Calcutta High Court (Appellete Side)
Sri Sautik Paul vs Smt. Susmita Pal @ Chandana Pal on 23 August, 2017
Author: Ashis Kumar Chakraborty
Bench: Ashis Kumar Chakraborty
1 (07) 23.08.2017
(p.j.) IN THE HIGH COURT AT CALCUTTA CIVIL REVISIONAL JURISDICTION APPELLATE SIDE C.O. 289 of 2012 Sri Sautik Paul
-versus-
Smt. Susmita Pal @ Chandana Pal Mr. Satyajit Mondal Mr. Amar Nath Sen Mr. Somnath Maitra ... for the petitioner Mr. Uttiya Ray ... for the opposite party This revisional application, at the instance of the plaintiff husband in a matrimonial suit is directed against the order dated December 2, 2011 passed by the learned Additional District-Cum- Sessions Judge, 1st Court, Burdwan in MAT Suit No. 388 of 2009 (renumbered as MAT Suit No. 7 of 2010).
The petitioner filed the matrimonial suit, claiming a decree for dissolution of marriage, against the opposite party, under Section 27 of the Special Marriage Act, 1954, inter alia, on the grounds of cruelty and adultery. It is the case of the petitioner in the plaint that the opposite party wife is living in adultery and he is not the father of the son born to the opposite party. In this suit, the petitioner husband filed an application seeking DNA test of 2 the male child born to the opposite party. The purpose of the said application seems to be that, if the DNA examination reflects that the male child born to the opposite party wife is not the child of the petitioner the allegations made by him in the plaint of the matrimonial suit against the opposite party wife would stand substantiated. By the order dated December 02, 2011 the learned Court below rejected the said application. As mentioned earlier, it is the said order dated December 02, 2011 passed by the learned Court below which has been assailed in this revisional application.
On August 07, 2017 when this application was taken up for hearing, Mr. Satyajit Mondal learned Advocate for the petitioner husband contended that in the present case when the petitioner denied to be the father of the male child born to the opposite party wife and one of the grounds for dissolution of marriage urged by the petitioner against the opposite party wife is that the latter is guilty of acts of infidelity, the learned Court below committed an error of law in rejecting the prayer of the petitioner for DNA test of the male child. In support of his contention, Mr. Mondal relied on the decision of the Supreme Court in the case of Dipanwita Roy Vs. Ronobroto Roy, reported in 2015(1) CHN (SC) 14. He submitted that as directed by the Supreme Court in the said decision the petitioner is ready to deposit sufficient amount of money in the learned Court below as a condition for passing a direction by this Court for the DNA test of the minor child born to the opposite party wife. 3
On the other hand, Mr. Uttiya Ray learned Advocate appearing for the opposite party wife submitted that the allegations made by the petitioner husband in the matrimonial suit against the opposite party wife that the latter has committed acts of adultery absolutely untrue and the same have been alleged with the sole motive to malign the opposite party in public and to avoid the liability of payment of the interim maintenance for the minor child. He, however, submitted that if the petitioner deposits Rs.3,00,000/- (Rupees Three lakhs only) with the learned Court below, which shall stand forfeited and made over to the opposite party wife in the event of the results the DNA test shows the petitioner to be the father of the male child, the opposite party will not object to the minor child undergoing the DNA test before the Central Forensic Science Laboratory. At this stage, in order to enable the learned Advocate for the petitioner to take appropriate instruction the hearing of this application adjourned.
Today, when this application is taken up for hearing, Mr. Mondal, after taking instruction from the petitioner, submitted that the petitioner husband is ready to deposit Rs. 3,00,000/- (Rupees Three lakhs only) with the learned Court below, before minor child undergoes the DNA test and subject to the condition that in the event the results the DNA that show him to be the father of the minor child, the entirety of the said amount shall stand forfeited and made over to the opposite party wife.
Having considered the facts of the case, I find that the aforementioned condition as agreed by the parties, to be in 4 conformity with the ratio of the decision of the Supreme Court in the case of Dipanwita Roy (supra). In the said decision it was further held by the Supreme Court that in case the wife accepts the direction issued by the Court requiring the minor child to undergo DNA test, the result of such DNA test will determine conclusively the veracity of the accusation levelled by the husband, against the wife. Learned Counsel appearing for the respective parties also submitted that the same direction should also be made applicable to this case.
Accordingly, the present revisional application, C.O.289 of 2012 is disposed of with the following directions:
(i) If the petitioner deposits Rs. 3,00,000/- (Rupees Three lakhs only) in cash in the learned Court below within October 27, 2017, the opposite party wife shall allow the minor child to undergo the DNA test to be held by the Central Forensic Science Laboratory, Kolkata at the cost of the petitioner;
(ii) after the petitioner deposits the aforementioned amount of Rs. 3,00,000/- (Rupees Three lakhs only) in the learned Court below, the petitioner and the opposite party, together with the minor child shall approach the Central Forensic Science Laboratory, Kolkata for drawing the DNA samples of the petitioner and the minor child within November 10, 2017;5
(iii) the petitioner shall pay all necessary costs and expenses to the Central Forensic Science Laboratory, Kolkata for the DNA tests of himself and the minor child;
(iv) the Central Forensic Science Laboratory, Kolkata shall forward the results of the DNA tests of the petitioner and the minor child to the learned trial Judge within a period of three weeks from the date of the tests in a sealed cover;
(v) in the event the result of the DNA tests carried out by the Central Forensic Science Laboratory, Kolkata shows the petitioner to be the father of the male child, the entire amount of Rs. 3,00,000/-
(Rupees Three lakhs only) deposited by the petitioner with the learned Court below shall stand forfeited and the learned trial Judge shall allow the opposite party to forthwith withdraw the said sum without any further reference to this Court;
(vi) the result of the DNA test will conclusively determine the veracity of the accusation about the allegation of infidelity levelled by the petitioner husband, against the opposite party wife; and
(vii) in the event the result of DNA test reveals that the petitioner is not the father of the child, the amount of Rs. 3,00,000/- (Rupees Three lakhs only) will be 6 refunded by the learned Court below to the petitioner husband.
A copy of this order will immediately be forwarded by the petitioner to the Central Forensic Science Laboratory, Kolkata so that the latter is ready to obtain the DNA samples of the petitioner and the minor child on a specific date.
However, there shall be no order as to costs. Certified website copies of the order, if applied for, be urgently made available to the parties, subject to compliance with all requisite formalities.
(Ashis Kumar Chakraborty, J.)