DNA Test; W Vs. H [Delhi High Court, 26-08-2016]

Evidence Act, 1872 – S. 112 – Birth during marriage, conclusive proof of legitimacy – Effect of the presumption – DNA test – the husband who challenges paternity of a child born during the subsistence of the marriage, has to establish with convincing evidence “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”.

Evidence Act, 1872 – S. 112 – Birth during marriage, conclusive proof of legitimacy – Effect of the presumption – DNA test – The conclusiveness of the presumption cannot be disturbed lightly.

Evidence Act, 1872 – S. 112 – Birth during marriage, conclusive proof of legitimacy – Effect of the presumption – DNA test – The presumption under S. 112 can be displaced only by such evidence which meets a standard higher than preponderance of probabilities, and not by a mere preponderance of probabilities. The strong presumption under S. 112 of legitimacy of a child born during marriage therefore can only be rebutted by “strong, clear, satisfying and conclusive” evidence of “non access”.

Family Court Act, 1984 – Section 19 – Evidence Act, 1872 – S. 112 – Birth during marriage, conclusive proof of legitimacy – Effect of the presumption – DNA test – Ensuring the Constitutional rights of the child – Application for an examination – prima facie case – Direction for compelling a medical examination or a DNA test to establish any fact – when to be made? – Displacement of the conclusive presumption – Standard of proof to do so? What is the meaning of “access” and “non-access” – Summation of the principles laid down by judicial precedents – Whether the case of non-access was specifically pleaded – Whether there is non-traverse by the wife of the husband’s pleadings, and thereby, deemed admission thereof? – Admissions of paternity by the husband on court records – impact on “prima facie case” – Conduct of the husband despite his allegations against his wife – impact thereof – Concealment and statement of wrong facts – whether impacts consideration of prima facie case? DNA report whether supports a prima facie case in favour of the husband?

IN THE HIGH COURT OF DELHI AT NEW DELHI

CORAM: HON’BLE MS. JUSTICE GITA MITTAL HON’BLE MR. JUSTICE I.S.MEHTA

MAT.APP.(F.C.) 17/2016 & CM No.5064/2016

Date of decision : 26th August, 2016

‘W’ ….. Appellant Through: Mr. Sandeep Sethi and Mr. Sudhanshu Batra, Sr. Advs. with Mr. Vineet Malhotra, Mr. Apoorva Agarwal, Mr. Abhijat and Mr. Shubhendu Kaushik, Advs. versus ‘H’ & ANR ….. Respondents Through: Mr. V.K. Gupta, Sr. Adv. with Mr. Sanjeev Mahajan, Ms. Ruchira Gupta, Ms. Swati Jain, Ms. Mona Sinha and Mr. Anurag Sharma, Advs.

JUDGMENT

GITA MITTAL, J

1. By way of the instant appeal under

Section 19 of the Family Court Act, 1984

the appellant wife assails the order dated 28th January, 2016 passed by the Principal Judge, Family Courts, New Delhi in HMA No.223/2015 whereby the trial court allowed an application under Section 151 of the CPC moved by the respondent no.1 husband seeking a DNA test of the appellant and the minor child.

2. Before examining the impugned order, we propose to notice the essential facts which emerge from the family court record and give rise to the present appeal. Marriage between the appellant and the respondent no.1 was solemnised on 3rd December, 2007 in accordance with Hindu rites and ceremonies at the Ashoka Hotel, Chanakyapuri, New Delhi.

3. At the time of the marriage, H- respondent no. 1 was serving as an officer of the Indian Administrative Services (IAS) in the Nagaland Cadre and was posted at District Mokokchung, Nagaland while the appellant was residing with her parents, continuing her studies, and preparing for the civil services examination. The appellant also qualified the IAS examination in the year 2009 and was allotted the U.P. Cadre of the Indian Administrative Services. On this basis, the respondent no.1 applied for change of cadre and, in the middle of June, 2011, was relieved of his charge in Nagaland and was posted as District Magistrate in Lakhimpur, Kheri District in U.P.

