Smt. Jyoti Savita vs Pawan Kumar Sen

N.K. Mody, J.—Being aggrieved by the order dated 14-10-11 passed by I ADJ Datia in Civil Suit No. 31/09 HMA whereby review application filed by the petitioner for recalling of the order dated 4-8-10 was dismissed, present petition has been filed. Short facts of the case are that respondent filed a divorce petition on 15-5-09 wherein it was alleged that the marriage of the petitioner was to be solemnised with the respondent on 13-5-07, but at the time of marriage somebody fired on the respondent, with the result, respondent sustained head injuries and was hospitalised, therefore, marriage could not be solemnised. However, thereafter, on 15-5-07 the marriage was solemnised. It was alleged that the petitioner lived with the respondent upto 25-6-07, and thereafter, went to her parental house. It was alleged that on 7-7-08, petitioner came to her matrimonial house where she lived up to 20-7-08. Thereafter, again petitioner came to her matrimonial house with the younger brother Gagan on 20-4-09. It was alleged that after 20-4-09 petitioner is not residing with the respondent. In the petition, it was prayed that decree of divorce be passed. By way of amendment, it was alleged that on 20-5-09, petitioner-gave birth to the daughter namely Deepti who is not from the respondent. The petition was contested by the petitioner by filing the reply. During pendency of petition an application was filed by the respondent wherein it was prayed that since the daughter of the petitioner is not from respondent, therefore, DNA test be conducted This application was allowed vide order dated 4-8-10. Thereafter, divorce petition filed by the petitioner was itself dismissed vide order dated 13-10-10 which was subsequently restored. After its restoration petitioner filed an application for review of the order dated 4-8-10 alongwith an application for condonation of delay wherein it was alleged that the delay occurred because the suit was dismissed. The application was opposed by the respondent. After hearing the parties, application for review was dismissed, hence this petition.

Learned Counsel for the petitioner submits that the impugned order passed by the learned Court below is illegal, incorrect and deserves to be set aside. It is submitted that only on the basis of vague allegation, petitioner cannot be compelled for DNA test of her minor daughter. It is submitted that the learned Court below was not justified in dismissing the review application as well. It is submitted that the petition be allowed and impugned order passed by the learned Court below be set aside.

Learned Counsel for respondent supports the order and submits that the original order was passed on 4-8-10 whereby petitioner was directed for DNA test of girl child of the petitioner, which was not challenged by the petitioner. It is submitted that it is only review application which was filed, which was dismissed on 14-10-11 and in the writ petition it is only order dated 14-10-11 which is challenged. It is submitted that without challenging the order dated 4-8-10, the petition deserves to be dismissed. Learned Counsel further submits that the respondent is having a strong prima facie case in his favour because the respondent has specifically pleaded in his petition for grant of decree of divorce that the respondent had no sexual access with petitioner and since the petitioner has become pregnant with a sexual access by some other person, therefore, respondent is entitled for DNA test of the child. Learned Counsel placed reliance on a decision in the matter of Smt. Chanda Chouhan and Another Vs. Sanjay Chouhan, , wherein this Court has held that in the case, child borne in about seven months after marriage, then it cannot be concluded that the child was conceived before marriage. Reliance is also placed on a decision in the matter of Sharda Vs. Dharmpal, wherein in a case for divorce accompanied by application for a direction for medical examination of respondent Hon''ble Apex Court held that such power should be exercised only if the applicant has a strong prima facie case and there is sufficient material before the Court. Further reliance is placed on a decision in the matter of Smt. Seema Sharma Vs. Amar Sharma, , wherein this Court held that in a case where parentage of child of parties disputed, Family Court has discretion to order DNA test. Lastly reliance is placed on a decision in the matter of Smt. Selvi and Others Vs. State of Karnataka, On the strength of aforesaid position of law, learned Counsel submits that the petition be dismissed.

From perusal of the record, it is evident that in the petition for grant of decree of divorce no allegation is made against the petitioner about her character. By way of amendment also the only fact which is stated is that Deepti is not the daughter of the petitioner from respondent. Except this, the allegation which is made is that as per ultrasound report, which was found in the luggage, the petitioner was carrying pregnancy of eight weeks and five days, while petitioner was not with the respondent w.e.f. 20-7-08 to 20-4-09. After the orders which were passed on 4-8-10, the petition for divorce itself was dismissed on 25-10-10. Additional document has been filed on 13-4-13, which shows that a joint application was also filed on 27-2-13 under Order XXIII Rule 3, CPC. In the said application, it is alleged that decree of divorce be passed, for which petitioner has stated that it is wrong to say that any compromise took place between the parties and petitioner agreed for getting the decree of divorce. It is submitted that signatures of the petitioner were obtained by the respondent on the pretext that the respondent shall file a joint application before the Court below for the maintenance of their daughter. It is further stated that due to assurance given by the respondent, petitioner signed the document bonafidely believing that her daughter will get maintenance, which will be given by the respondent.

In the matter of Smt. Chanda Chouhan (supra), this Court has observed that when the child is borne out of the wedlock there is a presumption in favour of his legitimacy, however, it is rebuttable for which evidence must be strong, distinct, clear, satisfactory and conclusive. In the matter of Goutam Kundu Vs. State of West Bengal and another, wherein father disputing the paternity of child, Hon''ble Apex Court held that purpose of seeking blood test of child by moving an application is nothing more than to avoid payment of maintenance, without making any ground whatever to have recourse to the test. Hon''ble Apex Court further held that Courts in India cannot order blood test as a matter of course. Whenever, applications are made for such prayer in order to have roving inquiry, the prayer for blood test cannot be entertained. There must be a strong prima facie case in that the husband must establish non-excess in order to dispel the presumption arising u/s 112 of the Evidence Act. The Court must carefully examine as to what would be the consequence of ordering the blood test; whether it will have the effect of branding a child bastard and the mother as an unchaste woman. No one can be compelled to give sample of blood for analysis.

It is true that against the order dated 4-8-10 whereby petitioner was directed for DNA test of the girl, no petition was filed, except the review application and in the petition also it is only the order passed on the review application has been challenged, but only on that ground, the petition filed by the petitioner cannot be thrown keeping in view the gravity of the matter and the vague allegations made by the respondent in the petition only on the basis of ultrasound report kept in the luggage of petitioner and bare allegation of the respondent that the respondent was having no access. DNA test cannot be ordered.

In the facts and circumstances of the case petition filed by the petitioner is allowed and the order dated 4-8-10 and 25-10-10 whereby order was passed for DNA test of the daughter of the petitioner and also review application was dismissed, stands set aside with a further observation that the parties shall proceed to lead the evidence. After conclusion of evidence, if respondent is of the view that DNA test is necessary, then the respondent shall be at liberty to move the application in that regard. At that stage after giving an opportunity of hearing to the petitioner and the evidence on record, the Court will decide the same keeping in view the position of law regarding DNA test. With the aforesaid observations, petition stands disposed of.