The petitioner is the wife of the respondent. Their marriage was solemnized on 09.07.1995 at Trichy. Heartburns arose between them, broke their nuptial life. On 06.05.1997, a female child was born and named as Vyshali. The love lost between them, culminated in filing of F.C.O.P.No.1981 of 2005 by the respondent on the file of the Principal Family Court, Chennai, for dissolution of marriage. A male child was born on 28.08.2004 and this respondent disclaims paternity of the child. The petitioner filed her counter. Matter came up for enquiry and presently, it is in part-heard stage. The respondent filed I.A.No.2246 of 2007 under Section 10 of the Family Court Act, 1984 r/w. Order 26 Rule 10A CPC., praying the Court to pass appropriate orders for DNA test to be conducted on the male child born on 28.08.2004.
2. In the affidavit, the respondent has stated that after few years of marriage life, the petitioner used to demand money for promoting her father's business and that petitioner's father also instigated her to make such demand. He borrowed nearly Rs.4 lakhs and gave it to the petitioner's father to set right his financial crisis and even afterwards, they instigated and compelled him to organise finance, for which, he expressed his inability and hence, the petitioner started quarreling with him everyday and the same became routine affair and in time course, they stopped falling with each other and they were sleeping in separate rooms.
2(ii). The respondent has further stated that there was no physical relationship between both the parties from the month of May' 2003 onwards and even thereafter, no cohabitation had taken place between them; that at the time when his mother was seriously ill, he had gone to Salem often to look after his mother and spent considerable time for providing medication, however, she died in the month of March 2004; that by the end of the year 2003, due to constant problems and misunderstandings in the matter of money, the petitioner left the matrimonial home, went to her parents' house and stayed with her parents for nearly about three months and returned back at the end of the third month; and that she pleaded and requested that she would mend her ways and in view of the daughter's welfare, he accepted her request and within three days, she told him that she was pregnant, which was a great shock to him.
2(iii). In the affidavit, it is further stated that the respondent was having no physical intimacy with the petitioner from the month of May' 2003 onwards till that date. While so, she delivered a male child on 28.08.2004 and that the same is illegitimate child which was born through some other person. Therefore, he filed a petition for custody of his daughter, Vaishali in O.P.No.2111 of 2005 on the file of the Principal Family Court, Chennai on the ground that the petitioner was leading an adulterous life, and therefore, it has become essential to establish the paternity of the male child, since the same is the subject matter of both the petitions filed by this respondent and if the DNA test is not ordered, he will be put to irreparable loss and mental agony and hence, DNA test may be directed to be conducted on the male child born on 28.08.2004 and the respondent.
3. In the counter filed by the petitioner, inter alia it is alleged that the petition under the provisions mentioned therein is neither maintainable in law nor facts; that allegations are per se defamatory and were invented by the respondent to cover up his mis-deeds and adultery; that the respondent had caused untold cruelty and mental agony to her two children and herself; that the respondent is not living in adulterous life; that the respondent was having illicit intimacy with one Uma Maheswari, wife of Krishnan and leading an immoral life with her; that she also came to know that he is having illicit intimacy with various women; that scrutiny of the oral evidence adduced by the respondent before the trial Court would show that he had illegal connection with the said Uma Maheswari; and that said Uma Maheswari's husband filed O.P.NO.133 of 2004 before the Sub Court, Vellore, arraying the respondent as second respondent and divorce was granted in favour of the said Uma Maheswari.
3(ii). The petitioner has further stated that the respondent's father is running a clinic, by name, Sathosh Infertility Centre at Salem; that she was taken to the said Clinic and artificial insemination was performed by the respondent; that both of them lived separately upto 16.09.2005 and in the notice (Ex.P4) only, he has stated that the second child was not born to him; that conducting DNA test on the male child is not warranted; and that by abusing his financial position, he created medical records under the head DNA ID Check Test Results and filed Xerox copy before the Court, while filing the Original Petition. The respondent lived with two children and herself till the first birthday of the second child, i.e., 28.08.2005 and celebrated the birthday with full pleasure and joy. If anything wrong was done to her, during the course of artificial insemination, the respondent and his family members were solely responsible for the illegal acts. Subjecting a tender year child, aged three years, for DNA test is inhuman and it would show the respondent's sadist approach to continue his lust with the said Uma Maheswari. Hence, she prayed that the petition may be dismissed, as it is frivolous and vexatious.
4. Learned Principal Judge, Family Court, Chennai, allowed the application, ordering DNA test and directing the respondent to bear the expenses for such examination. It was observed that it has become necessary to order for DNA test and taking the blood sample for the test is not against law.
