumstances of the case. A feeling of anguish, disappointment, and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The facts and circumstances are to be assessed emerging from the evidence on record and thereafter, a fair inference has to be drawn whether the petitioner in the divorce petition has been subjected to mental cruelty due to the conduct of the other."
::: Downloaded on - 15/04/2017 18:46:18 :::HCHP 1222. Their Lordships of the Hon'ble Supreme Court in Goutam Kundu Vs. State of West Bengal and another, AIR 1993 Supreme Court 2295 have .
held that it is a rebuttable presumption of law under Section 112 that a child born during the lawful wedlock is legitimate, and that access occurred between the parents. This presumption can only be displaced by a strong preponderance of evidence, and not by a mere balance of probabilities. Their of Lordships have laid down the following principles for the permissibility of blood test to prove paternity:
"22. It is a rebuttable presumption of law that a child born rt during the lawful wedlock is legitimate, and that access occurred between the parents. This presumption can only be displaced by a strong preponderance of evidence, and not by a mere balance of probabilities.
26. From the above discussion it emerges:-
(1) that courts in India cannot order blood test as a matter of course;
(2) wherever applications are made for such prayers in order to have roving inquiry, the prayer for blood test cannot be entertained.
(3) There must be a strong prima facie case in that the husband must establish non-access in order to dispel the presumption arising under section 112 of the Evidence Act. (4) The Court must carefully examine as to what would be the consequence of ordering the blood test; whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman.
(5) No one can be compelled to give sample of blood for analysis"
23. The learned Single Judge of Madras High Court in Eswaran Vs. Pichayee and others 1998 Cri. L.J. 3976 have held that the parties cannot be compelled for subjecting themselves for blood test in maintenance proceedings. Their Lordships have held as under:
"30. No doubt, it is true that on 11-6-1990 Crl. M.P.No. 167 of 1989 filed by the petitioner was allowed. In pursuance of the said order, it is to be noted that the petitioner and the respondents were sent for the blood test. But, due to want of chemicals, the ::: Downloaded on - 15/04/2017 18:46:18 :::HCHP 13 test was not conducted then. Subsequently, on receipt of a letter from the Forensic Science Department, again the petition was posted for enquiry. On 29-5-1991, on the date of the enquiry, as seen from the records, the petitioner was not present, when the matter was called in the forenoon. It was passed over and again .
in the afternoon the Magistrate called the matter. However, the petitioner was absent even in the afternoon. Therefore, the learned Judicial Magistrate had dismissed the application by giving reasons. The lower Court's order is as follows:-[ Vernacular matter omitted]
31. Admittedly, the above order dated 29-5-1991 had not been challenged. The examination of the witnesses commenced from 6-2-1996 onwards and ended on 23-4-1996. During this of period also the petitioner never took steps for blood group test. Therefore, it cannot be contended, in the light of the above fact situation, that the opportunity had been denied.
32. Moreover, as laid down by the Apex Court, the parties cannot be compelled for subjecting themselves for blood test in the rt proceedings under Section 125, Cr.P.C. It is held in Goutam Kundu v. State of West Bengal as follows :-
From the above discussion it emerges:-
(1) that Courts in India cannot order blood test as a matter of course;
(2) wherever applications are made for such prayers in order to have roving inquiry, the prayer for blood test cannot be entertained.
(3) There must be a strong prima facie case in that the husband must establish non-access in order to dispel the presumption arising under Section 112 of the Evidence Act.
(4) The Court must carefully examine as to what would be the consequence of ordering the blood test; whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman.(5) No one can be compelled to give sample of blood for analysis.
In view of what is stated above, the first ground urged by the learned counsel for the petitioner fails."
