Madhya Pradesh High Court
Smt. Seema Sharma vs Amar Sharma on 21 February, 2006
Author: Rajendra Menon
Bench: Rajendra Menon
ORDER Rajendra Menon, J.
1. Challenge in this petition under Article 227 of the Constitution is made to an order dated 15th October, 2005 passed by the Family Court, Gwalior in Case No. 92- A of 2005 (Hindu Marriage Act), Amar Sharma v. Smt. Seema Sharma directing for DNA test to find out the parentage of a child said to have been born to the petitioner, Smt. Seema Sharma.
2. Facts in brief necessary for deciding the present petition are that the petitioner, Smt. Seema Sharma and the respondent, Amar Sharma were married as per Hindu rites and custom at Gwalior on 25th January, 1996. It is the case of the respondent/husband that at the time of marriage, he was working in the office of the Madhya Pradesh Police Housing Corporation, Division Gwalior and the petitioner/wife was working as Naib Tehsildar in the District Headquarter, Gwalior. It is the case of the respondent/husband before the Family Court that after three days of his marriage, it came to his knowledge that his wife was a lady with doubtful background and had illegal affairs in the past with certain persons. It is stated by the parties that immediately after marriage on 7th February, 1996, the husband was transferred from Gwalior to Shivpuri and after joining in Shivpuri, he was immediately posted at Chanderi where he is staying since February, 1996. Thereafter, the wife was also transferred from Gwalior to Indore as District Women and Child Development Officer, Indore on 19th March, 1996 and since then she is staying at Indore. It is the case of the respondent that ever since their marriage, they have not cohabited, they are living separately and a girl child was born to the petitioner on 21st December, 1996 at Agra. Inter alia contending that the petitioner/wife is having illegal relations and the child born to her is not his child, respondent/husband has filed an application before the Family Court at Gwalior and has sought a decree of divorce, so also, declaration to the effect that the child born to the petitioner on 21st December, 1996, is not his child. On the aforesaid application filed by the respondent/husband, the petitioner has filed her reply and has denied the averments made in the petition for divorce and declaration. It seems that various conciliation proceedings took place and ultimately, an application was filed by the respondent/husband purported to be an application under Order XXVI Rule 10-A, CPC, making a prayer that the child in question be subjected to DNA test. This application was objected by the petitioner and the grievance of the petitioner in this petition is that in spite of the objection, the application has been allowed by the impugned order.
3. Shri S.B. Mishra, learned Senior Counsel appearing for the petitioner made two grounds of attack to the impugned order. His first contention was that the relief of declaration claimed in the divorce petition is not maintainable and the same is beyond the jurisdiction of the Family Court as contemplated under Section 7 of the Family Courts Act, 1984. Inter alia contending that the Family Court does not have any jurisdiction to declare the legitimacy of child, it is argued that the application itself was not maintainable, and therefore, no direction can be issued for conducting DNA test.
4. That, apart, placing reliance on various judgments pertaining to subjecting a person to medical test and blood test examination, etc., Shri S.B. Mishra, learned Senior Counsel argued that in the facts and circumstances of the present case, the direction given for conducting DNA test is wholly illegal, unwarranted, and therefore, liable to be quashed.
5. In support of his contention with regard to maintainability of the application before the Family Court and the jurisdiction of the Family Court, Shri Mishra, learned Senior Counsel took me through the provisions of Section 7 of the Family Courts Act and inviting my attention to a judgment of the Supreme Court in the case of Renubala Moharana and Anr. v. Mina Mohanty and Ors. , and further in support of his contention that no DNA test can be ordered, he has placed reliance on judgments of the Supreme Court in the cases of Banarsi Dass v. Teeku Dutta (Mrs.) and Anr., , Goutam Kundu v. State of West Bengal and Anr. Tushar Roy V. Smt. Sukla Roy, 1993 Cri.LJ 1659.
6. It was also submitted by Shri S.B. Mishra, learned Senior Counsel that as the child in question was born to the parties during the subsistence of their marriage, a presumption has to be drawn that the child is born out of the wedlock, and therefore, in view of Section 112 of the Evidence Act, no declaration as prayed for can be granted.
7. Refuting the aforesaid, Shri H.D. Gupta, learned Senior Counsel argued that in directing for DNA test, the learned Family Court has not committed any error warranting interference in a petition under Article 227 of the Constitution. It was argued by Shri Gupta, learned Senior Counsel that the discretion exercised by the Family Court in the matter does not call for any interference in a petition under Article 227 of the Constitution. It was submitted by him by referring to various judgments on the question that direction given by the Court below is proper and as DNA test is necessary for resolving the dispute between the parties, no case for any interference is made out.
8. Inviting my attention to the following judgments, Shri H.D. Gupta, learned Senior Counsel sought for dismissal of the petition:
(i) Sharda v. Dharmpal ;
(ii) Hajiram Beevi v. Shamila P. Iqbal, II (2004) DMC 392;
(iii) Kanchan Bedi and Anr. v. Gurpreet Singh Bedi, I (2003) DMC 458; and
(iv) Bommi and Anr. v. Munirathnam I (2005) DMC 636; and
(v) Thogorani alias K. Damayanti v. State of Orissa and Ors. 2004 Cri.LJ 4003.
