ORDER G. Rohini, J.
1. This revision petition is preferred against the order dated 7-9-2004 in IA. No. 671 of 2004 in O.P. No. 720 of 2002 under which the learned Judge, Family Court, Hyderabad, directed the revision petitioner to subject herself to DNA Test along with her daughter at Centre for D.N.A., Finger Print and Diagnostics, E.C.I.L. Road, Nizamabad.
2. The facts, in brief, are as under:
The marriage between the revision petitioner (hereinafter referred to as the wife) and the first respondent (hereinafter referred to as the husband) was performed on 23-5-2002 as per Hindu rites and customs at Nizamabad. On 16-9-2002, the husband filed O.P. No. 720 of 2002 in the Family Court, Hyderabad, under Section 12(1)(d) of the Hindu Marriage Act, 1955 (for short 'the Act') to declare the marriage as null and void on the ground that the wife was pregnant by some other person at the time of marriage. It is alleged that their marriage was not consummated at all and on 31-5-2002 when he along with his wife went to visit a temple, the wife hoodwinked him and fled away with the second respondent herein, who is no other than her own brother-in-law. Thereafter he came to know that the wife was having illicit intimacy with the second respondent and that she was pregnant through the second respondent by the date of their marriage itself. Hence, the marriage is liable to be declared as null and void under Section 12(1)(d) of the Act.
3. The wife filed a counter denying the allegations and pleading that the marriage was consummated on 23-5-2002 itself and since then they continued to live together as husband and wife. It was also specifically pleaded that she was pregnant through her husband after marriage. She also expressed her ready and willingness to join the husband and prayed that O.P. No. 720 of 2002 may be dismissed.
4. During the pendency of O.P. No. 720 of 2002, the wife gave birth to a female child on 28-2-2003. Thereafter, during the course of trial, the husband filed I.A. No. 671 of 2004 to refer the wife to the Centre for DNA and Finger Print and Diagnostics along with the daughter born to her for DNA Test alleging that the plea of the wife in the counter-affidavit in the main O.P. that she became pregnant after the marriage through the husband is false. While reiterating that their marriage was not consummated at all, it was alleged that the wife had illicit intimacy with the 2nd respondent and the daughter was born through him only and that the wife was pregnant by the date of the marriage itself. It was pledged that the DNA Test would conclusively establish whether the child was born through him out of wedlock or whether she was born through the 2nd respondent.
5. The said application was opposed by the wife specifically denying the allegation that the husband did not have sexual intercourse with her at all. She also contended that the D.N.A. test as sought by the husband is not at all necessary to decide the question involved in the main O.P. since the legitimacy of the child is not the matter in issue.
6. The Court below, having heard both the parties, by order dated 7-9-2004 held that it is a fit case where the wife along with the daughter should undergo D.N.A. test. Accordingly the petition was allowed with a direction to the wife to appear before the Director, Centre for D.N.A. Finger Print and Diagnostics along with the child on 15-9-2004 for D.N.A. test and that a confidential report should be submitted to the Court by 24-9-2004.
7. Aggrieved by the said order, this revision petition is filed by the wife under Article 227 of the Constitution of India.
8. I have heard the learned Counsel for both the parties and perused the material on record.
9. The learned Counsel for the revision petitioner/wife contended that for the purpose of the relief sought in the main O.P. it is not necessary to direct the parties along with the child to undergo DNA Test. The learned Counsel further contended that since the legitimacy of the child is not the matter in issue, the husband is not entitled for a direction to subject the wife along with the child to D.N.A. test. While placing strong reliance upon the decision of the Supreme Court in Banarsi Dass v. Teeku Dutta , the learned Counsel contended that the impugned order would amount to permitting the husband to lead evidence to rebut the conclusive proof as to the legitimacy of the child enjoined under Section 112 of the Evidence Act which is not permissible under law.
10. On the other hand, the learned Counsel for the 1st respondent/husband contended that having regard to the nature of the controversy involved, the Court below had rightly allowed the application filed by the husband and that no prejudice would be caused to either party by conducting such test except eliciting the correctness of the rival claims made by the parties.
112. Birth during marriage, conclusive proof of legitimacy:-The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eight days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.
12. On a bare reading of the above provision, it is clear that the child born during a valid marriage should be deemed to be legitimate except where it is shown that the parties to the marriage had no access to each other at any time when he could have been begotten.
