Sh. Rajesh Chaudhary vs Nirmala Chaudhary on 9 November, 2005

[Cites 16, Cited by 18]

Delhi High Court

Sh. Rajesh Chaudhary vs Nirmala Chaudhary on 9 November, 2005

Equivalent citations: 125(2005)DLT311, II(2005)DMC814

1. This petition challenges the order dated 9th September, 2004 passed by the Additional District Judge, Delhi dismissing the application of the petitioner filed under Order XXVI Rule 10A read with Section 151 of CPC for seeking permission to ascertain the paternity of the female child of the petitioner/husband and the respondent/wife. Very important questions affecting matrimony and the limits of the rights of a spouse (husband) to demand the DNA testing of a child allegedly not fathered by him arise in this petition. Dignity of a woman and its parameters and whether or not DNA testing should be ordered merely upon the questioning of the paternity of the child also arise in this petition under Article 227 of the Constitution of India. Equally important is the issue whether an estranged wife claiming maintenance for herself and the child can be denied any interim maintenance while the complex issue of DNA testing on an allegation of illegitimacy of the child awaits determination.

2. The petitioner husband Rajesh Chaudhary was married to the respondent wife Nirmala Chaudhary in December, 2000 and a daughter was born on 26th October, 2001 and after initiation of criminal proceedings by the wife and during the determination of matrimonial proceedings arising from the divorce petition filed by the petitioner and a claim for interim maintenance by the respondent/wife, a plea was raised by the petitioner that he had not fathered the child.

3. The petitioner's case is as under:-

(a) On 29th September, 2003 a divorce petition had been filed by the petitioner/husband. Before orders for the interim maintenance of the daughter and the respondent wife could be passed the petitioner filed an application under Order XXVI Rule 10 A read with Section 151 of CPC.

(b) That since their marriage on 6.12.2000, the respondent/wife had denied the petitioner cohabitation with her on one pretext or another.

(c) This was done as the respondent wife had developed an illicit sexual relationship with her paramour one Bablu Sharma.

(d) A gynaecologist Smt. Sudha Bharti had been visited on 20th December, 2000 who examined the respondent and prescribed medication to facilitate cohabitation.

(e) The petitioner was shocked by the respondent's pregnancy and the birth of a daughter on 26.10.2001. The respondent in answer to the petitioner's querries about her pregnancy without cohabitation with the petitioner asserted her love for Bablu Sharma whom she declined to desert.

(f) Consequently, a DNA test was sought so as to demonstrate that the petitioner was not the father of the child and also to prove the infidelity of Page 2310 the respondent, and the petitioner averred that he was thus not responsible for payment of maintenance.

(g) By the impugned order, the learned Additional District Judge dismissed the application filed by the husband/petitioner by relying upon the judgment of the Hon'ble Supreme Court in Gautam Kundu v. State of West Bengal and Anr., though the applicable judgment is Sharda v. Dharampal, . The relevant position of law laid down by three Judges of the Hon'ble Supreme Court in Sharda v. Dharampal, is as follows:-

''...A Matrimonial court has the power to order a person to undergo medical test and passing of such an order by the Court would not be in violation of the right to personal liberty under Article 21 of the Constitution of India.'' ''A Judge of the High Court has power to order a blood test wherever it is in the best interest of the child.'' ''In certain cases medical examinations by the experts in the field may not only found to be leading to truth of the matter but may also lead to removal of misunderstanding between the parties. It may bring the parties to terms.''

(h) That in Sharda's case (supra), it was held that Gautam Kundu's case was not an authority for the preposition that under no circumstances, the Court can direct that blood test be conducted. It is further held that the right of privacy was not a guaranteed fundamental right by referring to the judgment of the Hon'ble Supreme Court in Kharak Singh v. State of UP, .

(i) Reliance has also been placed on the judgment of this Court in Kanchan Bedi and Anr. v. Gurpreet Singh Bedi, where it has been held as under:-

''From this brief narration of precedents, it appears to me to be difficult to resist that the law, as it presently stands, does not contemplate an Page 2311 impediment or violation of rights in directing persons to submit themselves for DNA test specially where the parentage of a child is in controversy for the grant of maintenance.''