24. The learned Single Judge of Madhya Pradesh High Court in Devesh Pratap Singh Vs. Srimati Sunita Singh AIR 1999 Madhya Pradesh 174 has held that the rule of evidence contained in Section 112 raises a ::: Downloaded on - 15/04/2017 18:46:18 :::HCHP 14 mandatory presumption that a child born during wedlock, no matter when the child could be begotten, is the legitimate issue of the husband of the mother and no adverse inference can be drawn against the wife in refusing to .
submit herself to blood test. The learned Single Judge has held as under:
"8. The Petitioner/husband seeks annulment of marriage on the ground of pregnancy per alium i.e. concealed pregnancy. It is not the case of the husband that the wife was already pregnant at the time of marriage because that would be a ground for voiding the marriage by a decree of nullity under Section 12(1)(d) of the of Act. A decree of divorce under Section 13(1)(i) of the Act can be obtained only on the ground that other party to the marriage, after solemnization of the marriage, had voluntary sexual intercourse with any person other t ban his or her spouse. In the instant case, the main emphasis for seeking a decree of divorce rt by the husband is on the admission contained in the statement of wife in her cross-examination that after marriage when the husband visited her parents' place between 8-1-86 to 12-1-86 the wife was in menstrual period and could not have conceived. Relying on the above part of the statement of the wife, the argument sought to be built up is that the wife became pregnant due to illegitimate sexual connection with a person outside the wed-lock sometime after 12-1-86 when the menstrual period might have been over. The rule of evidence contained in Section 112 of the Evidence Act raises mandatory presumption that a child born during wedlock, no matter when the child could be begotten, is the legitimate issue of the husband of the mother. The presumption can be dislodged by proof of non-access during the time of conception. The husband has admitted a consummation of marriage after it took place on 29-11-85 and also admitted access to each other between 29-11-85 to 12-1-1986. The child born on 31-10-1986 could have been conceived as the husband and wife had access to each other between the above period. As held by the Supreme Court in Dukhtar Jahan v. Mohammad Farouq, AIR 1987 SC 1049, the sole ground that the child had been born in seven months 'time after the marriage leads to no conclusion that the child was conceived even before the marriage. Giving birth to a viable child after 28 weeks' duration of pregnancy is not biologically an improbable or impossible event.
9. The husband cannot derive much help from the admission made by the wife in her cross-examination that when the husband visited her while she was living in her parents' house between 8-1-1986 and 12-1-1986, she was in menstrual period. Merely because the wife states that she was in menstrual period at the time of visit of the husband, it cannot be conclusively held that she could not have conceived earlier to the above period as a ::: Downloaded on - 15/04/2017 18:46:18 :::HCHP 15 result of her access to the husband before the aforesaid period.
12. In view of the above medical opinion, the contention of the husband based on the alleged admission of the wife in her cross- examination about her menstrual period does not lead to a rebuttable presumption that the wife had conceived as a result of .
any illicit sexual intercourse with any person outside the wedlock. The presumption in Section 112 of the Evidence Act thus does not stand rebutted, in view of the admitted access between the husband and the wife during which she could have conceived and delivered a normal child.
14. It is no doubt true that in the matrimonial Court below the husband had filed an application seeking directions of the Court to the wife to submit herself and her child to blood test, but the of wife refused on the ground that there is no one in her family to take her for the test to New Delhi. On the basis of evidence discussed above, and the medical opinion, this Court does not find that any adverse inference can be drawn against the wife in refusing to submit herself to blood test."
rt
25. The learned Single Judge of Karnataka High Court in Smt. Ningamma and another Vs. Chikkaiah AIR 2000 Karnataka 50 has held that to compel a person to undergo or to submit himself or herself to medical examination of his or her blood test or the like without his consent or against his wish tantamounts to interference with his fundamental right of life or liberty. The learned Single Judge has held as under:
"21. Article 21 of the Constitution confers fundamental right of life and personal liberty. Life full of dignity and honour. In India chastity of the woman and paternity of the child have got their importance and pride places. No person in India will ever tolerate nor cherish or like to be called bastard nor a woman will tolerate to be called unchaste. Legitimacy of the paternity of a child or person and chastity of a woman are parts of the dignity and honour for each man and woman according to law. Article 21 confers right to life and provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. Right to life is not merely animal life. Right to life means life full of dignity and honour and right to live with honour and dignity. Right to personal liberty is also very important. To compel a person to undergo or to submit himself or herself to medical examination of his or her blood test or the like without his consent or against his wish tantamounts to interference with his fundamental right of life or liberty particularly even when there is no provision either in the Code of ::: Downloaded on - 15/04/2017 18:46:18 :::HCHP 16 Civil Procedure or theEvidence Act or any other law which may be said to authorise the Court to compel a person to undergo such a medical test as blood group test or the like against his wish, and to create doubt about the chastity of a woman or create doubt about the man's paternity. It will amount to nothing but .
