Sulochana Sahoo and Others vs Baman Charan Sahoo

Dr. Akshaya Kumar Rath, J—In this petition under Article 227 of the Constitution, the petitioners challenge, inter alia, the order dated 18.08.2006 passed by the learned Civil Judge (Jr. Divn.), Pipili in Title Suit No. 120 of 2001, whereby and whereunder, the learned trial court rejected the application of the petitioners to conduct their DNA test.

The opposite party as plaintiff instituted a suit for declaration that the defendant No. 1 is neither the second wife nor the concubine of the plaintiff, defendant Nos. 2 to 6 are not the children of the plaintiff through defendant No. 1, the defendants are not entitled to get any maintenance from the plaintiff and for permanent injunction restraining the defendants to enter into the house of the plaintiff in the court of the learned Civil Judge (Jr. Divn.), Pipili, which is registered as T.S. No. 120 of 2001. The case of the plaintiff is that he is a Government employee. He married to Radhamani Sahoo and leading a peaceful marital life. Out of their wedlock, five sons and one daughter are born. In the year 1980, defendant No. 1 married to one Baban Sahoo as per Hindu rites and customs. Defendant Nos. 2 to 6 are the sons and daughters of defendant No. 1. Defendant No. 1''s father''s sister is the mother-in-law of the plaintiff. The defendant No. 1 had occasion to come to his village. The plaintiff had acquaintance with defendant No. 1. It is further stated that the father of the defendant No. 1 had incurred a hand loan of Rs. 5,000/- from his sister in the year 1999. Since he failed to return the money, dispute arose between the brother and sister, whereafter the father of the defendant No. 1 threatened to take revenge. While the matter stood thus, he received a notice in Misc. Case No. 2 of 2000 of the learned J.M.F.C., Khurda wherein the defendants claimed maintenance under Section 125 Cr.P.C. @ Rs. 3,000/- per month from him. In the said petition, defendant No. 1 described falsely as his second wife and defendant Nos. 2 to 6 are the children of the plaintiff through defendant No. 1. The allegations made in the petition are false and baseless. He filed a rejoinder and contested the said misc. case, but the learned trial court allowed the claim of defendants and granted maintenance to each of the defendant @Rs. 400/- per month. It is further stated that the plaintiff had never married to the defendant No. 1 at any point of time. Defendant No. 1 with the help of her father and in connivance with some of the people of the locality intended to grab his property. Being emboldened by the order of the learned J.M.F.C., Khurda, the defendant No. 1 came to the village on 15.3.2001 with defendant Nos. 2 and her father and attempted to trespass to his residential house claiming to his wife.

Pursuant to issuance of summons, the defendants entered appearance and filed a comprehensive written statement denying the assertions made in the plaint. The subtraction of the case of the defendant No. 1 is that she is the legal married wife of the plaintiff. The first wife of the plaintiff, namely, Radhamani is the cousin sister of the defendant No. 1. Defendant Nos. 2 and 3 are the sons and defendant Nos. 4 to 6 are the daughters of the plaintiff and defendant No. 1. After the delivery of last child Radhamani, due to filaria, unable to take care of the child and to perform her marital duties. For that purpose, with the intervention of in-laws of Radhamani and other gentlemen, the defendant No. 1 got married to the plaintiff after obtaining the consent of Radhamani. After the marriage the plaintiff and defendant No. 1 led a happy conjugal life in the house of the plaintiff. Out of their wedlock, the defendant Nos. 2 to 6 are born. In the year 1999, the plaintiff informed the defendant No. 1 that he fell in love with another girl at Puri namely Mami and wanted to marry her and persuaded her to sign in a plain paper. The defendant No. 1 did not agree with the proposal of the plaintiff, whereafter he abandoned the defendants. Attempts were made to settle the dispute. She also made complaint before the authority and the Collector, but her attempts ended in a fiasco. Thereafter, she filed a petition under Section 125 Cr.P.C. being Crl. Misc. Case No. 2/2000 in the court of the learned S.D.J.M., Khurda seeking maintenance for her and the children. The plaintiff appeared in that case and denied the assertions made in the petition. He had not adduced evidence. The case was allowed. When the N.B.W. and D.W. were issued against the plaintiff, he has filed this suit with vexatious allegations to wriggle out of the liabilities.

While the matter stood thus, the defendants filed an application in the trial court on 22.3.2005 to conduct DNA test of defendant Nos. 2 to 6. It is stated that the defendant No. 1 is the wife of the plaintiff and out of their wedlock, defendant Nos. 2 to 6 are born. The plaintiff has instituted a suit for declaration that the defendant Nos. 2 to 6 are not their sons and daughters. If the DNA test is conducted, then it will be revealed that the defendant Nos. 2 to 6 are the sons and daughters of the plaintiff and defendant No. 1. The plaintiff objected to the said petition and stated that the plea of the DNA test has to be taken at the earliest opportunity; that is prior to filing of the written statement. Whether the defendant Nos. 2 to 6 are the children of the plaintiff the same will be adjudicated on the basis of the evidence adduced by the parties and there is no necessity for DNA test at this stage.

