Orissa High Court
Chinmayee Mohanty @ Kamila vs Krushna Narayan Kamila ........... ... on 28 September, 2011
Author: L.Mohapatra
Bench: L.Mohapatra
HIGH COURT OF ORISSA: CUTTACK
W.P.(C) No. 12470 of 2011
In the matter of application under Articles 226 & 227 of the
Constitution of India.
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Chinmayee Mohanty @ Kamila ............ Petitioner
-Versus-
Krushna Narayan Kamila ........... Opp. Party
For Petitioner : Mr. A.Panda & Associates
For Opp. party : Mr.S.S.Das & Associates
P R E S E N T:
THE HON'BLE MR. JUSTICE L.MOHAPATRA
AND
THE HON'BLE MR. JUSTICE B.K.MISRA
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Date of Judgment: 28.09.2011
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B.K.MISRA, J The petitioner who was the opposite party in Civil
Proceeding No. 166 of 2004 pending in the Court of learned Judge,
Family Court, Cuttack challenges the propriety of the order passed by
the said Judge, Family Court, Cuttack on 15.2.2011 directing the
petitioner as well as the opposite party so also their child to undergo
D.N.A. test with regard to the determination of the paternity of the
child in question.
2. Before going to examine the propriety or impropriety of the
impugned order of the learned Judge, Family Court, Cuttack, it will be
worthwhile to mention the cases of the parties in brief. According to the
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husband-petitioner, he married the opposite party-wife on 24.2.2003.
But according to the petitioner, there was no relationship between them
and the opposite party behaved differently in maintaining conjugal
relationship and ultimately the opposite party-wife was taken by her
father to his house on the pretext of some custom. The further case of
the petitioner is that he came to know that his wife has given birth to a
male child in S.C.B. Medical College Hospital, Cuttack on 9th November,
2003. The apprehension of the petitioner is that the opposite party was
impregnated by some other person before marriage and that was the
reason as to why she deprived him of his conjugal rights. Under such
circumstances the petitioner filed the proceeding for annulling his
marriage with the opposite party and to grant a decree of divorce with a
further prayer to declare that the child born to the opposite party (wife)
is not his child.
3. The opposite party-wife contested the proceeding by way of
filing the written statement wherein she denied the allegations of the
petitioner and interalia pleaded that the child born to her is out of her
wedlock with the petitioner and it is her specific case that she was
physically and mentally tortured by the petitioner and his mother on
demand of dowry and after the birth of the child the petitioner did not
take care of her as well as the child nor did pay anything towards their
maintenance for which she is residing with her parents especially when
the petitioner refused to take them back to his house.
4. In the proceeding before the Family Court, both parties
have led evidence. During the pendency of the said proceeding a petition
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was filed by the petitioner-husband for a direction to the parties
including the child to undergo the prescribed D.N.A. test to ascertain
the paternity of the child which was born to opposite party on
9.11.2003. Such petition filed by the husband was stoutly resisted by
the wife.
5. The Judge, Family Court, Cuttack upon hearing the
learned counsel for the petitioner-husband as well as the opposite party-
wife passed the impugned order directing the parties as well as the child
to go for D.N.A. test which would help the Court in arriving at the just
decision of the case.
6. Learned counsel appearing for the petitioner challenged
the impugned order contending that when the marriage between the
parties is an admitted fact and after marriage the spouses lived under
one room and when sufficient materials are there before the Court that
Opposite Party has access to her, the Court should not have ordered a
roving enquiry in directing the parties and the child to go for the D.N.A.
test. It was also contended that there has been abuse of the
discretionary power so exercised by the learned Judge, Family Court,
Cuttack. It was also contended that right to personal liberty is very
important and compelling a person to undergo for medical examination
of his or her blood test or the like without his or her consent and wish
tantamount to interference with his or her fundamental right of life or
liberty when there is no provision either in the Family Court's Act, the
Code of Civil Procedure or the Evidence Act. It was also contended that
the D.N.A. test is not to be directed as a matter of routine since Court's
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of Law always are inclined towards holding 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 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 rendering a verdict lightly
or hastily which will have the effect of branding a child as a bastard and
its mother as unchaste woman. Law always presumes both that a
marriage ceremony is valid and that every person is legitimate.
