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2019 Supreme(Mad) 1451
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
G.R. SWAMINATHAN, J.
G. Vasanthi - Appellant
Versus
Muneeshwaran - Respondent
C.R.P. PD (MD) No. 2181 of 2018 and C.M.P. (MD) No. 9723 of 2018
Decided On : 02-01-2019
Advocate Appeared:
For the Appellant :D. Gunasekaran, Advocate
For the Respondents: S. Srinivasa Raghavan, Amicus Curiae
Headnote:
Indian Evidence Act,1872 - Section 4,13(1)(i)(a),112 - Constitution of India,1950 - Article 21 - Seeking divorce - cruelty - Subjecting petitioner to undergo DNA test for testing paternity of child - A girl child was born to petitioner - Complaining that petitioner had treated him with cruelty respondent filed H.M.O.P on file of Principal Sub Court Dindigul seeking dissolution of his marriage with petitioner - Respondent filed LA for subjecting petitioner herein to undergo DNA test for testing paternity of child - According to averments set out in petition petitioner herein herself had denied that respondent was father of child born to her - Court below allowed said Interlocutory Application vide order - Questioning same this Civil Revision Petition has been filed - Whether allegation made by one spouse against other spouse seeking divorce on such a ground is correct or not - Whether DNA test would be sufficient to hold that appellant is not biological father of respondent in face of what has been provided under Section 112 of Evidence Act - Held, Section 112 of Indian Evidence Act reads as under - Birth during marriage conclusive proof of legitimacy fact that any person was born during continuance of a valid marriage between his mother and man or within two hundred and eighty days after its dissolution mother remaining unmarried shall be conclusive proof that he is legitimate son of that man unless it can be shown that parties to parties to marriage had no access to each other at any time when he could have been begotten - Court may remember that Section 112 of Evidence Act was enacted at a time when modern scientific advancement and DNA test were not even in contemplation of Legislature - Result of DNA test is said to be scientifically accurate - Although Section 112 raises a presumption of conclusive proof on satisfaction of conditions enumerated therein but same is rebuttable - Presumption may afford legitimate means of arriving at an affirmative legal conclusion - While truth or fact is known in Court opinion there is no need or room for any presumption - Where there is evidence to contrary presumption is rebuttable and must yield to proof - Interest of justice is best served by ascertaining truth and court should be furnished with best available science and may not be left to bank upon presumptions unless science has no answer to facts in issue - In Court opinion when there is a conflict between a conclusive proof envisaged under law and a proof based on scientific advancement accepted by world community to be correct latter must prevail over former - Court drew attention of Attorney General to concession made before High Court who appeared for State of Maharashtra before High Court and led arguments for respondents there and who appeared for before us intervened and protested that he never made any such concession and invited us to peruse written submissions made by him in High Court - Court are afraid that Court cannot launch into an inquiry as to what transpired in High Court - It is simply not done - Public Policy bars us Judicial decorum restrains us Matters of judicial record are unquestionable - They are not open to doubt - Judges cannot be dragged into arena - Judgments cannot be treated as mere counters in game of litigation - Per Lord Atkinson in Court are bound to accept statement of Judges recorded in their judgment as to what transpired in court - Court cannot allow statement of judges to be contradicted by statements at Bar or by affidavit and other evidence - If judges say in their judgment that something was done said or admitted before them that has to be last word on subject - Principle is well settled that statements of fact as to what transpired at hearing recorded in judgment of court are conclusive of facts so stated and no one can contradict such statements by affidavit or other evidence - If a party thinks that happenings in court have been wrongly recorded in a judgment it is incumbent upon party while matter is still fresh in minds of judges to call attention of very judges who have made record to fact that statement made with regard to his conduct was a statement that had been made in error - Per Lord Buck master in That is only way to have record corrected - If no such step is taken matter must necessarily end there - Of course a party may resile and an Appellate Court may permit him in rare and appropriate cases to resile from a concession on ground that concession was made on a wrong appreciation of law and had led to gross injustice but he may not call in question very fact of making concession as recorded in judgment - Civil Revision Petition Dismissed
ORDER :
G.R. Swaminathan, J.
1. The petitioner and the respondent got married to each other on 12.03.2014 at Batla-gundu. A girl child was born to the petitioner on 22.01.2015. Complaining that the petitioner had treated him with cruelty, the respondent filed H.M.O.P. No. 138 of 2015, on the file of the Principal Sub Court, Dindigul, seeking dissolution of his marriage with the petitioner. The respondent filed LA. No. 5 of 2017, for subjecting the petitioner herein to undergo DNA test for testing the paternity of the child. According to the averments set out in the petition, the petitioner herein herself had denied that the respondent was the father of the child born to her. The Court below allowed the said Interlocutory Application vide order dated 26.04.2018. Questioning the same, this Civil Revision Petition has been filed.
2. Heard the learned Counsel appearing for the revision petitioner.
3. Since the revision petitioner had anchored her case on the strength of the decision of the Kerala High Court, rendered in Mathew v. Annamma Mathew on 17.11.1993 and that of the Hon'ble Supreme Court rendered in Goutam Kundu v. State of West Bengal, AIR 1993 SC 2295 : (1993) 3 SCC 418 : LNIND 1993 SC 469, this Court appointed Thiru. Srinivasa Raghavan as amicus curiae, to place before this Court, the subsequent march of law. The amicus curiae filed detailed written notes, exhaustively setting out the latest position. I place on record my gratitude to the learned amicus curiae.
4. The contention of the revision petitioner is that the Court below could not have directed the revision petitioner/wife to undergo DNA test, since the respondent/husband has himself accepted that he had physical contact with the revision petitioner herein on two occasions. The respondent husband had taken part in the Valaikappu function and only after the birth of the child, he developed suspicion.
5. The learned Counsel for the revision petitioner pointed out that the H.M.O.P. had been filed only under Section 13(1)(i)(a). The respondent had not alleged any adulterous conduct on the part of the revision petitioner. The petitioner's Counsel also placed considerable reliance on Section 112 of the Indian Evidence Act, 1872 and contended that since access had been admitted, the impugned order directing the petitioner to undergo DNA test will have to be set aside.
6. The initial contention of the revision petitioner's Counsel was that directing the wife to undergo DNA test when there is no pleading of non-access would run counter to Section 112 of the Indian Evidence Act and also be violative of the fundamental right of the wife guaranteed under Article 21 of the Constitution of India.
7. The contention with regard to violation of fundamental right cannot hold good in view of the decision of the Hon'ble Supreme Court in Sharda v. Dharmpal, AIR 2003 SC 3450 : (2003) 4 SCC 493 : LNIND 2003 SC 366. The Hon'ble Supreme Court observed that where divorce is sought on grounds such as impotency, schizophrenia etc., normally without there being medical examination, it would be difficult to arrive at a conclusion as to whether the allegation made by one spouse against the other spouse seeking divorce on such a ground is correct or not. In order to substantiate such allegation, the petitioner would always insist on medical examination. If the respondent avoids such medical examination on the ground that it violates his/her right to privacy or for that matter to personal liberty as enshrined under Article 21 of the Constitution of India, then it may, in most of such cases become impossible to arrive at a conclusion. If the Court passes an appropriate order for medical examination, the question of such action being violative of Article 21 of the Constitution of India would not arise. The conclusions of the three Judges Bench was summed up as follows:
“81. 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 o