By a laconic order dated 18.08.2006, learned trial court rejected the petition. The operative part of the said order is quoted hereunder:

"xxx xxx xxx

Heard from both sides. On perusal of the record, it is found that evidence from both sides have completed. At this stage, in my opinion there is no necessity for DNA test of defendant Nos. 2 to 6 to prove that they are the children of plaintiff. Hence, the petition filed by the defendants dated 22.3.2005 for DNA test of defendant Nos. 2 to 6 is rejected being devoid of any merit. Put up on the date 23.8.06 for argument."

In Bhabani Prasad Jena Vs. Convenor Secretary, Orissa State Commission for Women and Another, AIR 2010 SC 2851 : (2011) 1 CTC 111 : (2010) 2 DMC 307 : (2010) 8 JT 85 : (2010) 7 SCALE 582 : (2010) 8 SCC 633 : (2010) 9 SCR 457 : (2010) 8 UJ 3795 : (2010) AIRSCW 5307 : (2010) 6 Supreme 247 , the apex Court in paragraphs 13 and 14 held as follows:--

"13. In a matter where paternity of a child is in issue before the court, the use of DNA is an extremely delicate and sensitive aspect. One view is that when modern science gives means of ascertaining the paternity of a child, there should not be any hesitation to use those means whenever the occasion requires. The other view is that the court must be reluctant in use of such scientific advances and tools which result in invasion of right to privacy of an individual and may not only be prejudicial to the rights of the parties but may have devastating effect on the child. Sometimes the result of such scientific test may bastardised an innocent child even though his mother and her spouse were living together during the time of conception. In our view, when there is apparent conflict between the right to privacy of a person not to submit himself forcibly to medical examination and duty of the court to reach the truth, the court must exercise its discretion only after balancing the interests of the parties and on due consideration whether for a just decision in the matter, DNA is eminently needed. DNA in a matter relating to paternity of a child should not be directed by the court as a matter of course or in a routine manner, whenever such a request is made. The court has to consider diverse aspects including presumption under Section 112 of the Evidence Act; pros and cons of such order and the test of ''eminent need'' whether it is not possible for the court to reach the truth without use of such test.

There is no conflict in the two decisions of this Court, namely, Goutam Kundu Vs. State of West Bengal and another, AIR 1993 SC 2295 : (1993) CriLJ 3233 : (1993) 2 Crimes 481 : (1993) 2 DMC 162 : (1993) 3 JT 443 : (1993) 2 SCALE 994 : (1993) 3 SCC 418 : (1993) 3 SCR 917 and Sharda Vs. Dharmpal, AIR 2003 SC 3450 : (2003) 2 CTC 760 : (2003) 1 DMC 627 : (2003) 3 JT 399 : (2003) 3 SCALE 475 : (2003) 4 SCC 493 : (2003) 3 SCR 106 : (2003) 2 UJ 870 : (2003) AIRSCW 1950 : (2003) 2 Supreme 962 . In Goutam Kundu, it has been laid down that courts in India cannot order blood test as a matter of course and such prayers cannot be granted to have roving inquiry; there must be strong prima facie case and court must carefully examine as to what would be the consequence of ordering the blood test. In the case of Sharda while concluding that a matrimonial court has power to order a person too undergo a medical test, it was reiterated that the court should exercise such a power if the applicant has a strong prima facie case and there is sufficient material before the court. Obviously, therefore, any order for DNA can be given by the court only if a strong prima facie case is made out for such a course. In so far as the present case is concerned, we have already held that the State Commission has no authority, competence or power to order DNA. Looking to the nature of proceedings with which the High Court was concerned, it has to be held that High Court exceeded its jurisdiction in passing the impugned order. Strangely, the High Court over looked a very material aspect that the matrimonial dispute between the parties is already pending in the court of competent jurisdiction and all aspects concerning matrimonial dispute raised by the parties in that case shall be adjudicated and determined by that Court. Should an issue arise before the matrimonial court concerning the paternity of the child, obviously that court will be competent to pass an appropriate order at the relevant time in accordance with law. In any view of the matter, it is not possible to sustain the order passed by the High Court."

On a conspectus of the said decision, it is evident that despite the consequence of a DNA test, it is permissible for a Court to permit the holding of a DNA test, if it is eminently needed, after balancing the interests of the parties.

In Nandlal Wasudeo Badwaik Vs. Lata Nandlal Badwaik and Another, AIR 2014 SC 932 : (2014) AIRSCW 506 : (2014) CriLJ 1098 : (2014) 1 JT 266 : (2014) 1 SCALE 99 : (2014) 2 SCC 576 , the apex Court held as follows:

"15. xxx xxx xxx

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.