7. Learned counsel appearing on behalf of the husband while
admitting the marriage of the opposite party with the petitioner
submitted that from the medical history of the petitioner it can not be
said that the child born to the petitioner on 9.11.2003 is a legitimate
child as the medical history of the petitioner shows that she had
conceived prior to her marriage as her period was missing as per the
Bed Head ticket since 18.2.2003 i.e. seven days prior to the marriage
and when the child was born to the petitioner on 9.11.2003 and was a
"term baby", the same shows that the child was born when the gestation
had attained 37 complete weeks but less than 42 weeks in other words
between 259 and 294 days since the last menstrual period. It was also
contended by the learned counsel for the opposite party that when a
child is born before completion of 37 weeks (259 days) the child is
considered preterm. It was also contended that at the time of admission
of the petitioner to S.C.B. Medical College & Hospital, Cuttack for
delivery it was reported to the doctor that the petitioner had married for
the last one year. Thus, according to learned counsel for the opposite
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party-husband pregnancy begins from the first date of the last
menstrual period (L.M.P.) and starting from that date the expected date
of delivery is calculated and therefore when the bed head ticket shows
that the period of the petitioner was missing since 18.2.2003 and her
expected date of delivery was 25.11.2003 the child born to the petitioner
is not born through him as he had no access to his wife namely, the
petitioner during her stay in his house. In other words, the opposite
party disputing the paternity of the child prayed for the DNA test. It was
very vociferously contended by the learned counsel for the Opposite
Party that the only way to disprove the paternity of the child is by blood
group test. Having regard to the development of the medical
jurisprudence to deny such request of him would be unreasonable.
8. In support of their respective contentions, the learned
counsel for the parties placed reliance in several decisions of the Apex
Court, namely AIR 1965 S.C. 364, Mahendra Manilal Nanavati -v-
Sushila Mahendra Nanavati, AIR 1993 S.C. 2295, Goutam Kundu -v-
State of West Bengal & another, AIR 2001 (S.C.) 2226, Smt. Kamti
Devi & another -v- Poshi Ram, (2003) 4 SCC 493, Sharada -v-
Dharampal, Vol.100 (2005) CLT 73, (S.C.) Banarsi Dass -v- Mrs.
Teeku Dutta & another and 2010 (II) OLR (S.C.) 575 Bhabani Prasad
Jena -v- Convenor Secretary, Orissa State Commission for Women
& another.
9. In the instant case, we are called upon to decide as to
whether the impugned order of the learned Judge, Family Court,
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Cuttack dated 15.02.2011 in C.P.No.166 of 2004 could be sustainable
in the eye of law in the given facts and circumstances of this case.
10. We may point out at the outset that challenging the order
of the Judge, Family Court, Cuttack regarding payment of monthly
maintenance to the wife and child the present Opposite Party had
preferred MAT Appeal No. 34 of 2008 before this Court. At that time the
learned counsel for the present Opposite Party raised the dispute about
the paternity of the child and prayed for a direction for D.N.A. test to
find out as to whether he (Opposite Party) is the father of the child or
not. But the said suggestion was rejected by the Court while dismissing
the appeal.
11. Since in this case the parties have led evidence and the
matter is sub-judice before the learned Judge, Family Court, Cutttack,
we refrain ourselves from expressing any opinion as to the pregnancy of
the petitioner as well as the period of gestation as any finding or
expressing opinion on that would definitely weigh in the minds of the
trial Judge and may pre-judge the issue in question. Therefore, without
delving into the technicalities of pregnancy, period of gestation and
when fertilization occurs, which have been advanced in course of
argument by the learned counsel for the opposite party, we would be
confining ourselves with regard to the DNA test which has been ordered
by the learned Judge, Family Court, Cuttack.
12. In matters of this kind and when dispute arises with
regard to parentage, resort is being made to Section 112 of the Indian
Evidence Act. There is a presumption and very strong one, though at the
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same time a rebuttal one. Section 112 of the Evidence Act is based on
the well-known maxim "pater is est quem nuptiae demonstrant" (he is
the father whom the marriage indicates.) The presumption of legitimacy
is this, that a child born of a married woman is deemed to be legitimate.
