The judgment underscores the importance of strong evidence in cases of adultery and the limitations on ordering DNA tests without sufficient grounds.

Pratibha Rani, J.

1. The appellant/wife is aggrieved by the decree of dissolution of her marriage with the respondent/husband on the ground of cruelty. The divorce petition was filed by the respondent/husband on the allegation that the appellant/wife was living in adultery and he is not biological father of all the three children born out of the wedlock.

2. Section 13 of Hindu Marriage Act provides grounds on which marriage can be dissolved by a decree of divorce. Relevant provisions for us for the purpose of disposal of this appeal are Section 13(1)(i) and Section 13(1)(ia) which read as under:-

‘13. Divorce – (1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party –

1(i) has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or

1(ia) has, after the solemnisation of the marriage, treated the petitioner with cruelty; or’

3. On September10, 2009, the respondent/husband filed a petition under Section 13(1)(ia) of the Hindu Marriage Act pleading that his marriage with the appellant/wife was solemnized on February 05, 2000 and at that time his status was of widower and the respondent/wife was virgin. The marriage was consummated and three children-one female and two male were born.

4. On June 05, 2009, his wife disclosed to him and his family that she had entered into illicit relationship with Rajesh, younger brother of the respondent/husband and that Rajesh is biological father of all the three children. She also claimed that her husband was impotent and this compelled her to develop physical relation with Rajesh.

5. When the above fact was revealed by his wife, he was shocked and depressed. He has broken marriage ties with his wife. He also informed the family of his wife about her conduct but instead of saying anything to her they assaulted him and his family. His wife did not spare even his father blaming him that (his father) wanted to keep her as his wife. This lowered the prestige of his family. Feeling humiliated, insulted and unsecure due to immoral conduct of his wife, which amounts to mental cruelty, he filed the petition for dissolution of marriage on account of cruelty.

6. Written statement was filed by the appellant/wife denying all the allegations of living in adultery or that her husband was not biological father of her three children. She, however, claimed the date of marriage to be January 29, 2001 and not February 05, 2000 as pleaded by her husband. She also pleaded that she had been residing in the same house and has not committed any act of adultery.

7. In the replication we find averment on page 3 to the following effect:-

‘It is submitted that after the disclosure of the respondent for illicit relationship and the children born out of the relationship with the younger brother, the petitioner was compelled to get the DNA test of the youngest child and finally the facts got strength when the younger brother Rajesh at the instance of the respondent was called by the counsellor Ms.Nidhi Jha in the Dwarka Court where the same admitted the illicit relationship and liabilities of the children born out of the relationship and gave an affidavit dated 4.3.2010 in support of accepting the illicit relationship with the respondent. Thus, the allegations of the petitioner have been confirmed by the DNA report as well as from the affidavit of said Rajesh and his admission before the counsellor, hence the petition is liable to be decreed.’

8. After filing the petition, without there being any order by any Court/Competent Authority, the DNA test has been got conducted by the respondent/husband on October 31, 2009 on his child aged about 3¼ years.

9. The learned Judge Family Court in the impugned judgment has relied on the testimony of PW-1 - the husband and PW-2 - his younger brother Rajesh to record