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2019 Supreme(Mad) 1506
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
G.R. SWAMINATHAN, J.
G. Vasanthi – Petitioner
Versus
M. Muneeshwaran – Respondent
C.R.P. PD [MD] No. 2181 of 2018 & C.M.P. [MD] No. 9723 of 2018
Decided On : 02-01-2019
For the Petitioner:D. Gunasekaran, Advocate.
For the Respondent: S. Srinivasa Raghavan, Amicus Curiae.
Headnote:
Indian Evidence Act - Section 112 - Constitution of India - Article 21 - Seeking dissolution of his marriage with petitioner - Making concession as recorded in judgment - Spouse seeking divorce - Since revision petitioner had anchored her case on strength of decision of Kerala High Court rendered in Mathew Vs. Mathew and that of Hobble Supreme Court rendered in this Court appointed as amicus curiae to place before this Court subsequent march of law - Amicus curiae filed detailed written notes exhaustively setting out latest position - Court place on record my gratitude to amicus curiae – Held, In present case revision petitioner/wife did not file any application before trial Judge disputing observation of trial Judge that she had consented to undergo DNA test - Court have to necessarily hold that this Civil Revision Petition itself is not maintainable - In result order impugned in Civil Revision Petition is sustained – But it is always open to revision petitioner/wife to disregard order passed by Court below requiring holding of DNA test - In that event allegation against her would be determined by concerned Court by drawing presumption of nature contemplated in Section 114 of Indian Evidence Act - In other words Court below will be justified in drawing adverse inference against revision petitioner - But then issue of infidelity alone would be determined - Presumption enshrined in Section 112 of Indian Evidence Act, will not in any way be disturbed - Neither result of DNA test nor adverse inference can lead to dislodging conclusive proof contemplated by Section 112 of Evidence Act, so long as it remains in current unlamented form - Rights of child shall remain insulated and protected - While character of mother may be exposed status of child shall remain unsullied in law - If results of DNA test deny paternity of child it shall not be published - Just as identity of a rape-victim and that of a juvenile in conflict with law is concealed similar protective measures shall be taken in such cases - If no such step is taken matter must necessarily end there - Of course a party may resale and an Appellate Court may permit him in rare and appropriate cases to resale 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 - Petition is closed
JUDGMENT :
(Prayer: Civil Revision Petition is filed under Article 227 of the Constitution of India, praying to set aside the fair and decretal order dated 26.04.2018 in I.A.No.5 of 2017 in H.M.O.P. No.138/2015, on file of the Principal Sub Court, Dindigul.)
1. The petitioner and the respondent got married to each other on 12.03.2014 at Batlagundu. 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 I.A.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 Vs. Annamma Mathew on 17.11.1993 and that of the Hon'ble Supreme Court rendered in Goutam Kundu Vs. State of West Bengal, reported in AIR (1993) SC 2295, 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 Vs. Dharmpal, reported in (2003) 4 SCC 493.
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