13. It is also necessary to note the meaning given to conclusive proof under Section 4 of the Evidence Act.
Conclusive proof:-When one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it.
14. Section 112 of the Evidence Act, read with the definition of 'conclusive proof under Section 4 of the Evidence Act, makes it clear that on proof of the fact that the child was born during the continuance of a valid marriage, the legitimacy of such child shall be regarded as proved which can be disproved only by producing evidence that the parties to the marriage had no access to each other at any time when the child could have been begotten.
This section is based on the well-known maxim pater est quern nuptiae demonstrant (he is the father whom the marriage indicates). The presumption of legitimacy is this, that a child born of a married woman is deemed to be legitimate, it throws on the person who is interested in making out the illegitimacy, the whole burden of proving it. The law presumes both that a marriage ceremony is valid, and that every person is legitimate. Marriage or filiation (parentage) may be presumed, the law in general presuming against vice and immorality.
It is a rebuttable presumption of law that a child born during the lawful wedlock is legitimate, and that access occurred between the parents. This presumption can only be displaced by a strong preponderance of evidence, and not by a mere balance of probabilities.
16. It is also relevant to note the following observations made by the Apex Court in a later decision in Kamti Devi v. Poshi Ram , with particular reference to modern scientific advancements with Dioxy Nucletic Acid (DNA) and Ribonucleic Acid (RNA) tests:
...Section 112 itself provides an outlet to the party who wants to escape from the rigour of that conclusiveness. The said outlet is, if it can be shown that the parties had no access to each other at the time when the child could have been begotten the presumption could be rebutted. In other words, the party who wants to dislodge the conclusiveness has the burden to show a negative, not merely that he did not have the opportunity to approach his wife but that she too did not have the opportunity of approaching him during the relevant time. Normally, the rule of evidence in other instances is that the burden is on the party who asserts the positive, but in this instance the burden is cast on the party who pleads the negative. The raison d'etre is the legislative concern against illegitimatizing a child. It is a sublime public policy that children should not suffer social disability on account of the laches or lapses of parents.
We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancements with Dioxy Nucleic Acid (DNA) as well as Ribonucleic Acid (RNA) tests were not even in contemplation of the legislature. The result of a genuine DNA Test is said to be scientifically accurate. But even that is not enough to escape from the conclusiveness of Section 112 of the Act, eg., if a husband and wife were living together during the time of conception but the DNA Test revealed that the child was not born to the husband, the conclusiveness in law would remain unrebuttable. This may look hard from the point of view of the husband who would be compelled to bear the fatherhood of a child of which he may be innocent. But even in such a case the law leans in favour of the innocent child from being bastardized if his mother and spouse were living together during the time of conception. Hence the question regarding the degree of proof of non-access for rebutting the conclusiveness must be answered in the light of what is meant by access or non-access as delineated above.
17. While following the above observations made in Kamti Devi's case (supra) it was held in Banarsi Dass's case (supra) that it is for the parties to place evidence in support of their respective claims and establish their stands and that DNA Test is not to be directed as a matter of routine.
18. The learned Counsel for the petitioner while extensively referring to various observations made by the Supreme Court in the above decisions vehemently contended that the petitioner/wife cannot be compelled to subject herself to DNA Test against her wish.
19. Per contra, the learned Counsel for the 1st respondent/husband placed reliance upon the decisions in Dwarika Prasad Satpathy v. Bidyut Prava Dixit (1997) 7 SCC 675 Amarjit Kaur v. Harbhajan Singh and in Kamalanatha v. State of Tamil Nadu in support of her submission that an adverse inference has to be drawn against the wife for her refusal to undergo DNA Test.
20. Though the Court has ample power while deciding the matrimonial matters to order a person to undergo medical tests which cannot be held to be in violation of the rights guaranteed under Article 21 of the Constitution of India, as held by the Apex Court in Sharda v. Dharmapal such power is required to be exercised sparingly only where sufficient material is available before the Court and a strong prima facie case has been made out by the applicant. In the said decision, it was also made clear that if despite the order of the Court the respondent refuses to submit himself to medical examination, the Court will be entitled to draw an adverse inference against him.
21. In the light of the legal position noted above, the question that arises for consideration in the instant case is whether the Court below is justified in compelling the revision petitioner/wife to undergo DNA Test along with her child against her wish.