9. I have heard learned Counsel for the parties and perused the record.
10. Before adverting to the question with regard to the merit of the contentions raised regarding direction given for undergoing DNA test, the first ground raised by Shri S.B. Mishra, learned Senior Counsel regarding jurisdiction of the Family Court to entertain an application with regard to declaration sought for by the respondent may be considered.
11. A perusal of the application filed by the respondent/husband before the Family Court as contained in Annexure P-4 indicates that after narrating the facts, the relief claimed for by him in the application is that the marriage between the parties be dissolved and a decree to that effect be passed. The second relief claimed is that a declaration be issued to the effect that the child born to the non-applicant, the petitioner herein on 21st December, 1996 is not the child of the applicant/husband.
12. Section 7 of the Family Courts Act, 1984 (hereinafter referred to as 'the Act') deals with the question of jurisdiction of the Family Courts. According to the provisions of this section, a Family Court shall have and can exercise all the jurisdiction exercisable by any District Court or any Subordinate Civil Court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the explanation to the said section. Clause (e) to the explanation pertains to a suit or proceeding for a declaration as to the legitimacy of any person.
13. In the case of Renubola Moharana (supra), referred to by Shri S.B. Mishra, learned Senior Counsel, the scope of jurisdiction of the Family Court, with particular reference to Clause (e) of the explanation was considered and it has been held by the Supreme Court in the case that under Section 7(1) of the Family Courts Act, read with Clause (e) of the explanation, a suit or proceeding for declaration as to the legitimacy of a person is within the jurisdiction of the Family Court. It was held by the Supreme Court in the aforesaid case that the question of status of child in relation to the parties to the proceedings can be incidentally gone into by the Family Court if necessary while deciding the guardianship. The facts of the said case and the present case are entirely different. A complete reading of the observations made by the Supreme Court in Paragraph 6 of the aforesaid judgment clearly indicates that in a particular case if question pertaining to status of a child in relation to the parties to the petition pending before the Family Court is involved, the said question can be gone into by the Family Court under Clause (e) of the Explanation to Section 7(1) of the Act.
14. In the case of Renubala Moharana (supra), it has been held by the Supreme Court in Paragraphs 5 and 6 as under:
...In effect, the High Court held that while deciding the petition for guardianship/custody, the question of status or inter se relationship of the parties can be incidentally considered by the Family Court.
...The question of status of the child in relation to the parties to the petition can be incidentally gone into by the Family Court if necessary while deciding the guardianship petition. That liberty has been granted to the Family Court....
15. Keeping in view the aforesaid observations of the Supreme Court, so also, taking note of the observations made by the Supreme Court as contained in Paragraph 14ofits judgment in the case of K.A. Abdul Jaleel v. T.A. Shahida , the provisions of Clause (e) to the Explanation has to be given a liberal interpretation and the restricted meaning as advanced by Shri S.B. Mishra, learned Senior Counsel cannot be applied. Accordingly, it has to be held that the legitimacy or otherwise of a child born to the parties in a proceeding before the Family Court can be gone into by the Family Court and for the said purpose, the Family Court has jurisdiction. Accordingly, the first ground raised by Shri S.B. Mishra, learned Senior Counsel has to be rejected.
16. It has to be held that the Family Court does have jurisdiction to grant the declaratory relief claimed by the respondent No. 1.
17. Placing heavy reliance on the observations made by the Supreme Court in the case of Gautam Kundu (supra), it was emphasised by Shri S.B. Mishra, learned Senior Counsel that in the matrimonial proceedings, paternity of child has to be determined by referring to the provisions of Section 112 of the Evidence Act and no person can be subjected to blood test for finding out the parentage of a child. Shri S.B. Mishra, learned Senior Counsel had referred to the observations made in Paragraph 26 of the aforesaid judgment. The aforesaid judgment has been considered subsequently by various Courts in series of cases and the cases relied upon by Shri H.D. Gupta, learned Senior Counsel which pertains to conducting DNA test have taken note of the aforesaid judgment. In the case of Bommi (supra), the Madras High Court has held that if the legitimacy of a child is suspected, DNA test may provide good evidence to show the biological connection of the child and can be proved in support of a maintenance claim.
18. The question of conducting DNA test has to be considered on the basis of the facts and circumstance of each and every case. In the present case, the records indicate that the marriage between the parties took place on 25th January, 1996 and since 7th February, 1996, it is the case of the respondent/husband that they are living separately. A child was born on 21st December, 1996 and considering the facts and circumstance of the case, the learned Family Court has found it proper to direct for DNA test and the reason that weighed in the mind of the Court to order such a DNA test were two folded. First of all, the learned Court had taken note of the fact that the parties were living separately for more than ten months. Even though the Court has observed that this is a question of evidence to be decided but in the counselling which was held between the parties on 16th April, 2005, petitioner had given her consent for DNA test. It has been indicated by the learned Court that various order-sheets of conciliation indicates that the application for DNA test was submitted by the husband/respondent only because it was agreed to by the petitioner at the time of conciliation but she is denying the same now in reply to the application. It is in the backdrop of the aforesaid reasons, that question of interference in the matter, in this petition has to be considered by this Court.
