Calcutta High Court (Appellete Side)
A - Wife vs B - Husband And Another on 10 January, 2019
Author: Rajasekhar Mantha
Bench: Rajasekhar Mantha
1 10-01-2019
Sl. 21 pk C. O. No. 368 of 2018 A - Wife Versus B - Husband and another Mr. Dhiraj Trivedi, Mr. Amit Sharma, Ms. Abha Tiwari ...for the petitioner.
Mr. Probal Kr. Mukherjee, Mr. Rajat Dutta, Ms. Moni Chatterjee ... for the opposite parties.
The revisionist's application is directed against an order dated 14th December, 2017 passed in Matrimonial Suit No.17 of 2015 now pending before the 14th Additional District Judge at Alipore, South 24-Parganas. By the impugned order, on the prayer of the husband made in an application under Section 151 of the CPC, at an interim stage and before the trial had commenced, a DNA test was directed to be undertaken of the child with the co-operation of the wife.
The revisionist is aggrieved by the same. In the plaint the opposite party/husband has sought divorce on the ground of adultery. There are pleadings available at paragraphs 9, 11, 14 and 16 of the plaint alleging infidelity of the revisionist/wife. The alleged paramour has also been impleaded as the second defendant in the suit. In 2 the written statement the revisionist/wife has specifically denied the entire allegations of the husband.
After the institution of the suit and during its pendency the opposite party/husband filed an application under Section 151 of the CPC, inter alia, contending at paragraph 3 that the revisionist has led an adulterous life and that the child born out of the wedlock was a result of cohabitation of the wife with the second defendant paramour. The allegations in such application have been again denied by the revisionist/wife. A further supplementary affidavit has been filed in the aid of the said application under Section 151 of the CPC wherein the opposite party/husband has averred that the child's blood group is AB+ while the blood group of the revisionist as well as the opposite party/husband is A+.
The Court below after considering the above pleadings and after hearing the parties in reference to the judgment of the Hon'ble Supreme Court has ordered the revisionist/wife to undergo the DNA test.
Counsel for the revisionist has argued as follows before me:-
(a) That the presumption under Section 112 of the Evidence Act should have invited the Court to first determine access between the parties and in the absence 3 of any proof to the contrary the presumption is that the child was born out of the wedlock of the revisionist and the opposite party.
(b) The interest of the child cannot be ignored even in a Matrimonial Suit where paternity is not directly in issue as the child may be basterdised by reason of any finding of adultery by a Matrimonial Court. The interest of the child cannot be ignored by the husband/opposite party and hence the Court below erred in ordering DNA test in the first place.
(c) The learned Counsel would also argue that the trial of the suit has not commenced and hence the order of DNA test may be premature and could wait for appropriate consideration upon the trial commencing.
In support of his argument learned Counsel for the revisionist would rely in some detail upon the judgement of the 'W' Vs. 'H' & Anr. being MAT. APP. (F.C.) 17/2016 & CM No.5064/2016 being a judgement of the Division Bench of Delhi High Court. In the said case the DNA test was declined after detailed consideration of the pleadings the effect of Section 112 of the Evidence Act the requirement of proof of access and also keeping the interest of the child as primary. 4
I have considered the said judgment and find that there is discussion about the leading case on the subject being the case of Dipanwita Roy Vs. Ronobroto Roy reported in (2015) 1 SCC 365. The Court had sought to distinguish the judgement based on absence of sufficient pleadings in the said matrimonial case that the Delhi High Court was concerned with. In the case of Dipanwita Roy (supra) the Hon'ble Supreme Court at paragraphs 10 to 14 has considered the earlier judgments on the subject particularly the cases of Nandlal Wasudeo Badwaik Vs. Lata Nandlal Badwaik reported in (2014) 2 SCC 576, Sharda Vs. Dharmpal reported in (2003) 4 SCC 493 and a number of other cases.
The substance of the dicta of the Dipanwita's case (supra) in my view is that while the presumption under Section 112 of the Evidence Act and rebuttal there of may be important if the actual truth is available by way of a reliable scientific test called the DNA test, the Court should not lightly brush it aside or disallow such a test.
The conflict between Section 112 of the Evidence Act and the DNA test, have been very succinctly and appropriately addressed in the first three lines of a Division Bench Judgement of the Kerala High Court being the case of Nizar 5 Vs. Raseena being O.P. (F.C.) No. 400 of 2017 dated 4th May, 2017. The opening lines are set out herein below :-
"Truth must triumph" is the hallmark of justice. When truth is known there is no need or room for any presumption. A presumption cannot prevail over truth of a fact established by science. (Nandlal Vasudeo Badwaik v. Lata :
AIR 2014 SC 932)."
Since the truth in the allegations of the husband can only be determined conclusively by the DNA test and as specific pleadings have been taken, the first and third argument of the revisionist cannot be accepted.
In view of the above there is little to be decided by this Court calling for interference with the judgment rendered in the Court below.
In so far as the second argument of the revisionist is concerned one needs to bear in mind the last part of paragraph 18 of the Dipanwita's Case (supra) is set out herein below:
"This course has been adopted to preserve the right of individual privacy to he extent possible. Of course, without sacrificing the cause of justice. By adopting the above course, 6 the issue of infidelity alone would be determined, without expressly disturbing the presumption contemplated under Section 112 of the Evidence Act. Even though, as already stated above, undoubtedly the issue of legitimacy would also be incidentally involved."
It is, therefore, clear that the privacy and future of the child can still be secured by applying Section 112 of the Evidence Act not withstanding the fact that the DNA test may go against the wife. In summation privacy without compromising on the truth.
The acceptance of the child in question by the husband and the rice ceremony conducted by him of the very child according to the petitioner have the effect of waiver of any adultery and hence this Court should not order the DNA test and according to him the Court below had erred in directing as such. This Court is not satisfied with the argument since it prima facie appears to this Court that the petitioner has stated that he was not aware in clear terms that the child not being his, at the relevant point of time. This Court does not wish to 7 give any final determination on the said issue and the matter is left open to be dealt with in the trial in the Court below. In view of the specific pleadings available on record of alleged adultery against the wife and in view of the dicta of the Supreme Court laid down in the Dipanwita Case (supra) as also the Nizar Vs. Raseena judgement (supra), I find no reason to interfere with the order passed by the Court below. It is, however, directed as follows:-
The opposite party/husband shall deposit a sum of Rs.2,00,000/- with the court below and the same shall be forfeited in favour of the wife in the event the result of DNA test shall go against the opposite party/husband. It is made clear that the revisionist/wife shall have the choice either to allow the DNA test or otherwise. If, however, she does not wish to undergo the DNA test, the opposite party/husband shall not be obliged to make the aforesaid deposit of Rs.2,00,000/-. The consequence in law as already stipulated in the judgement of Dipanwita Case (supra) and the judgement of Nandlal Vasudeo Badwaik Case (supra) shall follow to the extent applicable in the trial against the revisionist/wife.
Hence, C. O. 368 of 2018 is dismissed with the aforesaid observation.8
No order as to costs.
Photostat certified copy of this order, if applied for, be given to the parties upon compliance of all formalities.
(Rajasekhar Mantha, J.)