Gujarat High Court
Rameshbhai Pochabhai Marand vs Satiben D/O Karshanbhai Chavda W/O. ... on 24 October, 2019
Equivalent citations: AIR 2020 (NOC) 151 (GUJ), AIRONLINE 2019 GUJ 450
Author: A. P. Thaker
Bench: A. P. Thaker
C/SCA/5517/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5517 of 2019
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RAMESHBHAI POCHABHAI MARAND
Versus
SATIBEN D/O KARSHANBHAI CHAVDA W/O. RAMESH POCHABHAI
MARAND
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Appearance:
MR MEHUL M MEHTA(3416) for the Petitioner(s) No. 1
MALAV M MULANI(8844) for the Respondent(s) No. 1
MANSI M MULANI(9575) for the Respondent(s) No. 1
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CORAM: HONOURABLE DR.JUSTICE A. P. THAKER
Date : 24/10/2019
ORAL ORDER
1. The petitioner has filed present petition under Article 226 of the Constitution of India read with Section 13 of the Hindu Marriage Act, 1955 with a prayer to quash and set side order dated 11.12.2018 passed below Exh.14 in Hindu Marriage Petition No.56 of 2017 by learned Principal Senior Civil Judge, Gandhidham-Kutch.
2. The petitioner-original plaintiff is a labourer and marriage of the petitioner is solemnized about 6 years before the filing of application for dissolution of marriage. The petitioner has filed application for dissolution of marriage on the ground of adultery of his wife. The petitioner filed application Exh.14 for conducting DNA test to prove the paternity of the child on the ground that there was no access to his wife after solemnization of marriage. It is stated that one child was born in the year 2010 and another in 2013. It is stated that learned Family Page 1 of 11 Downloaded on : Fri Oct 25 23:16:13 IST 2019 C/SCA/5517/2019 ORDER Court Judge has not considered any grounds averred in the application while deciding the application for DNA test and passed the impugned order rejecting Exh.14 application against which present petition is preferred.
3. Learned counsel, Mr.Mehul Mehta, for the petitioner has submitted that Hindu Marriage Petition No.56 of 2017 was filed for dissolution of marriage between the appellant and the respondent, and in such petition, the appellant has preferred an application for DNA test of the children and the wife, which application has been rejected by the trial Court vide order dated 11.12.2018. He has contended that the trial Court has committed serious error of facts and law in rejecting the application. He has also contended that when there is an allegation of non-cohabitation of the appellant with the respondent, the children born are a result of illicit relationship of the wife with another person. By relying upon the decision in the case of Dipanwita Roy v. Ronobroto Roy AIR 2015 SC 418, he has submitted that identical facts are there and, therefore, in view of the said decision this Court should also direct the respondent to undergo DNA test. It is contended that earlier wife has shown readiness for DNA test but now she is declining the same. He has also relied upon the following decisions.
1. Narayan Dutt Tiwari v. Rohit Shekhar and Another (2012) 12 SCC 554.
2. Dipanwita Roy v. Ronobroto Roy AIR 2015 SC
418. Page 2 of 11 Downloaded on : Fri Oct 25 23:16:13 IST 2019 C/SCA/5517/2019 ORDER
3. Goutam Kundu v. State of West Bengal 1993 (2) GLH 996.
4. Per contra, Mr.Malav Mulani, for the respondent has submitted that first child has born in the year 2010 and another child has born in 2013. According to him, after four years from the birth of last child, present suit came to be filed. According to him, there was cohabitation between husband and wife. He has also contended that there is no strong prima facie case in favour of the petitioner in undergoing DNA test and the decision sought to be relied by the appellant are rather helpful to the respondent. He has also contended that if wife did not agree with DNA test then adverse inference could be drawn and there is no need for such test. He has also contended that there are only bald allegations regarding infidelity on the part of the wife. He has also contended that now the age of the children is seven and nine years respectively, and husband and wife are now not living together. He has prayed to dismiss present petition.
5. Before dealing with the facts of the case, it would be appropriate to refer to various decisions and the observations made therein with a view to appreciate the controversy involved in the present case. The Apex Court in the case of Goutam Kundu v. West Bengal [(1993) 3 SCC 418] observed as under:-
"18. Blood grouping test is a useful test to determine the question of disputed paternity. It can be relied upon by courts as a circumstantial evidence which ultimately excludes a certain individual as a father of the child. However, it requires to be carefully noted no person can Page 3 of 11 Downloaded on : Fri Oct 25 23:16:13 IST 2019 C/SCA/5517/2019 ORDER be compelled to give sample of blood for analysis against her will and no adverse inference can be drawn against her for this refusal.