As stated earlier, the DNA test is an accurate test and on that basis it is clear that the appellant is not the biological father of the girl-child. However, at the same time, the condition precedent for invocation of Section 112 of the Evidence Act has been established and no finding with regard to the plea of the husband that he had no access to his wife at the time when the child could have been begotten has been recorded. Admittedly, the child has been born during the continuance of a valid marriage. Therefore, the provisions of Section 112 of the Evidence Act conclusively prove that respondent No. 2 is the daughter of the appellant. At the same time, the DNA test reports, based on scientific analysis, in no uncertain terms suggest that the appellant is not the biological father. In such circumstance, which would give way to the other is a complex question posed before us.

We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancement and DNA test were not even in contemplation of the Legislature. The result of DNA test is said to be scientifically accurate. Although Section 112 raises a presumption of conclusive proof on satisfaction of the conditions enumerated therein but the same is rebuttable. The presumption may afford legitimate means of arriving at an affirmative legal conclusion. While the truth or fact is known, in our opinion, there is no need or room for any presumption. Where there is evidence to the contrary, the presumption is rebuttable and must yield to proof. Interest of justice is best served by ascertaining the truth and the court should be furnished with the best available science and may not be left to bank upon presumptions, unless science has no answer to the facts in issue. In our opinion, when there is a conflict between a conclusive proof envisaged under law and a proof based on scientific advancement accepted by the world community to be correct, the latter must prevail over the former.

We must understand the distinction between a legal fiction and the presumption of a fact. Legal fiction assumes existence of a fact which may not really exist. However presumption of a fact depends on satisfaction of certain circumstances. Those circumstances logically would lead to the fact sought to be presumed. Section 112 of the Evidence Act does not create a legal fiction but provides for presumption.

The husband''s plea that he had no access to the wife when the child was begotten stands proved by the DNA test report and in the face of it, we cannot compel the appellant to bear the fatherhood of a child, when the scientific reports prove to the contrary. We are conscious that an innocent child may not be bastardized as the marriage between her mother and father was subsisting at the time of her birth, but in view of the DNA test reports and what we have observed above, we cannot forestall the consequence. It is denying the truth. "Truth must triumph" is the hallmark of justice."

After a survey of the earlier decisions, the apex Court in the case of Dipanwita Roy Vs. Ronobroto Roy, (2014) 3 DMC 812 : (2015) 1 JCC 441 : (2014) 4 RCR(Civil) 724 : (2014) 9 SCJ 461 held that depending on the facts and circumstances of the case, it would be permissible for a Court to direct the holding of a DNA examination, to determine the veracity of the allegations, which constitute one of the grounds, on which the concerned party would either succeed or lose. There can be no dispute, that if the direction to hold such a test can be avoided, it should be so avoided. The reason, as already recorded in various judgments by this Court, is that the legitimacy of a child should not be put to peril.

On the anvil of the decisions cited supra, the case of the petitioners may be examined. In the instant case, the plaintiff denied to be the biological father of the defendant Nos. 2 to 6 whereas the specific plea of the defendant Nos. 2 to 6 is that they are the sons and daughters of the plaintiff and defendant No. 1. Defendant Nos. 2 to 6 have filed the application for holding of their DNA examination. In the event the suit is decreed, the defendant Nos. 2 to 6 will suffer the ignominy. Before the court declares their status holding of the DNA examination of the plaintiff and defendant Nos. 2 to 6 is eminently needed for a just decision in the matter.

Before parting with this case, this Court refers to a passage of the oft-quoted decision of the apex Court in the case of Smt. Parayankandiyal Eravath Kanapravan Kalliani Amma and others Vs. K. Devi and others, (1996) 4 AD 333 : AIR 1996 SC 1963 : (1996) 2 DMC 82 : (1996) 4 JT 656 : (1996) 4 SCALE 131 : (1996) 4 SCC 76 : (1996) 2 SCR 1 Supp :

"A million million spermatozoa

All of them alive:

Out of their cataclysm but one poor

Noah

Dare hope to survive.

And among that billion minus one

Might have chanced to be

Shakespeare, another Newton, a new Donne

But the one was me.

So said Aldous Huxley, perhaps in desperation and despondency. And, that is how a person would feel on being bastardized by a court verdict, disentitling him from inheriting the properties left by his father."

In the wake of the aforesaid, the order dated 18.08.2006 passed by the learned Civil Judge (Jr. Divn.), Pipili in T.S. No. 120 of 2001 is quashed. This Court directs to hold the DNA test of the plaintiff and defendant Nos. 2 to 6 at State Forensic Laboratory, Rasulgarh, Bhubaneswar. For the said purpose, the plaintiff as well as the defendant Nos. 2 to 6 shall remain present in State Forensic Laboratory on 2.12.2015 at 11.00 A.M. The DNA samples of the plaintiff as well as the defendant Nos. 2 to 6 shall be obtained by the Laboratory in the presence of the defendant No. 1. The plaintiff shall deposit the expenses of DNA test in the Laboratory in advance. After conducting the DNA test, the State Forensic Laboratory shall forward a copy of the report to the court of the learned Civil Judge (Jr. Divn.), Pipili forthwith.

The petition is allowed.