22. It is relevant to note that the main O.P. No. 720 of 2002 has been filed to declare the marriage as null and void under Section 12(1)(d) of Hindu Marriage Act, which runs as under:
12. Voidable Marriages:-(1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:
(d) that the respondent was at the time of marriage pregnant by some person other than the petitioner....
23. It is not in dispute that the marriage between the parties was performed on 23-5-2002 and the child was born on 28-2-2003 during the continuance of the marriage.
24. Whereas the husband claimed that the marriage was not consummated at all, the wife pleaded that the marriage was consummated on 23-5-2002 itself and since then they continued to live together as husband and wife and that the child was born out of the wedlock.
25. In view of the rival claims, undoubtedly the burden lies on the husband to establish that the wife was pregnant by some other person at the time of the marriage itself to enable him to get the marriage declared as a nullity. In other words, what is required to be established by the husband is that the wife was carrying a child through some other person at the time of the marriage itself.
26. To dislodge the conclusiveness of legitimacy of the child declared under Section 112 of the Evidence Act, the husband has the burden to establish that the wife conceived prior to the marriage and that the parties to the marriage had no access to each other at any time prior to the marriage when the child could have been begotten.
27. Once, he succeeded in establishing the same and the marriage is declared as void under Section 12(1)(d) of Hindu Marriage Act, 1955, it would automatically follow that the child though born during the continuance of a valid marriage shall be regarded as illegitimate. Such evidence is permissible under the later part of Section 112 of the Evidence Act which envisages an exception to the conclusive proof provided under the first part of Section 112 of the Evidence Act.
28. In Banarsi Dass's case (supra), an application under Section 372 of the Indian Succession Act was filed requesting grant of Succession Certificate on the ground that the applicant was the daughter. The respondents, who denied the said plea, filed an application to direct the applicant to DNA Test. Though the trial Court allowed the application, on revision under Section 115 of C.P.C., the High Court reversed the same observing that the scope of the enquiry was very limited and the trial Court being a testamentary Court should have left the parties to prove their respective cases by such evidence produced during trial, rather than creating evidence by directing DNA Test. The Apex Court while upholding the decision of the High Court held as under:
...The grant of a certificate does not establish a title of the grantee as the heir of the deceased, but only furnishes him with authority to collect his debts and allows the debtors to make payments to him without incurring any risk. In order to succeed in the succession application the applicant has to adduce cogent and credible evidence in support of the application. The respondents, if they so choose, can also adduce evidence to oppose grant of succession certificate. The trial Court erroneously held that the documents produced by the respondents were not sufficient or relevant for the purpose of adjudication and DNA Test was conclusive. This is not a correct view. It is for the parties to place evidence in support of their respective claims and establish their stands. DNA Test is not to be directed as a matter of routine and only in deserving cases such a direction can be given, as was noted in Goutam Kundu's case (supra). Present case does not fall in that category. The High Court's judgment does not suffer from any infirmity....
29. The above decision in which the Apex Court concluded that there was no need for the Court to direct DNA Test in the particular facts and circumstances of the case, which arose out of a dispute relating to grant of succession certificate is not applicable to the case on hand.
30. In the instant case, as noted above, the contentious issue between the parties and the decision thereupon has a direct bearing on the legitimacy of the child born during the continuance of the marriage. Having regard to the nature of the proceedings in the main O.P., undoubtedly the issue of paternity of the child is also a necessary issue for effective adjudication of the controversy in between the parties.
31. May be that the DNA Test, even if reveals that the child was not born to the husband, would not decide the core question in the main O.P. whether the wife was pregnant by some other person at the time of marriage itself. It is also true that the DNA Test by itself would not discharge the burden of proof placed on the husband under Section 12(1)(d) of the Hindu Marriage Act. However, undoubtedly, it is a piece of evidence to establish the case of the husband. Hence, in my considered opinion, it is a deserving case where the DNA Test could be directed to be conducted. It is not contrary to the conclusive proof enjoined under Section 112 of the Evidence Act and does not suffer from any error of law or fact.
32. For the aforesaid reasons, the order under revision directing the revision petitioner/ wife to subject herself to DNA Test along with the child does not warrant interference by this Court under Article 227 of the Constitution of India.
33. The civil revision petition is accordingly dismissed. No costs.