Point of Law: Section 112 of Indian Evidence Act, which reads as birth during marriage, conclusive proof of legitimacy.

JUDGMENT :

Jyotsna Rewal Dua, J.

In the divorce proceedings pending between the petitioner (husband) and the respondent (wife) under Section 13(1)(ia) and (ib) of the Hindu Marriage Act, the husband moved an application for conducting Deoxyribonucleic Acid (DNA) test of the child and the parties. This application was dismissed by the learned District Judge (Family Court), Shimla, H.P. on 07.04.2022. The petitioner seeks to assail this order in the instant petition.

2. Relevant facts:-

2(i). In October, 2018, the petitioner instituted petition under Section 13(1)(ia) and (ib) of the Hindu Marriage Act against his wife (respondent). Decree of Divorce was prayed for on the grounds of cruelty and desertion.

2(ii). The husband pleaded that marriage between the parties was solemnized on 19.05.2015. After the marriage, the petitioner and respondent lived together as husband and wife. They consummated their marriage only once on 21.07.2015. The baby was born to the respondent (wife) within eight months, on 14.03.2016. After the birth of the child, the respondent had stayed for a period of 11 days at petitioner’s home and then demanded separate residence at Shimla. The husband further submitted in the petition that the respondent (wife) had herself told him about the child not belonging to him. Some relevant paras from the petition are as under:-

“4. That marriage of parties has been consummated once on 21st July 2015 and baby to the marriage was born on 14-03-2016 before eight months, therefore the Petitioner is requesting to the Ld Court for the DNA test of the parties, especially as the respondent herself had stated to the Petitioner that the child does not belong to the Petitioner.

5. That the Respondent had only stayed for the period of 11 days at Petitioner home after birth of baby and then demanded from the Petitioner separate flat at Shimla which was refused by the Petitioner as the Petitioner has old age parents to be taken care off and was not in a condition to purchase flat.

13. That the respondent was pregnant from some other men/stranger during the marriage with the petitioner and she had affair with someone else as she used to send text message to the Petitioner stating that “I Don’t like You”. The petitioner will produce the proof at the time of evidence.

14. That the situation had become so worse that once when he visited the house in Shimla there was one man whose name not known to petitioner was present inside the bedroom of the respondent and at that time the Respondent asked the Petitioner that why he had come to her house without any prior information, thereafter many times when Petitioner visited her house the same person/stranger was always present inside the house and when the Petitioner tried to ask to the respondent she used to say to the petitioner that you are not my husband and neither the child belongs to you. Thereafter the Petitioner did not go to the house in Shimla from past near about two years and they both are living separately.

15. That the respondent has deserted the petitioner without any reasonable and justifiable cause and rhyme and hence it has become impossible for the petitioner to live more in the company of the respondent therefore, the petitioner is entitled for a decree of divorce on the grounds of cruelties and desertion.”

2(iii). In her reply to the petition, the respondent, inter alia, denied the allegations of having ever stated to the petitioner about the child not belonging to him. She also denied that the parties did not cohabit as husband and wife.

2(iv). The petitioner (husband) moved an application under Section 45 of the Indian Evidence Act with the prayer to carry out DNA test of the child and the parties. The application was with the averment that the respondent (wife) had repeatedly informed the petitioner about the baby child not belonging to him. To determine the paternity of the child and to establish that the child did not belong to him, the DNA test of the child and parties was e