(j) Reliance has also been placed on a judgment of this court in Crl.M.(M) No.3029/1993 where the following view was taken:

''At times, life becomes destined to play a very cruel role. It gives torture, not rupture, tears not cheers, problems not pleasures, frustration not fineness. Was Montage right when he observed in his famous classic-- ''A good marriage would be between a blind wife and a deaf husband''.

''Marriage is a voluntary life sentence. Divorce is a tragedy, but at times, that's the best that can be done.''

(k) A quotation of Lord Denning to the following effect has also been relied upon:-

''Equality is the order of the day. In both directions. For both sexes. What is sauce for the goose is sauce for the gander.''

4. Thus, the sum and essence of the submissions of the petitioner is that the scientific advancements give fresh and accurate means of ascertaining the truth and consequently there should not be any hesitation to resort to such means when the occasion so requires. The aim of the judicial process is towards ascertainment of the truth.

5. The learned counsel for the respondent/wife on the other hand has opposed the routine DNA testing sought by the petitioner/wife and submitted as follows:-

c) On 15th January, 2002, the petitioner had beaten the respondent leading to a police complaint lodged and a written assurance was given by the petitioner to mend his ways. Similar apologies were tendered on 15th April, 2002 by the petitioner before the Police post, Sarai Kalen Khan.

d) On 11th October, 2002 the respondent was beaten up and was medically checked up at AIIMs and the MLC report was sent to Police Station, Sarai Kale Khan. On 28th November, 2002, upon a complaint by the respondent to the Crime against Women Cell, an FIR No. 102/03 under Sections 498A/406/34 IPC was registered at Police Station, Nizamuddin, against the petitioner.

a) There were dowry demands by the petitioner and the respondent was tortured and harassed during her stay in the matrimonial home. After the marriage in Madhubani on 6th December, 2000, till January, 2001 parties lived in the matrimonial home. After that respondent/wife was forced to leave the matrimonial home in January, 2001. The petitioner husband thereafter visited the paternal house of the respondent in February, 2001.

b) In April 2001, the petitioner was transferred from Kanpur to Delhi and both the parties shifted to a rented house at Nangli Razapur, New Delhi. The petitioner was constantly torturing the respondent and upon a birth of a female child on 26th October, 2001, the petitioner became extremely upset. In December, 2001 the respondent was compelled to leave her matrimonial home and upon the tendering of an apology by Page 2312 the petitioner, the respondent re-started living with the petitioner in the paternal house of the respondent.

e) The respondent has relied upon the following pleas taken by the petitioner in the anticipatory bail application dated 21st March, 2003 to contend that the petitioner himself had admitted access to the respondent:

''That the applicant/accused was married to the complainant in a simple manner on 6.12.2000 as per Hindu Rites and ceremonies at Village Chohadeba Dist. Madhubani, Bihar. Since then the applicant and his wife are living alone in a rental house at House No. 45, Sarai Kalen Khan, New Delhi and out of their wedlock a baby child was born on 26.10.2001.''

f) In a Criminal Misc. (Main) No. 1206/2003 before the High Court, the petitioner had averred as follows:-

''That the applicant/accused was married to the complainant in a simple manner on 6.12.2000 as per Hindu Rites and ceremonies at Village Chohadeba Dist. Madhubani, Bihar. Since then the applicant and his wife are living alone in a rental house at House No. 45, Sarai Kalen Khan, New Delhi and out of their wedlock a baby child was born on 26.10.2001.''

g) In the petition of divorce access to the respondent has been admitted by the petitioner by virtue of the following averments:

