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2007(2) JLJ 280
Rajendra Menon, J.
Seema Sharma (Smt.) v. Amar Sharma
Writ Petition No.5544 of 2005 (Gwalior) : against the order of
Family Court, Gwalior passed in Case No.92-A HMA of 2005;
Decided on 21.2.2006.
Inter alia contending that the petitioner‘s wife is having illegal relations and the child born to her is not his child, respondent-husband has filed an application before the family Court at Gwalior and has sought a decree of divorce, so also, declaration to the effect that the child born to the petitioner on 21st December 1996 is not his child .... application under Order XXVI rule 10A CPC was filed making a prayer that the child in question be subjected to DNA test .... the application has been allowed by the impugned order. [Para 2
Held : According to the provisions of this section, a family Court shall have and can exercise all the jurisdiction exercisable by any district Court or any sub-ordinate civil Court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the explanation to the said section. Clause (e) to the explanation pertains to a suit or proceeding for a declaration as to the legitimacy of any person.
The provisions of clause (e) to the explanation has to be given a liberal interpretation and the restricted meaning as advanced by Shri S.B. Mishra, learned counsel cannot be applied. Accordingly, it has to be held that the legitimacy or otherwise of a child born to the parties in a proceeding before the family Court can be gone into by the family Court and for the said purpose, the family Court has jurisdiction.
It has to be held that the family Court does have jurisdiction to grant the declaratory relief claimed by the respondent No.1. AIR 2004 SC 3500, (2005)4 SCC 449, AIR 1993 SC 2295, 1993 CrLJ 1659 explained. 2004(1) MPWN 16 (SC) followed. [Paras 12, 15 & 16
(2) Evidence Act, 1872 -- Ss.45 and 112 -- legitimacy of child suspected -- DNA test may provide good evidence -- Court may order such test on reasons appearing in the case -- wife consented to DNA test during counseling -- reason is sound.
If the legitimacy of a child is suspected, DNA test may provide good evidence to show the biological connection of the child.
The learned family Court has found it proper to direct for DNA test and the reason that weighed in the mind of the Court to order such a DNA test were two-fold. First of all, the learned Court had taken note of the fact that the parties were living separately for more than ten months. Even though the Court has observed that this is a question of evidence to be decided but in the counseling which was held between the parties on 16th April, 2005, petitioner had given her consent for DNA test. It has been indicated by the learned Court that various order sheets of conciliation indicate that the application for DNA test was submitted by the husbandd`respondent only because it was agreed to by the petitioner at the time of conciliation but she is denying the same now in reply to the application.
In cases of disputed paternity of a child, mere comparison of DNA obtained from the body fluid or body tissues of a child with his father and mother can offer infallible evidence of biological parentage. AIR 1993 SC 2295 referred to. (2005) 1 DMC 636 relied on. [Paras 17, 18 & 19
(3) Evidence Act, 1872 -- S.45 -- Constitution of India -- Art.21 -- matrimonial Court -- has power to issue direction for medical test -- prima facie reason should be there in the case. (2003)4 SCC 493 followed. [Paras 20 & 21
(4) Civil P.C., 1908 -- S.151 -- no provisions contained in any other law for direction to give blood for medical test -- such direction may be given under inherent powers. 1995 CrLJ 4090 (Born.) relied on. [Para 22
(5) Evidence Act, 1872 -- Ss.45 and 112 -- there must be strong prima facie case to get over legal presumption under S.112 -- if direction to undergo medical test is not complied with, Court can draw adverse inference. 1995 CrLJ 4090 relied on. AIR 1993 SC 2295 followed. [Para 22
(6) Constitution of India -- Art.227 -- discretionary order allowing DNA test based on material on record and law pronounced by Supreme Court -- cannot be interfered with. [Para 22
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1. Challenge in this petition under Article 227 of the Constitution is made to a order dated 15th October, 2005, passed by the family Court, Gwalior in case No.92-A of 2005 (Hindu Marriage Act), Amar Sharma v. Smt. Seema Sharma directing for DNA test to find out the parentage of a child said to have been born to the petitioner, Smt. Seema Sharma.
2. Facts in brief necessary for deciding the present petition are that the petitioner, Smt. Seema Sharma and the respondent, Amar Sharma were married as per Hindu rites and custom at Gwalior on 25th January 1996. It is the case of the respondent husband that at the time of marriage, he was working in the office of the Madhya Pradesh Police Housing Corporation, Division Gwalior, and the petitioner wife was working as Naib Tehsildar in the District Headquarter, Gwalior. It is the case of the respondent-husband before the family Court that after three days of his marriage, it came to his knowledge that his wife was a lady with doubtful background and had illegal affairs in the past with certain persons. It is stated by the parties that immediately after marriage on 7th February 1996, the husband was transferred from Gwalior to Shivpuri and after joining in Shivpuri, he was immediately posted at Chanderi where he is staying since February 1996. Thereafter, the wife was also transferred from Gwalior to Indore as District Women and Child Development Officer, Indore on 19th March 1996 and since then she is staying at Indore. It is the case of the respondent that ever since their marriage, they have not cohabited, they are living separately and a girl child was born to the petitioner on 21st December, 1996 at Agra. Inter alia contending that the petitioner's wife is having illegal relations and the child born to her is not his child, respondent-husband has filed an application before the family Court at Gwalior and has sought a decree of divorce, so also, declaration to the effect that the child born to the petitioner on 21st December 1996 is not his child. On the aforesaid application filed by the respondent-husband, the petitioner has filed her reply and has denied the averments made in the petition for divorce and declaration. It seems that various conciliation proceedings took place and ultimately, an application was filed by the respondent-husband purported to be an application under Order XXVI rule 10A CPC, making a prayer that the child in question be subjected to DNA test. This application was objected by the petitioner and the grievance of the petitioner in this petition is that inspite of the objection, the application has been allowed by the impugned order.
3. Shri S.B. Mishra, learned senior counsel appearing for the petitioner made two grounds of attack to the impugned order. His first contention was that the relief of declaration claimed in the divorce petition is not maintainable and the same is beyond the jurisdiction of the family Court as contemplated under section 7 of the Family Courts Act, 1984. Inter alia contending that the family Court does not have any jurisdiction to declare the legitimacy of child, it is argued that the application itself was not maintainable, and therefore, no direction can be issued for conducting DNA test.
4. That, apart, placing reliance on various judgments pertaining to subjecting a person to medical test and blood test examination, etc., Shri S.B. Mishra, learned senior counsel argued that in the facts and circumstances of the present case, the direction given for conducting DNA test is wholly illegal, unwarranted and therefore, liable to be quashed.
5. In support of his contention with regard to maintainability of the application before the family Court and the jurisdiction of the family Court, Shri Mishra, learned senior counsel took me through the provisions of section 7 of the Family Courts Act and inviting my attention to a judgment of the Supreme Court in the case of Renubala Moharana and another v. Mina Mohanty and others [AIR 2004 SC
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