21. The above is the dicta laid down by the various High Courts. In matters of this kind the court must have regard to Section 112 of the Evidence Act. This section is based on the well known maxim pater est quem nuptioe 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 affiliation (parentage) may be presumed, the law in general presuming against vice and immorality.
22. It is a rebuttable presumption of law 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.
.............
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."
5.1 In the case of Bhabani Prasad Jena v. Convenor Secretary, Orissa State Commission for Women and Page 4 of 11 Downloaded on : Fri Oct 25 23:16:13 IST 2019 C/SCA/5517/2019 ORDER Another [(2010) 8 SCC 633] the Apex Court has observed as under:-
"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 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 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."
5.2 In the case of Banarasi Dass v. Teeku Dutta (Mrs) and Another [(2005) 4 SCC 449], the Apex Court observed as under:-
"14. ...... The trial court erroneously held that the documents produced by the respondents were not sufficient or relevant for the purpose of adjudication and DNA test was conclusive. This is not a correct view. It is Page 5 of 11 Downloaded on : Fri Oct 25 23:16:13 IST 2019 C/SCA/5517/2019 ORDER for the parties to place evidence in support of their respective claims and establish their stands. DNA test is not to be directed as a matter of routine and only in deserving cases such a direction can be given, as was noted in Goutam Kundu's case (supra). Present case does not fall to that category. High Court's judgment does not suffer from any infirmity. We, therefore, uphold it. It is made clear that we have not expressed any opinion on the merits of the case relating to succession application."
5.3 In the case of Parshottamdas Vishadas Raheja and Another v. Shrichand Vishandas Raheja (2011) 6 SCC 73 has observed as under:-
"29. The test to be applied to assess the correctness of the order of the learned Single Judge would be whether the order is so arbitrary, capricious or perverse that it should be interfered with at an interlocutory stage in an intra-court appeal."
5.4 In the case of Mohd.Mehtabkhan and Others v. Khushnuma Ibrahimkhan and Others [(2013) 9 SCC 221, the Apex Court has observed that grant of mandatory interim relief requires the highest degree of satisfaction of the Court; much higher than a case involving grant of prohibitory injunction. It is, indeed, a rare power, the governing principles whereof would hardly require a reiteration inasmuch as the same which had been evolved by this Court in Dorab Cawasji Warden v. Coomi Sorab Warden (1990) 2 SCC 117. In the said case in paragraphs 16 and 17, it is observed as under:-
"Paras 16 and 17 of the judgment in Dorab Cawasji Warden (supra), extracted below, may be usefully remembered in this regard:
"16. The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status Page 6 of 11 Downloaded on : Fri Oct 25 23:16:13 IST 2019 C/SCA/5517/2019 ORDER quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guidelines. Generally stated these guidelines are:
(1) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction. (2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money.
(3) The balance of convenience is in favour of the one seeking such relief.
17. Being essentially an equitable relief the grant or refusal of an interlocutory mandatory injunction shall ultimately rest in the sound judicial discretion of the court to be exercised in the light of the facts and circumstances in each case. Though the above guidelines are neither exhaustive nor complete or absolute rules, and there may be exceptional circumstances needing action, applying them as prerequisite for the grant or refusal of such injunctions would be a sound exercise of a judicial discretion."
6. In the case of Narayan Dutt Tiwari v. Rohit Shekhar and Another reported in (2012) 12 SCC 554, while upholding the decision of the Court below, the Apex Court has directed the petitioner therein to undergo DNA test. That the only disadvantage to the child which is put forward as an argument against the use of blood test, not for therapeutic purposes but to ascertain paternity, is that the child is exposed to risk that he may lose the protection of the presumption of Page 7 of 11 Downloaded on : Fri Oct 25 23:16:13 IST 2019 C/SCA/5517/2019 ORDER legitimacy. It is further observed that interest of justice in the abstract are best served by ascertainment of the truth and there must be few cases, where the interests of children can be shown to be best served by the suppression of truth. Scientific evidence of blood groups has been available since the early part of this century and the progress of serology has been so rapid that, in many cases, certainty or near certainty can be reached in the ascertainment of paternity. It is also observed that paternity of any child is to be established by science and not by legal presumption or inference or by a long and acrimonious trial. It was further observed that injunction directing DNA testing falls in the category of an order in aid of disposal of the suit and deciding the rights of the parties to the suit i.e. the right asserted by the appellant to have such DNA testing done and the right asserted by respondent no.1 to not submit thereto. Once such right has been adjudicated by the suit court and the appeal there against had been dismissed and the application for stay having been rejected by the Apex Court, it was not open to suit Court to entertain the said question. It was further observed that drawing of adverse inference from refusal to comply with the direction for medical examination cannot be a substitute to enforceability of a direction for DNA testing. Legal fiction under Section 114 of the Evidence Act as adverse inference is not a reality, which the said provision requires. The Court has to accept the reality. The Court is not bound to or oblige to draw such adverse inference. A presumption is not in itself evidence but only makes a prima facie case for party in whose favour it exists. The presumption cannot displace adequate evidence. It is the rule of law in evidence that best available evidence should be brought before the Court to prove a fact for the points in issue Page 8 of 11 Downloaded on : Fri Oct 25 23:16:13 IST 2019 C/SCA/5517/2019 ORDER and the Court ought to play an active role in the proceedings in finding the truth and administering the justice. That the truth is a guiding star and the quest in the judicial process and the voyage of trial. The trend world over of full disclosure by the parties and the deployment of powers to ensure that the scope of factual controversy is minimized was noticed. It was further observed that adverse inference from non-compliance cannot be a substitute to the enforceability of direction for DNA testing.