''Para 1 ''After eight days of marriage, Gauna (departure of bride from her parental home to matrimonial home) ceremony was performed and respondent was brought to her matrimonial home at village Majholia, P.S. Ashok Paper Mills, Distt. Darbhanga (Bihar).'' Para 3 ''That after Gauna respondent stayed for one month at her matrimonial home at village Majholia, Distt. Darbhanga (Bihar) and was treated very nicely fulfillled all her demand and acted as respondent desired.'' Para 5 ''That from Kanpur, the place of posting of the petitioner, he want time and again to respondent at Delhi but respondent never treated him as her husband nor having any love and affection towards the petitioner and what to talk of co-habitation so much so that on the eve of Holi Festival on 10.3.2001 the petitioner went to the respondent with presentations and gifts for entire family of the respondent but he was maltreated/ humiliated by the respondent as well as her family members and consequently frustrated with the behavior of his in-laws, he came back to Kanpur.'' Para 6 ''It is worthwhile to mention that after great efforts, respondent was brought from her brother's residence to petitioner's residence in Delhi, even then she did not give any love and affection to the petitioner which a husband expect from his wife and she used to take money and other commodities to her mother in absence of the petitioner.'' Para 8 ''That the respondent used to leave the residence of the petitioner every day at 9 O'clock and used to return at night in late hours about 11 to 12 O'clock without any reasoning and cause. But the petitioner in order to maintain the dignity in the society never dared to ask the respondent the cause of her remaining out of residence.

Page 2313 Petitioner was left with no option to leave the respondent's place and returned to his residence.''

h) Even in the application for DNA testing, the petitioner had admitted access as per the following pleas raised by him:

''Para 1 ''That the Petitioner married with Respondent on 06.12.2000 according to Hindu rites and ceremonies at Distt. Madhubani, the state of Bihar after month of the marriage Respondent came to Delhi and continued to reside with her mother at Jangpura, Delhi.'' Para 2 ''That on 16.3.2001 the Petitioner was transferred to Delhi office of his company and the respondent was brought to live together with the Petitioner but the Respondent play hide-and-seek and used to come back to her home at late night."

Para 3 ''It is relevant to mention here that many times Respondent remain absent from her matrimonial home and stay with Bablu Sharma at night and whenever the Respondent came in the morning on enquiry the respondent replied that she will do according to her own will and she likes, if the Petitioner will object she will go for the police at last the complaint was filed against the Petitioner."

i) Reliance has been placed on Section 112 of the Indian Evidence Act, 1872 which reads as follows:-

''Section 112. The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within 280 days after its dissolution, the mother remaining unmarried, shall be conclusive proof that is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other any time when he could have been begotten.''

j) Reliance has also been placed on the 69th report of the Law Commission wherein it has been stated that the principle underlying the above provision was to prevent the patrimony being disputed except to the extent specified in the Section. The following report of the Law Commission was also relied upon:

''Decided cases on Section 112 establish that the presumption can, at present, be rebutted only by proof of non-access. This, it was stated, created anomalies, and the resultant position is an artificial one, particularly in view of scientific developments which can now furnish very reliable evidence, at least of a negative character.

The suggestion made to us was that for the reasons given above, the presumption should be rebuttable not merely by evidence of non-access which is already allowed but, in civil cases, by other evidence.

In regard to criminal cases, the present position was to continue, since the rebutting evidence was not, in most cases, able to establish guilt beyond reasonable doubt.

We are not however inclined to accept the suggestion even for civil cases, as we do not wish to add to the kind of evidence that may throw any doubt on the legitimacy of children''.

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6. The petitioner has also relied on the judgments of Banarsi Das vs Teeku Dutta (Mrs.) and Another reported as and Gautam Kundu Vs State of West Bengal and Another reported as the relevant portion of which(Gautam Kundu's case) reads as under:-

In matters of this kind the court must have regard to Section 112 of the Evidence Act where the words `conclusive proof' must be understood by their definition in Section 4. That section is based on the well known maxim pater est quem nuptioe demonstrant (he is the father whom the marriage indicates).

''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, no person can be compelled to give sample of blood for analysis against his/her will and no adverse inference can be drawn against him/her for this refusal. Courts in India cannot under blood test as a matter of course. Wherever applications are made for such prayers in order to have proving inquiry, the prayer for blood test cannot be entertained.

It is a rebuttable presumption of law that a child born during the lawful wedlock is legitimate, and that access occurred between the parents. The presumption can only be displaced by a strong preponderance of evidence, and not by a mere balance of probabilities. 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.

Therefore, there must be a strong prima facie in that the husband must establish non access in order to dispel the presumption arising under Section 112 of the Evidence Act. ''Access'' and ''non access'' mean the existence or non-existence of opportunities for sexual intercourse, it does not mean actual ''cohabitation''.

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.''