It throws on the person who is interested in making out the illegitimacy,
the whole burden of proving it. The law presumes both that a marriage
ceremony is valid, and that every person is legitimate. Marriage or
filiation (parentage) may be presumed. The law is general presuming
against vice and immorality.
13. It is to be mentioned here that Section 112 of the Evidence
Act was enacted at a time when the modern scientific advancements
with deoxyribonucleic 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
Evidence 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 irrebuttable.
This may look hard from the point of view of the husband who would be
compelled to bear the fatherhood of a child 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
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answered in the light of what is meant by access or non-access. (Kamti
Devi Vrs. Poshi Ram, 4 (2001) 5 SCC 311: 2001 SCC (Cri) 892).
14. In Bhabani Prasad Jena's case (supra), the Apex Court by
analyzing the position of law in the case of Sharada and Banarasi
(supra) have concluded as follows:-
"(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."
It has also been held that:-
"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. In our
view, when there is apparent conflict between
the right to privacy of a person not to submit
himself forcibly to medical examination and duty
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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
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."
15. In the instant case, the opposite party-husband had
earlier prayed for DNA test on 18.8.2007 and the Court rejected such
prayer of the present opposite party-husband on 19.5.2010 but again
the husband renewed his prayer for DNA test of the parties including
the child which was disposed of by the impugned order. On going
through the impugned order, it has come to our notice that the learned
court below was swayed away with the notion that the oral evidence and
documentary evidence and medical Texts which were produced by the
petitioner-husband and holding that the opposite party-wife might have
conceived prior to her marriage ordered for a DNA test to arrive at a just
decision of the case. It would be appropriate to quote the reasoning of
the court below hereunder:-
"xx xx xx Learned counsel of O.P. argued that if
she was pregnant before her marriage
petitioner's female relatives could notice it after
her marriage seeing her swelled abdomen and
since no such physical development was noticed
in her, a conclusion is not available that she was
impregnated by somebody else before her
marriage. He also argued that petitioner did not
suggest to O.P. during her cross-examination
that as she was already pregnant before her
marriage her father gave her in marriage hastily.
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He also argued that a hasty marriage would not
necessarily always denote pregnancy prior to
marriage. These contentions of learned counsel
of O.P. would not succeed. Merely because
petitioner's female family members found no
feature of pregnancy in O.P. soon after the
marriage, a conclusion cannot be reached that
whatever petitioner is saying now about the
pregnancy of O.P. has to be rejected. Petitioner
by various items of materials i.e. oral evidence,
documentary evidence and medical texts have
filed to show that O.P. might have been pregnant
prior to her marriage. Under these
circumstances D.N.A. test of all the parties
including the child would help the court in
arriving at the just decision of the case."
16. Thus on analyzing the impugned order, we have no
hesitation to hold that the DNA test should not have been directed by
way of having a roving enquiry. Before ordering for DNA test the Court
should have arrived at a finding that the applicant had established a
strong prima facie case and the Court must have sufficient material
before it to enable it to exercise its discretion. Abuse of the discretionary
power at the hands of a Court cannot be expected when parties have led
evidence before the Court. The Court has to examine the materials
before it regarding the degree of proof of non-access for rebutting
conclusiveness in the light of the judgment of the Apex Court in Kamti
Devi's Case (supra). When parties have led evidence before the Court, it
would have been prudent on the part of the learned Judge, Family Court
not to direct the parties and the child to go for the D.N.A. test with
regard to determining the question of paternity raised by the Opposite
Party and the pros and con of such D.N.A. test should have been
considered.
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17. The contention of the learned counsel for the opposite
party-husband that the petitioner (wife) when had earlier prayed for time
for collection of blood sample she cannot thereafter have a volte-face and
question the propriety of the impugned order, appears fallacious and not
tenable.
18. The above being the position, the direction for DNA test as
has been given by the learned Judge, Family Court, Cuttack is
unsustainable in the eye of law.
19. In the ultimate analysis, the impugned order is set aside
and the writ petition stands allowed.
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B.K.Misra, J.
L.Mohapatra, J.I agree.
........................... L.Mohapatra, J.
Orissa High Court, Cuttack The 28th September, 2011/RNS 12 13