interference with the right of personal liberty. Here as mentioned earlier, Section 112read with Section 4, Evidence Act really has the effect of completely closing and debaring the party from leading any evidence with respect to the fact which the law says that to be the conclusive of proof of legitimacy and paternity of child covered by Section 112 of Evidence Act, except by showing that during the relevant period of time as referred to in Section 112 the parties to the marriage had no access to each other, the of allowing of medical test to test the blood group to determine paternity would run counter to the mandate of Article 21 of the Constitution as well and inherent powers are not meant to be exercised to interfere with the fundamental right of life and liberty of the person nor to nullify or stultify any statutory provision.
rt
22. In the case of Revamma v Shanthappa, this Court had an opportunity to consider this question of medical examination as to whether the Court can compel a person to undergo medical examination. His Lordship Hon'ble H.B. Datar, J., as he then was had been pleased to observe at paras 4 and 5 are as under:
"4. In a case where a party alleges that a person is impotent or suffering from other such incurable disease, it is for the person making such an allegation to prove the same. A party cannot be compelled to undergo medical examination. As stated by the High Court of Gujarat, "There is no provision under the Hindu Marriage Act or the Rules framed thereunder, or in the Code of Civil Procedure, or by the Indian Evidence Act, or any other law which would show any power in the Court to compel any party to undergo medical examination".
A medical examination for ascertaining whether a person is insane or impotent are all cases in which unless by the law of the land a person can be compelled to undergo medical examination, an order directing a person to medical examination would be clearly illegal and without jurisdiction. In P. Sreeramamurthy v P. Lakshmikantham, when an order was passed directing medical examination, it was held that there must be some statutory provision under which it would be open to the Court to compel medical examination of a party, thus restricting the enjoyment of personal liberty of the person. It was also held that in a case like this, it was not right to rely upon the general or inherent powers of the Court under Section 151 of the Civil Procedure Code. It may be rejected and that even medical examination is specifically provided as under the terms of the Indian Lunacy Act. In the ::: Downloaded on - 15/04/2017 18:46:18 :::HCHP 17 absence of any provision, it is not competent to any party to compel the other party to undergo medical examination.
5. In the case of Ranganathan Chettiar, supra, it has been held that it is not open to the Court under Section 151 of the Code of .
Civil Procedure, to order a medical examination of a party against the consent of such party. To pass such an order is tantamout to treating a human being as a material object, which no Court should do under its inherent power. It is, thus, clear that it is not open to the Court to invoke Section 151 of the Code of Civil Procedure to order a medical examination against his consent. In that view the order directing the medical examination of the petitioner is one which has been passed by the learned of Judge in excess of the jurisdiction and the same is liable to be set aside".
23. Thus considered in my view the Court below committed an error of jurisdiction and acted in excess of jurisdiction in rt directing the revision petitioners to subject themselves to medical examination for the blood test.