7. A perusal of the pleadings of the husband also showed that the petitioner had admitted access to his wife. The child was born on 26th October, 2001 and the marriage had taken place on 6th December, 2000. However, the allegation of adultery and the illegitimacy of the child was raised, by the petitioner only about two years after the birth of the baby girl i.e., nearly three years after the marriage. The petitioner has not demonstrated that any other contemporaneous complaint was raised by the petitioner or any Page 2315 correspondence suspecting the chastity of the respondent wife was addressed to any relative of the petitioner or even to the respondent wife. In the application for anticipatory bail which preceded the petitioner's divorce petition no claim about the legitimacy of the petitioner's daughter was made by him.

8. A perusal of the internecine litigation between the parties also discloses that (a) a girl child was born on 26th October, 2001 to the petitioner. (ii) the departure of the respondent wife from the petitioner's house led to an eventual reconciliation (iii) on 3rd January, 2002 the petitioner apologized to the respondent wife and started living with the respondent wife at the parental house of the respondent. (iv) eventually violence again erupted and a police complaint was lodged on 15th January, 2002 wherein the petitioner gave an assurance in writing that he would mend his ways. (v) a similar apology was again tendered in a police complaint on 24th January, 2002 and there was another incident of respondent wife being beaten up on 11th October, 2002 leading to a MLC Report. (vi) On 11th March, 2003 a FIR No.102/03 under Section 498A/406/34 IPC was registered at Police Station, Hazrat Nizamuddin. Even in the anticipatory bail application before the Trial Court and in Criminal Misc. (M) No.1206/2003 in this Court the petitioner did not make an allegation of the legitimacy of the child.

9. Significantly Section 112 of the Indian Evidence Act is pertinent as set out hereinabove and shows that a birth of child during the continuance of a valid marriage or even within 280 days after its dissolution was to be conclusive proof that the child is legitimate unless it could be shown that the parties to the marriage had no access to each other at any time when the conception took place. In the present case the petitioner's own pleadings in various proceedings established clear access. Even the Law Commission of India's 69th Report had viewed with disfavor adducing of any kind of evidence which could throw doubt on the legitimacy of children.

10. Reliance has been placed by the learned counsel for the petitioner, Shri Ajay Mehrotra on Sharda Vs Dharampal reported as to contend that the said decision overruled the decision in Gautam Kundu vs State of West Bengal and Another reported as . On the contrary the Hon'ble Supreme Court in Sharda's case (supra) held that Gautam Kundu's case (supra) could not be an authority to plead that blood test could not be directed under any circumstances. However the mechanical passing of such orders were held to be untenable in Gautam Kundu's case (supra) as interpreted by the Hon'ble Supreme Court in Sharda's case (supra). The Supreme Court also noticed that in Sharda's case (supra) such directions could ordinarily be made if it was in the interest of the child.

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11. In my view notwithstanding the conflict suggested by the petitioner between Sharda's case (supra) and Gautam Kundu's case (supra), the issue involved in the present case is squarely covered by the decision of the Hon'ble Supreme Court in Banarsi Dass Vs Teeku Dutta (Mrs.) and Another reported as . The relevant portions of the said judgment are as follows:-

''8. In Goutam Kundu v. State of W.B. this Court held, inter alia, as follows: (SCC p. 428, para 26) ''26. (I) 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.''

12. It is rebuttable presumption of law that a child born during 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....''

13. The learned counsel for the respondent, Shri Sanjoy Ghose has also given certain useful suggestions about the method and manner of early disposal in respect of the maintenance applications.

14. I am consequently of the view that in order to expedite the disposal of maintenance applications which early disposal is eventually in the interest of both the spouses and the children, the matrimonial courts should follow the following procedure:-

(i) when a notice for maintenance is issued the respondent should be directed to file a self-assessment of his income and what according to him is the admitted liability of maintenance payable by the said respondent.

15. India is a signatory to Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) which was adopted by the United Nations General Assembly. The relevant portions of Articles 5 and 16 are relevant and read as follows:-

9. It was noted that Section 112 of the Indian Evidence Act, 1872 (in short ''the Evidence Act') requires the party disputing the parentage to prove non-access in order to dispel the presumption of the fact under Section 112 of the Evidence Act. There is a presumption and a very strong one, though a rebuttable one. Conclusive proof means proof as laid down under Section 4 of the Evidence Act.

