Back
2018 Supreme(Mad) 4441
IN THE HIGH COURT OF JUDICATURE AT MADRAS
M.S. RAMESH, J.
Selvaraj – Petitioner
Versus
Dhatchayani – Respondent
CRP.(PD).No. 3862 of 2018 & CMP No. 21512 of 2018
Decided On : 30-11-2018
For the Petitioner:K.S.V. Prasad, Advocate.
Headnote:
Indian Evidence Act - Section 112 - Constitution of India - Article 227 - Indian Succession Act - Section 112 - Challenge in present Revision is rejection - Trial Court - Seeks for divorce by placing reliance - Trial Court had rejected petitioner’s application in filed under Section 112 of Indian Evidence Act on ground that uncorroborated testimony of petitioner alone is not sufficient to hold that petitioner had no occasion to have intimacy with his wife during relevant period of time - Observing so trial Court had rejected petitioner’s application – Before analyzing applicability of decision cited by counsel for petitioner it would be appropriate to have a glance at Section 112 of Indian Evidence Act 1872 – Held, Reliance placed on police complaint also contradicts petitioner’s own statements on period of desertion at which point of time respondent could have begotten child – Furthermore complaint was not produced before trial Court - As such Court not inclined to accept that petitioner had presented a prima facie case before trial Court - In Judgment of Humble Apex Court cited by petitioner herein reliance was also placed on another Judgment of Humble Apex Court wherein Humble Apex Court while discussing ratio laid down in two other Judgments reported had held that Court cannot order blood test as a matter of fact and such a prayer cannot be granted to have a roving enquiry - It further held that there must be a direct prima facie case and Courts must carefully examine consequence of ordering blood test - In both decisions of Humble Apex Court Courts were conscious of fact that an innocent child should not be and that order for DNA Test should be sparingly exercised - In instant case petitioner not only intends to chastise a woman but also seeks to an innocent child for sake of obtaining divorce on ground of infidelity - Apart from petitioner’s own averments there were no sufficient materials before trial Court to come to a prima facie conclusion that parties were not living with each other at relevant point of time and hence it cannot be said that trial Court had erred in rejecting application under Section 112 of Indian Evidence Act – Petition dismissed
JUDGMENT :
(Prayer: Civil Revision Petition filed under Article 227 of the Constitution of India praying to allow the CRP setting aside the order of the Learned Subordinate Judge, Ponneri in I.A.No.20 of 2013 in H.M.O.PNo.46 of 2009 and dated 06.06.2017 and order the DNA test of the child said to have been begotten by the Respondent.)
1. The order under challenge in the present Revision is rejection of the petitioner’s application under Section 112 of the Indian Evidence Act rejecting his request to subject the child and the respondent herein to a DNA test. The main ground raised by the petitioner is that though he had clearly stated in his main petition for divorce filed on the ground of infidelity that the respondent herein had left the matrimonial house on 22.11.2005 and had reconciled with him on 16.04.2007 only, she had declared that she was pregnant and as such the impregnation was not through the petitioner herein. Hence, he alleges infidelity on the part of the respondent and thereby seeks for divorce by placing reliance on the date of desertion mentioned in the petition as well as the date in the police complaint lodged by the respondent herein dated 16.10.2009 wherein she had stated that she had left the matrimonial house after three months. The learned counsel would submit that the child born to the respondent herein was not through the petitioner and therefore, he had filed this application under Section 112 of Indian Evidence Act. In support of his contention, he also relied upon the judgment of the Hon’ble Apex Court (Nandlal Wasudeo Badwaik Vs. Lata Nandlal Badwaik & Another), (Dipanwita Roy Vs. Ronobroto Roy) as well as a decision of this Court (T.Nagaraj Vs. Sumathi).
2. The trial Court had rejected the petitioner’s application in I.A.No.20 of 2013 filed under Section 112 of Indian Evidence Act on the ground that the uncorroborated testimony of the petitioner alone is not sufficient to hold that the petitioner had no occasion to have intimacy with his wife during the relevant period of time. Observing so, the trial Court had rejected the petitioner’s application. Before, analysing the applicability of the decision cited by the learned counsel for the petitioner, it would be appropriate to have a glance at Section 112 of the Indian Evidence Act 1872. The section reads as follows:
“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 its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate 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.”
Conclusive proof of legitimacy as contemplated under Section 112 of Indian Succession Act would arise unless it is shown that the parties to the marriage they had no access to each other at any time, when he could have begotten such a child.
3. In this background, it would be pertinent to look into the facts revealed to the trial Court by the petitioner herein. It is the case of the petitioner that his wife left the matrimonial house on 22.11.2005 and returned on 16.04.2007 between which time, she had became pregnant. These dates are reiterated in the affidavit filed in support of the application in I.A.No 20 of 2013. The petitioner herein, in order to establish a prima facie case also relies upon police complaint dated 16.10.2009 alleged to have been given by the respondent herein and a copy of this petition is produced before this Court.
4. The arguments of the learned counsel for the petitioner is to the effect that since the complaint evidences that she had left matrimonial house on 06.06.2004, it is a prima facie proof that she has admitted that she was not living or residing with the petitioner herein from atleast 9th month of 2004 and therefore, the pregnancy would not have been at