5. Learned Senior Counsel for the petitioner, Mr.S.Parthasarathy, would contend in vehemence that under
Section 112 of the Indian Evidence Act, 1872, the Court should presume the birth of a child, during the wedlock, as legitimate one; that such presumption has to be rebutted only by means of adducing any evidence with convincing materials and it is not open to the respondent to pray the Court to direct for DNA test; that no individual could be compelled to give blood samples even for medical examination and it is incumbent upon him to prove, "non-access"; that it is the fishing expectation; that in the course of artificial insemination conducted on the petitioner, there might have been a foul play on the part of the respondent and that the settled positions have put a legal embargo on the Courts to order DNA test in a routine manner.
6. Arguing on the other side of the coin, Mr.A.Natarajan, learned Senior Counsel for the respondent, would contend that there was no necessity for having artificial insemination as pleaded by the petitioner and that portion is not supported with any materials; that while there has been no problems as to reputation of both the parties, that is to say, there is no defect in both of them, no necessity would have arisen for artificial insemination; that there is no question of inference under
Section 112 of the Indian Evidence Act; that the father of the respondent is running a Sidha Clinic in Salem, but he is not a Doctor and there is no system nor procedure is available in Sidha medicine for artificial insemination and that legal principles are in favour of a person, who seeks for DNA test.
7. Both the parties would consistently placing their respective contentions as to access and non-access respectively, for which, Matrimonial Court has to exercise its wisdom to come out with clear findings, after appreciation of the oral and documentary piece of evidence on record. It is not for this Court to enter into that arena and find out whether there was access between the parties during relevant period of time. Bounden duty casts upon the Court to follow the legal principles and ratio laid down by the Supreme Court on this subject and to appropriately direct the parties to perform their legal obligation. It is the primary duty of the Court to see that the truth is unfolded. Prime concern of the Court is to see whether directing an individual to undergo DNA test is lawful and it would affect his right of privacy and the right of personal liberty under
Article 21 of the Constitution of India is violated.
8. To begin with, it is profitable to extract
Section 112 of the Indian Evidence Act for better understanding of the matter in issue.
"112. Birth during marriage, conclusive proof of legitimacy:- The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after his dissolution, them other remaining unmarried, shall be conclusive proof that he is the legimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten."
9. Unless the contrary is proved, it has to be presumed that the child born during the lawful wedlock is legitimate and that the access occurred between the parents. This presumption can be displaced only by strong preponderance of evidence and not by a mere balance of probabilities.
10. Learned Senior Counsel for the petitioner, in support of his contention, garnered support from the decision of the Supreme Court in Goutam Kundu v. State of West Bengal reported in AIR 1993 SC 2295, which was the authority on the point till it was modified by the Full Bench decision of the Supreme Court in Sharda v. Dharmpal reported in 2003 (2) CTC 760. In Goutam Kundu's case, Their Lordships, after analysing the medical jurisprudence on this point and referring to the decisions of various High Courts, laid down following principles to be adhered to by the Courts in the matter of issuing directions for DNA test and they are as follows:
"(1) 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."
11. The said decision was referred to in the subsequent decision of the Apex Court in Banarsi Dass v. Teeku Dutta reported in 2005 (4) SCC 449, wherein, it is held that if it is observed that DNA test was conclusive, it is not the correct view; that it is for the parties to adduce evidence in support of their claims and establish their stands; that DNA test is not to be directed as a routine and such direction be given only in deserving cases.
12. While discussing about the scope of
Section 112 of the Indian Evidence Act, the Supreme Court in the above reported case, has held thus, "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 nuptial demonstrate (he is the father whom the marriage indicates). The presumption of legitimacy is this, that a child born of a married women 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 of filiation (parentage) may be presumed, the law in general presuming against vice and immorality."
13. The Supreme Court in Banarsi Dass's case, has also referred to a decision reported in 2003 (10) SCC 228 [Amarjit Kaur v. Harbhajan Singh], in which, it was held that eventhough the DNA test is said to be scientifically accurate, even that it is not enough to escape from the conclusiveness of
Section 112 of the Evidence Act, for example, 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 and that 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; and that 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.
14. Goutam Kundu's case has been followed by this Court in two decisions cited before this Court. One in Venkatachalam v. Anandha Jothi @ Rasathi reported in 1997 (II) CTC 763 and another in Minor Shanmugam v. Karuppiah @ Karuppannan reported in 1998(1) MLJ 454. In both the cases, it has been held that compelling minor to give sample of his blood for analysis, is absolutely illegal and not permissible in law and the same is without jurisdiction. Paternity could be proved only at the time of trial after examination of witnesses, on perusal of the documents filed by the parties and the evidence deposed by the witnesses.