10. 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 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 in general presuming against vice and immorality.

''13. We may remember 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 Page 2317 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 favor of the innocent child being bastardised 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 answered in the light of what is meant by access or non-access as delineated above.'' The above decision was sought to be distinguished by the learned counsel for the petitioner, Shri Mehrotra on the ground that it did not arise from any matrimonial proceedings but was in fact a decision rendered in succession proceedings. In my view while the decision in Banarsi Dass's case (supra) was rendered in succession proceedings, nevertheless the findings of law were in respect of the determination of the legitimacy of a child and the scientific tests therefore and the aforesaid decision is thus directly applicable and relevant for the present case.

12. I am consequently of the view that the Sharda's case (supra) does not support the petitioner's case in the manner sought to be contended by the petitioner as the petitioner has not been able to show that he did not have any access to his wife. In this context the observations of Jyotirmoy Adhikari in his book on ''DNA Technology and its Application in the Administration of Justice : Problems and Prospects'' noted above are relevant and have noted the fallibility of the human angle which is involved in the determination of DNA evidence.

Page 2318

(ii) document such as (a) Income-tax returns for last 3 years in cases where returns are filed (b) details of credit cards and club memberships (c) details of phones, cell phone (d) details of bank accounts, fixed deposits, shares, bonds etc (e) details of immovable properties including family properties where the respondent has a share and self owned properties (f) details of vehicles and (f) last pay certificate should also be directed to be filed when available.

(iii) When the case comes after notice and a self-assessment of income and the admitted liability of maintenance has been stated by the respondent, then without prejudice to the claimant's plea of a higher amount payable, the said admitted amount and the arrears of the said admitted amount should be ordered on that very date or on any other date not later than 4 weeks from the returnable date while awaiting the determination of the claims made by the rival parties.

''Article 5 : States Parties shall take all appropriate measures:

(a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women..'' ''Article 16 : 1. States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women:....

(c) The same rights and responsibilities during marriage and at its dissolution;

(d) The same rights and responsibilities as parents, irrespective of their marital status, in matters relating to their children; in all cases the interests of the children shall be paramount;

(f) The same rights and responsibilities with regard to guardianship, wardship, trusteeship and adoption of children, or similar institutions where these concepts exists in national legislation; in all cases the interests of the children shall be paramount.'' The above articles 5 and 16 of CEDAW thus emphasize that a women's dignity should not be violated and she should not be discriminated against on grounds of allegations which are not well founded. Coupled with the women's dignity is the fate and the self-respect of the child. The paramouncy of the interest of children cannot be overemphasized. Taking the aforesaid factors into account I am further of the view that to order a DNA Test merely because of an allegation raised in the divorce petition without there being a strong case therefore would also not be conducive to the welfare of the child.

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16. In my view, the minor child cannot be made to wait for the maintenance amount during the pendency of the application of maintenance while the determination of the child's legitimacy takes place since educational and other household expenses do not and cannot await the decision of the Court on such a complexism. Thus since the sustenance of a minor child and her mother, the petitioner's wife is concerned, it cannot await the determination of the alleged illegitimacy and should be ordered expeditiously if found payable.

17. Thus it is absolutely essential that irrespective of the fact that an allegation of illegitimacy has been made, nevertheless the determination of legitimacy should not have in any event forestall the payment of interim maintenance. To adopt a course which denies the child and indeed the mother the maintenance while the complex issue of the determination of the illegitimacy of the child gets resolved, would be doing a signal disservice for the cause of a sustenance of the weaker sections of the society. It is therefore incumbent upon on all Courts dealing with matrimonial matters to ensure that till the question of legitimacy is decided against the wife, the payment of the interim maintenance should not be delayed.

18. In this view of the matter the writ petition cannot be sustained and is accordingly dismissed. However, I must place on record the able assistance provided by both the counsel for the petitioner Shri Ajay Mehrotra and the counsel for the respondent, Shri Sanjoy Ghose in resolving the important issues arising in this petition.

19. The writ petition is accordingly dismissed but with no order as to costs.

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