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HIGH COURT OF PATNA
Mr. Justice Anil Kumar Sinha
Bipin Kumar Singh – Appellant
Versus
Smt. Pushpa Devi – Respondent
C.Misc./568/2018
The Courts in India cannot order blood test as a matter of course and such prayer cannot be granted to have roving inquiry. There must be strong prima facie case and the Court must carefully examine as to what would be the consequence of ordering the blood test.
Headnote:
DNA TEST - PATERNITY - ADULTERY - [KEYWORD] - [KEYWORD] - [KEYWORD]
Fact of the Case:
The petitioner seeks to establish that Khushi Kumari was born of illicit relationship between his wife and another person. The petitioner has not only pleaded that he had no contact with his wife/respondent at the time she conceived i.e., in 2005, but also claims that he is incapable of fathering a child and had been so in the entire course of marriage.
Finding of the Court:
The Court is of the opinion that such prayer cannot be allowed for collecting evidence and to have roving inquiry upon the allegation made by the petitioner. The petitioner has filed the divorce suit for dissolution of marriage not only on the ground of adultery but also tried to make out a case of cruelty and desertion against the respondent. It would, thus, appear that the petitioner is taking chance for collecting evidence after the closure of his evidence in the suit in support of ground of adultery. This, in my opinion, is not permissible.
Issues: Whether a direction should be given for conducting the DNA Test on one Khushi Kumari, a minor daughter of the respondent to ascertain her biological connection with the petitioner who denies that he is not Khushi Kumari’s biological father to prove the allegation of infidelity brought by the petitioner against the respondent in a Divorce Case.
Ratio Decidendi: The Courts in India cannot order blood test as a matter of course and such prayer cannot be granted to have roving inquiry. There must be strong prima facie case and the Court must carefully examine as to what would be the consequence of ordering the blood test. The Court should exercise such power if the application has strong prima facie case and there is sufficient material before the Court.
Final Decision: The acceptance, in principle, of the usefulness of DNA Test as proof of infidelity notwithstanding, the Hon’ble Supreme Court has cautioned against the holding of such tests as a matter of course that too without the consent of the parties.
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.568 of 2018
In
Miscellaneous Appeal No.302 of 2017
======================================================
Bipin Kumar Singh son of Sri Ram Brichh Singh, Resident of Village-
Madadpur, PS-Pundarakh, District-Patna
... ... Petitioner/s
Versus
Smt. Pushpa Devi wife of Bipin Singh, daughter of late Alakhdeo Singh,
Resident of Village-Ratana, PS-Chhabilapur, District- Nalanda.
======================================================
Appearance :
For the Petitioner/s
:
Mr. Sriram Krishna,
Mr. Amarjeet
Dr. Kamal Deo Sharma, Advocates.
For the Respondent/s
:
Mr. Rabindra Prasad Singh, Advocate
Amicus Curiae
:
Ms. Surya Nilambari, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE ANIL KUMAR SINHA
CAV JUDGMENT/ORDER
12
09-01-2023
The only issue that arises for consideration in this
case is whether a direction should be given for conducting the
DNA Test on one Khushi Kumari, a minor daughter of the
respondent to ascertain her biological connection with the
petitioner who denies that he is not Khushi Kumari’s biological
father to prove the allegation of infidelity brought by the
petitioner against the respondent in a Divorce Case. The
petitioner seeks to establish that Khushi Kumari was born of
illicit relationship between his wife and another person. The
paternity of the child is not a question in this case, thus, is only
incidental to the main issue which pertains to whether or not the
petitioner’s wife has been faithful to him. To substantiate the
ground of adultery, on which the divorce is being sought along
Patna High Court C.Misc. No.568 of 2018 dt. 09-01-2023
2/24
with other grounds, the case of the petitioner is that Khushi
Kumari is the living example of adultery of his wife. The
petitioner has not only pleaded that he had no contact with his
wife/respondent at the time she conceived i.e., in 2005, but also
claims that he is incapable of fathering a child and had been so
in the entire course of marriage.
2. The petitioner has filed the present case for setting
aside the order dated 15.02.2017 passed in Matrimonial Case
No. 833/2010 by the Principal Judge, Family Court, Patna
whereby the prayer of the petitioner to conduct DNA Test of the
female child and the petitioner to ascertain as to whether the
petitioner is the biological father of the child, has been rejected.
3. The brief fact giving rise to the present petition is
that the marriage of the petitioner was solemnized with the
respondent as per Hindu rites on 05.06.1987. The petitioner was
in Indian Army from where he retired from his service on
01.01.2005. The petitioner sent his brother to the respondent’s
maternal home, where she had been residing at the time of
petitioner's retirement, to bring her back to her matrimonial
home but the respondent refused to return. The petitioner made
several efforts to bring his wife back but the same went in vain.
On 29.06.2007, the respondent/wife filed a Complaint Case No.
Patna High Court C.Misc. No.568 of 2018 dt. 09-01-2023
3/24
715-C/2007 in the court of Judicial Magistrate 1st Class,
Biharsharif, Nalanda against the petitioner and his relatives
including one Vibha Devi with whom, the respondent claims,
the petitioner performed second marriage, for the offence
punishable under Sections 498A, 323, 379, 307/34 of the IPC.
4. The petitioner preferred anticipatory bail
application before this Court bearing Cr. Misc. No.37124/2008,
in which, the petitioner was granted privilege of provisional bail
on his undertaking that he was ready and willing to resume
matrimonial relations with his wife/respondent. The provisional
bail was to be confirmed in case his wife returned to the
matrimonial home with the settlemen
