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IN THE HIGH COURT OF MADHYA PRADESH
Vijay Kumar Shukla, J.
Badri Prasad Jharia - Petitioner
Versus
Smt. Seeta Jharia - Respondent
W.P. No.15345 of 2016
Decided on : 21-04-2017
DNA Test - Dissolution of Marriage - Hindu Marriage Act, 1955, Section 13(1) - Indian Penal Code, Section 494 - Indian Evidence Act, Section 112, 114 - The court discussed the legal provisions related to DNA test, paternity, legitimacy of a child, and the right to individual privacy. It highlighted the interpretation of Section 112 of the Evidence Act and the balance between the right to privacy and the need for DNA testing. The court emphasized that while DNA testing is a legitimate means to establish paternity and infidelity, a person cannot be compelled for the test, and adverse inference can be drawn under Section 114 of the Evidence Act if the test is refused.
Fact of the Case:
The petitioner filed for dissolution of marriage under Section 13(1) of the Hindu Marriage Act, alleging adulterous behavior by the respondent. He requested a DNA test for the child born during the marriage, which was refused by the respondent. The Family Court rejected the DNA test application, stating that adverse inference of refusal would be considered at the time of passing final judgment.
Finding of the Court:
The court found that the refusal of the DNA test by the respondent could lead to adverse inference under Section 114 of the Indian Evidence Act. It discussed the legal provisions related to DNA testing, paternity, legitimacy of a child, and the right to individual privacy. The court emphasized the balance between the right to privacy and the need for DNA testing.
Issues: The issues involved the refusal of the respondent for a DNA test, the legal provisions related to DNA testing, and the balance between the right to privacy and the need for DNA testing.
Ratio Decidendi: The court held that while DNA testing is a legitimate means to establish paternity and infidelity, a person cannot be compelled for the test. It emphasized the balance between the right to privacy and the need for DNA testing, and the possibility of drawing adverse inference under Section 114 of the Evidence Act if the test is refused.
Final Decision: The writ petition was dismissed, and the court found no illegality or perversity in the impugned order. The petitioner was given the liberty to file an application for DNA test after recording evidence or to request the Court to draw adverse inference against the respondent for refusing the DNA test in terms of Section 114 of the Indian Evidence Act.
Shri Vijay Kumar Shukla, J.
1. In this writ petition preferred under Article 227 of the Constitution of India, challenge has been made to the order dated 24-8-2016 passed in HMA Case No.33/2015 by the learned Principal Judge, Family Court, Mandla whereby an application submitted by the petitioner for DNA test of the respondent has been rejected.
2. The factual expose, succinctly adumbrated in a nutshell is that the petitioner got married with the respondent in the year 1999. He is a government servant posted as a clerk in the I.T.I., Chhindwara, whereas the respondent is posted as a teacher in District Mandla. The parties are living at their respective places of posting ever since after solemnisation of their marriage in the year 1999.
A petition for dissolution of marriage under Section 13(1) of the Hindu Marriage Act, 1955 is filed by the petitioner against the respondent on the ground of adulterous behaviour alleging that she is having extra-marital relationship.
3. The respondent-wife has also lodged a report against the petitioner for commission of offence punishable under Section 494 of the Indian Penal Code. A child-Vatsla Jharia was born during the wedlock of the petitioner and the respondent, but the petitioner has alleged that she is not his daughter, as there was no cohabitation with the respondent since the year 2006. It is submitted that the petitioner is posted at Chhindwara since 26-4-2006, whereas the said child has born in the year 2012.
4. The petitioner preferred an application before the Family Court for DNA test of the child in order to ascertain paternity of the child-Vatsla Jharia. In reply to the said application the respondent has refused for the DNA test of the child and herself. In addition to the denial in reply to the said application, she also made a statement for refusal of the DNA test of herself and the daughter. In this regard she had also made a specific note in the order-sheet in her own writing, refusing for DNA test.
5. By the impugned order the said application has been rejected by the Family Court on the ground that the respondent cannot be compelled for the DNA test, when she had specifically denied and refused for the said test. It is also mentioned in the order-sheet that the application has been filed prior to adducing of evidence before the Court below as the evidence is yet to commence on behalf of the parties. The Court has also mentioned in the order-sheet that adverse inference of refusal of DNA test by the respondent shall be taken into consideration at the time of passing final judgment and the case has been fixed for evidence.
6. Counsel for the petitioner submitted that the order impugned is perverse and illegal, as request for DNA test has been rejected by the Court without taking into consideration the pleadings advanced in the plaint and in the application, which prima facie establish that the respondent was leading an adulterous life and was having illicit relations with another person, whose name is also mentioned in the divorce petition, the Court ought to have allowed request for DNA test. It is contended that it would be impossible for him to establish the alleged infidelity of wife and the DNA test is the most legitimate scientifically perfect. He further submitted that the Apex Court in the case of Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik and another, (2014) 2 SCC 576 held that the DNA test is only a scientific method, by which the paternity of a child can be ascertained.
7. To buttress his submissions he also relied on the judgment of the Supreme Court rendered in the case of Sharda v. Dharampal, (2003) 4 SCC 493. He submitted that the right to individual privacy of the respondent would have been considered only after passing the order for DNA test and then only adverse inference and presumption as mentioned in Section 114 of the Indian Evidence Act, can be drawn. Thus, in sums and substance counsel for the petitioner has urged the Court below has erred whi
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