JUDGMENT :

Vivek Agarwal, J.

1. None for the petitioner even when the list is revised. Sri Vijay Bahadur Shivhare, learned counsel for the respondent is present.

2. This petition under Article 227 of the Constitution of India has been filed challenging order dated 22.9.2018 passed by learned Additional Principal Judge, Family Court/F.T.C. IInd, Hamirpur in Case No. 104 of 2015, Ram Asrey v. Smt. Neelam under Section 13 of the Hindu Marriage Act, 1955.

3. The only issue which has been canvassed as appears from order dated 21.10.2019 is that whether a Court in a divorce petition under Section 13 of the Hindu Marriage Act, 1955 filed by the husband on the ground of adultery can direct that the wife, either to undergo a D.N.A. test or refuse to undergo a D.N.A. test, but in case she elects to undergo a D.N.A. test, then findings of the D.N.A. test will determine conclusively the veracity of accusation leveled by the petitioner-husband against her. It is further mentioned that in case, wife refuses to undergo a D.N.A. test, then whether a presumption can be drawn by the Court against the wife that is to say whether report of D.N.A. test is just a piece of expert evidence or a conclusive or a substantive piece of evidence.

4. After going through the record and hearing learned counsel for the respondent certain facts needs to be enumerated as have been alleged in the divorce petition filed by the husband under Section 13 of the Hindu Marriage Act. They are; marriage between the petitioner and the respondent took place on 28.4.2004. Admittedly, three daughters are born from this wedlock.

5. According to the husband-respondent, he is not living with his wife i.e. the petitioner since 15.1.2013 and there has been no resumption of cohabitation since then. On 25.6.2014, husband had given customary divorce to the petitioner and is paying maintenance to her since then. A male child was born to the petitioner on 26.1.2016 in her paternal house.

6. The ground for divorce is adultery.

7. On the other hand, the present petitioner filed her objections 28-C(2), and objected to the application filed by the husband seeking D.N.A. Test on the ground that no legal provision is mentioned in the application. She denied that there has been no co-habitation between the parties since 15.1.2013. She claimed that when she was pregnant then she was tortured by her husband and was driven out of the matrimonial home, therefore, she gave birth to a male child on 26.1.2016. Plea of presumption under Section 112 of the Evidence Act too has been raised by the present petitioner.

8. Learned family Court has placed reliance on the judgment of Supreme Court in case of Dipanwita Roy v. Ronobroto Roy, 2015 (1) SCC D 39 (SC), wherein husband had filed divorce petition on the ground of adultery. The adulterer was named and then husband had moved an application for D.N.A. Test of himself and male child born to the wife. Family Court had dismissed the application. High Court reversed the orders of the family Court. Supreme Court upheld the order of the High Court despite the pleading of the wife that husband had access to her, whereas the husband had denied the same categorically.

9. Reliance has also placed on the judgment of Supreme Court in case of Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik and another, 2014 (2) SCC 576, wherein, Supreme Court observed as under:

15. Here, in the present case, the wife had pleaded that the husband had access to her and, in fact, the child was born in the said wedlock, but the husband had specifically pleaded that after his wife left the matrimonial home, she did not return and thereafter, he had no access to her. The wife has admitted that she had left the matrimonial home but again joined her husband. Unfortunately, none of the Courts below have given any finding with regard to this plea of the husband that he had or had not any access to his wife at the time when the child could have been begotten.