24. I am further to observe that the Court below has observed that if the parties or any of them fails to appear before the District Surgeon for medical test on 4-12-1996, adverse inference shall be or may be drawn as per law. Here again the Court below acted illegally in making this observation, because Section 4 provides and mandates that when one fact is said to be conclusively proved on establishment of another relevant fact, then it completely shuts down and rules out every sort of evidence to disprove that fact. Adverse presumption under Section 114 may furnish a circumstantial evidence to dislodge the conclusive proof, then that will be running counter to the provisions of Section 112 read with Section 4 of the Evidence Act. The Court below observed illegally that failure or refusal to surrender to medical test will result in raising adverse presumption against the party when in view of Section 112 read with Section 4 of the Evidence Act, every sort of evidence, other than referred in Section 112 is barred and closed including presumptive circumstantial evidence under Section 114 and then the presumption cannot be raised under Section 114 from the failure to surrender. What evidence can be lead so that conclusive presumption or doctrine of conclusive proof under Section 112 may not arise is of the fact that the parties to marriage had no access to each other or occasion to have access during the relevant period i.e., period when the child or person concerned whose paternity or legitimacy in question was conceived as per the latter part of Section 112 of the Evidence Act. Further threat to raise such adverse presumption in such case will amount to interference with fundamental right ::: Downloaded on - 15/04/2017 18:46:18 :::HCHP 18 under Article 21 of personal liberty by implicitly forcing an unwilling person to undergo the medical test i.e., blood group test against his wish and against his or her free will and liberty."
.
26. Their Lordships of the Hon'ble Supreme Court in Smt. Kamti Devi and another Vs. Posshi Ram AIR 2001 Supreme Court 2226 have held that Section 112 which raises a conclusive presumption about the paternity of the child born during the subsistence of a valid marriage, itself provides an of outlet to the party who wants to escape from the rigour of that conclusiveness. The result of a genuine DNA test is said to be scientifically accurate. But even that is not enough to escape from the conclusiveness of rt Section 112 of the Act, e.g. if a husband and wife were living together during the time of conception but the DNA test revealed that the child was not born to the husband, the conclusiveness in law would remain unrebuttable. Their Lordships have held as under:
"4. The marriage between appellant Kamti Devi and respondent Poshi Ram was solemnised in the year 1975. For almost fifteen years thereafter Kamti Devi remained childless and on 4-9-1989 she gave birth to a male child (his name is Roshan Lal). The long period in between was marked by internecine legal battles in which the spouses engaged as against each other. Soon after the birth of the child it was sought to be recorded in the Register under the Births, Deaths and Marriages Registration Act. Then the husband filed a civil suit for a decree declaring that he is not the father of the child, as he had no access to the appellant-Kamti Devi during the period when the child would have been begotten.
11. We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancements with Dioxy Nucleic Acid (DNA) as well as Ribonucleic Acid (RNA) tests were not even in contemplation of the legislature. The result of a genuine DNA test is said to be scientifically accurate. But even that is not enough to escape from the conclusiveness of Section 112 of the Act, e.g. if a husband and wife were living together during the time of conception but the DNA test revealed that the child was not born to the husband, the conclusiveness in law would remain unrebuttable. This may look hard from the point of view of the husband who would be compelled to bear the fatherhood of a child ::: Downloaded on - 15/04/2017 18:46:18 :::HCHP 19 of which he may be innocent. But even in such a case the law leans in favour of the innocent child from being bastardized if his mother and her spouse were living together during the time of conception. Hence the question regarding the degree of proof of non-access for rebutting the conclusiveness must be answered in .
the light of what is meant by access or non-access as delineated above."
27. The learned Single Judge of Delhi High Court in Mrs. Teeku Dutta Vs. State and another AIR 2004 Delhi 205 has held that no party to legal proceedings can be subjected to any such test against his or her will. It of infringes upon his or her right to privacy. The learned Single Judge has held as under"
"6. Additionally, it may be recalled that an inbuilt constitutional rt safeguard exists in the shape ofArticle 20(3) of the Constitution against a person accused of any offense being compelled to be a witness against himself. Right of privacy as enshrined in Article 21 of the Constitution also comes into play as and when any party to the proceedings is called upon to undergo any scientific test for the purpose of collecting evidence. It is a fairly settled position that no party to a legal proceedings can be subjected to any scientific test against his or her will as it has the effect of infringing upon his or her right to privacy."