15. Identical view has been echoed by the Bombay High Court also in Sunil Eknath Trambake v. Leelavati Sunil Tambake reported in AIR 2006 Bombay 140, wherein, it is held that DNA test can be ordered only in exceptional and deserving cases, and even it is in the interest of the child and it cannot be directed as matter of routine and the Court, while ordering DNA test, has to record its reasons in writing. It is also observed that Courts should record reasons as to how and why such test is necessary to resolve the controversy and is indispensable cases and that result of such test being negative will have an effect of branding a child as a bastard and the mother as an unchaste women, which may also adversely affect the child psychologically and that the Courts have however should not hesitate to direct DNA test, if it is in the best interest of a child.
16. The learned Senior Counsel for the respondent would place reliance upon a decision of this Court in Bommi v. Munirathinam reported in 2004 (5) CTC 182, in which, the learned Judge has referred to various judgment of the Supreme Court and reached the conclusion that the Court is within its power to direct the party to undergo DNA test, in order to ascertain the fatherhood of the child, which would unfold the truth and it would also for the benefit of the minor child, following the Full Bench decision of the Supreme Court. The Full bench of the Supreme Court has taken a different view from the one in Gautum Kundu's case, in its latter decision reported in Sharda v. Dharmpal reported in 2003 (2) CTC 760.
17. In the said decision, the Apex Court also referred to Gautum Kundu's case and expressed a converse opinion in the matter of directing the blood test and concluded that such directions should normally be made in the better future of the child. The relevant portion is as follows:
"36. Gautum Kundu, (supra), is, therefore, not an authority for the proposition that under no circumstances the Court can direct that blood tests be conducted. It having regard to the future of the child, has, of course, sounded a note of caution as regard mechanical passing of such order. In some other jurisdictions, it has been held that such directions should ordinarily be made if it is in the interest of the child."
18. In the above reported judgment, Their Lordships, have elaborately dealt with the subject, after referring to various earlier decisions of the Supreme Court and other High Courts and also the English Law as well on the subject, besides medical jurisprudence on the point, touching the ambit of the intention of the legislature, while enacting
Article 21 of the Constitution of India as to the personal liberty and the right of privacy of a person and formulated following principles as follows:
"75. So viewed, the implicit power of a Court to direct medical examination of a party to a matrimonial litigation in a case of this nature cannot be held to be violative of one's right of privacy.
To sum up, our conclusions are:
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."
19. Their Lordships also strike a note of caution about the legal consequences of refusal to submit oneself for such medical examination in the following terms:
"If despite an order passed by the Court, a person refuse to submit himself to such medical examination, a strong case for drawing an adverse inference would be made out. S.114 of the Indian Evidence Act also enables a Court to draw an adverse inference if the party does not produce the relevant evidence in his power and possession."
20. Learned Senior Counsel for the respondent also cited the Division Bench decision of this Court in Jothi Ammal v. K.Anjan reported in I (2007) DMC 756 (DB), in which, a decision of the Supreme Court in Kanti Devi v. Poshi Ram reported in 2001 (5) SCC 311, has been referred and followed, in which, it is held that the expression "access" used in
Section 112 of the Indian Evidence Act had been held by courts as "opportunities to reach" and that therefore, the court must have materials to come to the conclusion that during the period when wife conceived, husband had opportunities to approach her or vice-versa and only in this context, it is stressed on the need for definite pleading and proof from either side and if it is shown that the parties had no access to each other at the time when the child could have been begotten, as held by the Supreme Court in Kanti Devi's case referred to above, the presumption under
Section 112 of the Indian Evidence Act stands rebutted.
21. Law on this subject has been set at rest by the above said Full Bench decision of the Hon'ble Supreme Court and there is no legal embargo for the Courts to direct the medical examination by the DNA test, while circumstances warant. Presumption under
Section 112 of the Indian Evidence Act requires to be rebutted by a strong piece of material evidence, which could be obtained from the outcome of the DNA test. The burden of proof is on the respondent, who alleges illegal legitimacy. He has to establish the fact which requires positive proof of negative plea that he has not fathered the second child. This Court is of the considered view that circumstances necessitate issuing of directions for DNA test. Ordering DNA test would not in any way violative of
Article 21 of the Constitution of India nor prejudice the individual of his right of privacy and the legal consequences of refusal to submit oneself for such examination would entail drawing of the adverse interference against that person.
22. Following the ratio laid down by the Supreme Court, it is held that a direction for DNA test as prayed for is inevitable and it is ordered accordingly. In such view of this matter, this Court does not find any infirmity either legally or factually in the order passed by the Court below. The order challenged before this Court deserves to be confirmed and accordingly confirmed. The Civil Revision Petition is devoid of merits and it suffers dismissal.
23. In fine, the Civil Revision Petition is dismissed. No costs. Consequently, connected Miscellaneous Petition is closed.
skm To The Principal Family Court, Chennai