6.1 In the case of Dipanwita Roy v. Ronobroto Roy [AIR 2015 SC 418], the Apex Court has observed that it was permissible for a Court to direct holding of DNA examination, if it was imminently needed after balancing the interest of the parties. It was also observed that 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. It is also observed therein that DNA testing is the most legitimate and scientifically proved means.
7. On perusal of the material placed on record, it transpires that it is the allegation of the husband that there was no physical relation with the wife and that the wife has given birth to children and the children are not born out of the wedlock of the petitioner and the respondent, therefore, prayer is made for DNA test of the children. Admittedly, to find out the paternity, DNA test is a scientific test and when the scientific test is available, the issue can be decided by such scientific evidence. DNA test cannot be granted as a matter of course but in a given case, DNA test can be directed to be carried out.
Page 9 of 11 Downloaded on : Fri Oct 25 23:16:13 IST 2019 C/SCA/5517/2019 ORDEROf course, there is a presumption under Section 112 of the Evidence Act regarding paternity of the children born during 280 days of cohabitation, however, presumption under Section 112 may not be available when it is shown that the parties had no access to each other at the time when the child could have begotten and, in such a case, the presumption could be rebutted.
8. There is a specific allegation of the husband that there was no access to each other at any point of time and yet children have born to the wife. Under the circumstances, DNA test can be a proper course to be carried out. However, at the same time, the rights of the wife are also required to be protected by passing certain orders to the effect that husband should deposit certain amount in the trial Court and the same would be liable to be paid to the wife and children, in case of DNA test being positive, with a rider that if the DNA test is negative then amount deposited may be paid to the husband- petitioner herein.
9. Considering the material on record, this Court is of the opinion that the impugned order is liable to set aside and direction is to be issued to the wife and children to the effect that DNA test of the sons to be conducted at Civil Hospital, Bhuj. However, before such test is carried out, the husband will deposit a sum of Rs.1 Lac in the trial Court, which will stand forfeited and would be handed over to the wife, if the husband is shown to be father of the children on the basis of DNA test result. In the event, the result reveals that the petitioner is not the father of the children, the money will be refunded by the trial Court to the petitioner herein. After deposit of such Page 10 of 11 Downloaded on : Fri Oct 25 23:16:13 IST 2019 C/SCA/5517/2019 ORDER amount, the wife shall accompany her sons to the Civil Hospital, Bhuj, at 11 a.m. on a fixed day and the petitioner herein-original plaintiff shall also remain present. It is hereby ordered that the plaintiff-husband and the children shall give their blood samples in Civil Hospital, Bhuj, and same shall be forwarded to Forensic Science Laborary, Gandhinagar, for DNA test. The Forensic Science Laboratory, Gandhinagar, shall submit its report as expeditiously as possible before the trial Court in a sealed cover. The expenses for such procedure will be born by the husband, which may be obtained in advance by the laboratory from the husband.
10. Liberty is hereby granted to the wife to comply or disregard the above order requiring holding of DNA test. In case, she accepts the direction, DNA test will determine conclusively the veracity of the accusation levelled by the petitioner-husband against her. In case she declines to comply with the direction issued by this Court, the allegation would be determined by the trial Court by drawing a presumption as contemplated in Section 114 of Indian Evidence Act, especially in the illustration (h) thereof.
11. The impugned order dated 11.12.2018 passed below Exh.14 in Hindu Marriage Petition No.56 of 2017 by learned Principal Senior Civil Judge, Gandhidham-Kutch is modified to the aforesaid extent. In view of above, present petition is disposed of. No order as to costs.
Sd/-
(A. P. THAKER, J) R.S. MALEK Page 11 of 11 Downloaded on : Fri Oct 25 23:16:13 IST 2019