Delhi District Court
Sh. Naresh Kumar vs Smt. Renu on 3 November, 2018
IN THE COURT OF SH. SANJEEV KUMAR MALHOTRA:
ADDITIONAL SESSIONS JUDGE; FTC : E COURT: SHAHDARA:
KARKARDOOMA COURT: DELHI.
CA No. 14/18
ID C.A No. 55/2018
1. Sh. Naresh Kumar
S/o. Late Sh. Narain Singh
R/o. H.No. B6/237, Nand Nagri,
Delhi.
..............Appellant
Versus
1. Smt. Renu
D/o Sh. Raj Kumar
R/o H.No. A3/164, Sector5,
Rohini, Delhi110085.
Presently Residing at
H.No. B6/237, Nand Nagri,
Delhi.
............Respondent
Date of Institution : 31.03.2018
Date of Arguments : 11.10.2018
Date of Judgment : 03.11.2018
JUDGMENT
CA No. 55/2018 Page 1 of 6 Naresh Kumar Vs. Smt. Renu
1. This is an appeal u/s. 29 of the Protection of Woman from Domestic Violence Act, 2005, as filed on behalf of appellant challenging the order dt. 06.03.2018, passed by Ms. Vidhi Gupta Anand, Ld. MM, Mahila Court, Shahdara, KKD Courts, Delhi, in complaint case No. DV 584/2017 titled as " Renu Vs. Naresh & Ors., whereby an application u/s. 112 of Indian Evidence Act seeking direction for conducting DNA test to ascertain the paternity of minor male children born during subsistence of wedlock namely Master Aman and Master Akshay Kumar, was dismissed.
2. Arguments have been advanced by Sh. Vikas Kumar, Ld. Counsel for appellant as also by Sh. Sahil Mahajan, Ld. Counsel for respondent.
3. Ld. Counsel for appellant has argued that there was no physical access and cohabitation between appellant and respondent at the relevant time when both male children were conceived and these minor children are result of living by the respondent under adultery. Ld. Counsel for appellant further argued that appellant is fifth husband of the respondent and she has filed a case against her previous husband also. Ld. Counsel for appellant further argued that direction for conducting DNA test to ascertain the paternity of both minor male children is necessary for fair and proper adjudication. Ld. Counsel for appellant has drawn my attention in respect of authorities reported as Dalip Singh & CA No. 55/2018 Page 2 of 6 Naresh Kumar Vs. Smt. Renu Ors. Vs. Ramesh S/o. Dalip Singh, 2017 (3) Civil Court Cases 700 (Rajasthan); Kamti Devi Vs. Poshi Ram, AIR 2001 (SC) 2226; B.P.Jena Vs. Convenor Secretary, Orissa State Commission for Women, 2010 SC 2851 & Nand Lal Wasudeo Badwaik Vs. Lata Nand Lal Badwaik & Anr., (2014) 2 Supreme Court Cases 576.
4. Per contra, Ld. Counsel for respondent argued that appellant has filed the application for conducting DNA test only to harass the respondent and to delay the award of interim maintenance by Ld. Trial Court. It has been further submitted that appellant has filed the application u/s. 112 of Indian Evidence Act to ascertain the paternity after 10 years of the marriage. Ld. Counsel for respondent vehemently argued that on one side appellant is denying the paternity of the minor children and on the other side he also filed an application for providing the custody of the minor children before Sh. Ashwani Kumar Sarpal, Ld. Family Judge in Guardianship Case No. 2/17. It has been further submitted that the marriage of appellant with respondent is also his third marriage.
5. Appellant has challenged the impugned order mainly on the grounds that appellant is not the father of the minor children; that respondent has also withdrawn maintenance petition u/s. 125 Cr.PC vide order dt. 21.11.15 from the Court of Ms. Bimla Kumari Ld Principal Judge, Family Courts, Delhi; that appellant wants to get the DNA Test CA No. 55/2018 Page 3 of 6 Naresh Kumar Vs. Smt. Renu conducted in order to ascertain the paternity with respect to the minor male children; that Domestic Incident Report has not been filed by Protection Officer before the trial Court hence the proceedings held by Ld. Trial Court are not according to due process of law; and that Ld Trial Court has not considered the provision of law and relevant findings of Hon'ble Supreme Court of India with respect to conducting of DNA Test as held in the case titled as " Nand Lal Wasudeo Badwaik Vs. Lata Nand Lal Badwaik & Anr" as well as in another case titled as " Kamti Devi Vs. Poshi Ram" reported at AIR 2001 (SC) 2226.
6. In the case titled as "Goutam Kundu, (AIR 1993 SC 2295:
1993 AIR SCW 2325) Hon'ble Supreme Court has observed as under: "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 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 irrebutable. This CA No. 55/2018 Page 4 of 6 Naresh Kumar Vs. Smt. Renu 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 favour of the innocent child from 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 nonaccess as delineated above."
7. In another authority reported as B.P.Jena Vs. Convenor Secretary (Supra), it was emphasized that DNA test is not to be directed as a matter of routine and only in deserving cases such a direction can be given. 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.
8. Admittedly, marriage of appellant with the respondent was solemnized on 09.11.2008 and two male children namely Aman and Akshay Kumar were born on 28.09.2009 and 19.05.2012. A criminal case u/s. 498A IPC is also pending against the appellant on the complaint of respondent. It is a basic rule that the child born in the CA No. 55/2018 Page 5 of 6 Naresh Kumar Vs. Smt. Renu wedlock should be treated as the child of the man who was then the husband of its mother. Its only exception if when the husband proves that he had no access to his wife at the time of conception of the child. Appellant filed the application u/s. 112 of Indian Evidence Act for conducting DNA test before Ld. Trial Court when the respondent claimed maintenance and other reliefs under the DV Act. Perusal of impugned order shows that interim maintenance has not been awarded so far and appellant admittedly, has not filed any such application for last 10 years of his marriage with respondent. The plea of the appellant that he had no access to the respondent at the time of conception of the minor male children can be proved by him at appropriate stage before Ld. Trial Court. The fact that appellant also filed a petition for custody of both minor children prima facie, goes against the plea of appellant denying the paternity of both minor children. It is also not in dispute that both the children were born during the subsistence of marriage between the parties, therefore, I do not find any material irregularity or illegality in the impugned order. Accordingly, appeal stands dismissed. A copy of this order be sent to Ld. Trial Court. Appeal file be consigned to record room. SANJEEV KUMAR MALHOTRA Digitally signed by SANJEEV KUMAR MALHOTRA Location: Karkardooma Courts, Delhi Date: 2018.11.03 Announced in the open court 15:55:07 +0530 on 03.11.2018 (Sanjeev Kumar Malhotra) ASJ/FTC/ECOURT Shahdara/KKD/Delhi CA No. 55/2018 Page 6 of 6 Naresh Kumar Vs. Smt. Renu