19. The question of subjecting a person to blood test, DNA test or other medical examination has been subject-matter of deliberations in various cases. After the judgment of the Supreme Court in the case of Goutam Kundu (supra), in the year 1993, the matter has been considered again in various cases. In most of the cases, the development in genetic science and the new technology made available for determining parentage or maternity dispute has been taken note of. It has been observed in most of the cases that in cases of disputed paternity of a child, mere comparison of DNA obtained from the body fluid or body tissues of a child with his father and mother can offer infallible evidence of biological parentage. In view of the established scientific fact, DNA parentage test provides evidence to show that a person has a biological connection with another person and use of this technology is made available to the Courts in order to determine the parentage or maternity dispute so as to arrive at a correct conclusion.
20. The Supreme Court in the case of Sharda (supra), has considered the effect of Article 21 of the Constitution in such matters and has also taken note of the fact as to whether a Matrimonial Court has the power to direct a party to undergo medical examination and whether passing of such an order would be in violation of Article 21 of the Constitution. It has been concluded by the Supreme Court in the aforesaid case that the Matrimonial Court has the power to order a person to undergo medical test. Decision of the Supreme Court in the aforesaid case in Paragraph 81 indicates the final conclusion arrived at by the Supreme Court and the same reads as under:
(1). A Matrimonial Court has the power to order a person to undergo medical test.
(2) Passing of such an order by the Court would not be in violation of the right to personal liberty under Article 21 of the Indian Constitution.
(3) However, the Court should exercise such a power if the applicant has a strong prima facie case and there is sufficient material before the Court. If despite the order of the Court, the respondent refuses to submit himself to medical examination, the Court will be entitled to draw an adverse inference against him.
21. It is clear from the aforesaid that a Matrimonial Court has the power to issue such a direction. However, before exercising the power, a prima facie case and sufficient material should be available before the Court. In the present case, it cannot be said that the prima facie case and material were not available.
22. In the case of Sadashiv Mallikarjun Kheradkar v. Nandini Sadashiv Kheradkar, 1995 Cri.LJ 4090, the Bombay High Court in Paragraphs 8 and 9 has held as under:
There is no provision either in the Evidence Act or in the Hindu Marriage Act or in the Code of Civil Procedure or in the Code of Criminal Procedure providing for direction to a party to submit himself or herself for giving blood sample for examination. In the absence of such a provision, the Court can always invoke Section 151 of the Code of Civil Procedure for giving appropriate direction in the larger interest of justice. We have the latest authority of the Apex Court reported in Goutam Kundu v. State of West Bengal (supra), where the question of paternity of child and blood test was discussed and certain guidelines have been laid down. The Apex Court has observed that the Court has power to direct the blood examination but it should not be done as a matter of course or to have a roving inquiry. There must be some strong prima facie case to be established by the husband to show non-access in order to get over the legal presumption under Section 112 of the Evidence Act and Supreme Court has also observed that nobody can be compelled to give blood sample. Therefore, the position is that the Court has power to give a direction to a party to give blood sample for the purpose of examination of the same but the party cannot be compelled to give blood for testing purpose. In other words, the Court can direct a party and if the party fails to obey the direction, the Court cannot compel the party to give blood sample. In such circumstances, when there is a direction and non-compliance by a party, the only thing is that the Court may draw an adverse inference against the party who fails to give blood samples in spite of the direction of the Court.
In my view, since there is sufficient foundation led in the pleading and the petitioner is seriously asserting that the child is not born to him, in the interest of justice, I feel that the respondent should be called upon to give blood sample and if she fails to obey this order, nothing can be done to compel her, but it is left to the Court to draw such adverse inference depending upon the circumstances of the case.
23. All these cases have been considered by the Delhi High Court, Kerala High Court and the Madras High Court in the cases referred to by Shri H.D. Gupta, learned Senior Counsel and after considering all the judgments, it has been held in all these cases that the law as it presently stands does not contemplate any impediment and violation of the fundamental right in directing a person to submit to DNA test. A complete reading of all these judgments indicate that when in a given matrimonial case parentage of a child is in controversy, the Courts have discretion to order for DNA test.
24. Once, it is held that the Courts have discretion to order for DNA test then interference in a petition under Article 227 of the Constitution can be made only if it is found that the order passed is erroneous to such an extent that in normal circumstances such an order cannot be passed. A perusal of the impugned order indicates that the Family Court after evaluating the material available on record and after taking note of the provisions of Section 112 of the Evidence Act and after considering the judgments of the Supreme Court on the question has found it proper to direct for conducting a DNA test. Discretion exercised by the Family Court in the matter cannot be termed as perverse or erroneous to such an extent that interference in the matter is called for in this petition.
25. Accordingly, in the facts and circumstances of the case, it cannot be said that in passing the impugned order and issuing a direction for DNA test, the Family Court has committed any grave error warranting interference in a petition under Article 227 of the Constitution.
26. Accordingly, finding no ground to interfere in the matter, petition stands dismissed without any order as to cost.