28. The learned Single Judge of Allahabad High Court in Heera Singh Vs. State of U.P. and others, 2005 Cri. L.J. 3222 has held that merely because of advancement in science and technology, provisions of Evidence Act, enacted more than 100 years back, does not lose significance. Before DNA test is conducted, consent of person concerned is necessary. The learned Single Judge has referred to maxim "Pater est quem nuptiae demonstrant"
(father is one whom marriage indicates). The learned Single Judge has held as under:
"10. In view of the settled legal position, respondent No. 2 being guardian of respondent No. 3 having refused P.M.A. test, cannot be compelled for the same at the instance of the petitioner. The courts in the capacity of ad litum guardian of minor can also not ::: Downloaded on - 15/04/2017 18:46:18 :::HCHP 20 direct such a test in the absence of direct and positive evidence of non-access as required by Section 112 of the Evidence Act The courts exercise protective jurisdiction on behalf of an infant and it would be unjust and unfair to direct to such a test to assist a litigant to establish and prove his or her claim at the cost of an .
infant. The infant cannot be allowed to suffer because of his incapacity. The Apex Court in the case of Smt. Dukhtar Jahan v. Mohammed Farooq, reported in AIR 1987 SC 1049 has observed as under:
"12............... This rule of law based on the dictates of justice has always made the courts incline towards upholding the legitimacy of a child unless the facts are so compulsive and clinching as to necessarily warrant a finding that the child could not at all have of been begotten to the father and as such a legitimation of the child would result in rank injustice, to the father. Courts have always desisted from lightly or hastily rendering a verdict and that too, on the basis of slender materials, which will have the effect of branding a child as a bastard and its mother an rt unchaste woman. "
29. The learned Single Judge of Bombay High Court in Sunil Eknath Trambake Vs. Leelavati Sunil Trambake AIR 2006 Bombay 140 has held that DNA test to prove paternity of child can be ordered only in exceptional and deserving cases and if it is in the interest of child, it cannot be directed as a matter of routine. The learned Single Judge has further held that order directing DNA test of child to prove his paternity is not necessary and the factum of paternity can be proved by other evidence also. The learned Single Judge has held as under:
"6. Merely because either of the parties have disputed a factum of paternity does not mean that the Court should direct DNA test or such other test to resolve the controversy. The parties should be directed to lead evidence to prove or disprove the factum of paternity and only if the Court finds it impossible to draw an inference or adverse inference on the basis of such evidence on record or the controversy in issue cannot be resolved without DNA test, it may direct DNA test and not otherwise. In other words, only in exceptional and deserving cases, where such a test becomes indispensable to resolve the controversy the Court can direct such test. DNA test, in any case, cannot be directed as a matter of routine. The Courts should record reasons as to how and why such test in the case is necessary to resolve the controversy and is ::: Downloaded on - 15/04/2017 18:46:18 :::HCHP 21 indispensable. That is necessary since a result of such test, in matrimonial and succession cases, being negative will have an effect of branding a child as a bastard and the mother as an unchaste women as noted inGoutam Kundu v. State of West Bengal and Anr. (1993) 3 SCC 418. That may also adversely affect .
the child psychologically. The Courts, however, should not hesitate to direct DNA test if it is in the best interest of a child.
7. In the present case, the respondent-wife is seeking DNA test not in the interest of the child but in her own interest to establish that the petitioner-husband lives in adultery and is, therefore, not entitled for divorce. The learned Judge has not recorded the reasons as to why DNA is indispensable and that the other evidence produce on record is not sufficient to draw an inference or of adverse inference in favour or against either of the parties. In the present case the documentary evidence in the form of birth certificate and school record is already produced on record which, according to the respondent, reflects that the petitioner and Meena are parents of child - Rupesh. The learned Judge has not recorded rt its opinion in respect of that evidence. I do not wish to express any opinion on merits of the case. However, in my opinion, in the absence of sufficient reasons for holding the DNA test necessary, to resolve the controversy involved in the matter the impugned order is liable to be set aside."
30. In the instant case, the appellant has failed to prove that the respondent has treated the appellant with cruelty.
31. Accordingly, there is no merit in this appeal, the same is dismissed. No costs.
August 18, 2015 ( Rajiv Sharma ),
)
(karan Judge.
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