4. In July, 2012, the respondent was transferred as a District Magistrate, Bareilly while the appellant was appointed as a Chief Development Officer of District Lucknow. In February, 2013, the appellant was transferred as a District Magistrate, Pilibhit.

5. It appears that a decision was taken by the H & W to seek dissolution of their marriage. On the 1st of October 2014, a joint petition was filed by H-the respondent no.1 (as petitioner no.1) and W-the appellant (as petitioner no.2) under

Section 13B(1) of the Hindu Marriage Act, 1955

seeking dissolution of marriage of the parties by a decree of divorce by mutual consent which was registered as HMA No.1099/2014 at the court of the Principal Judge, Family Courts, Saket, New Delhi. We extract hereunder certain material averments made in this joint petition :

“6. However, while there have been, because of temperamental difference and incompatibility, reduced time of cohabitation and living together and also occupational placements, the parties, for the last one year, have been residing separately.

7. That a child named (Baby X) was born on 6.10.2013 at Lucknow and the child is in custody of the mother at Sultanpur.

8. That the petitioner no.1 (sic. husband) is presently posted as District Magistrate in Aligarh and the petitioner no.2 (sic. wife) is posted as District Magistrate, Sultanpur. Both the petitioners are well settled in life.

9. That due to temperamental differences, parties to the present petition have not been able to live in cordial atmosphere at the matrimonial home.

10. That the parties are living separately from each other for more than a year and there has been no resumption of any cohabitation between them, nor there is any chance for the same.

xxx xxx xxx

13. That the parties have resolved their disputes and differences and it has been specifically agreed by the petitioner no.1 and petitioner no. 2 that petitioner no.2 or her relatives shall not claim anything from petitioner no.1 (or his relatives) in any court of law in India and outside India. Likewise, petitioner no.1 shall make no claim from petitioner no.2 (or her relatives).

14. That it is agreed between both the parties that petitioner no.2 neither be entitled to any amount from petitioner no.1 (as she has voluntarily relinquished all her claims against petitioner no.1) nor shall claim any right in any of his assets, movable or immovable, in any manner whatsoever in India or outside India, past, present and future. Similarly, petitioner no.1 has relinquished all his claims, past, present and future against petitioner no.2.

15. Considering the welfare of the child, she would grow up exclusively in the custody of mother, i.e., petitioner no.2 (Baby X). Petitioner no.1 gives up all claims to custody even access. He shall not be liable for maintenance and education of the child in present or future, which shall be borne by petitioner no.2 solely.

xxx xxx xxx

17. That the present petition is not being presented in collusion with each other.

xxx xxx xxx

20. That the parties to the present petition are not accessory to nor have connived with each other in presenting the present petition.”

6. This petition was verified on solemn affirmation. It was supported by an affidavit of both the parties. In para 1 of his affidavit, the respondent no.1 husband clearly stated that the petition “has been drafted by my counsel at my instructions. I have read and understood the contents thereof and hereby state that the same are true and correct”. The affidavit also contained unequivocal declarations of non-collusion; voluntariness of the mutual consent and that he was not an accessory to or have connived at with petitioner no.2 in presenting or prosecuting the present petition.

7. The above petition contains an absolute admission that a child named Baby ‘X’ was born to the parties on 6th of October 2013 who was in custody of the mother who was posted at Sultanpur. There is a further admission of fatherhood by the respondent no.1 in para 15 of the petition when he unequivocally gives up all claims to custody, even to access to the child, and abandons responsibility for her maintenance and education which was agreed to be borne by the mother alone. The parties clearly mentioned that the child would grow up exclusively in the “custody of the mother” endorsing the abandonment of custody rights by the other party.

8. In the joint statement recorded of the appellant and the respondent no.1 on the 1st of October 2014 by the Principal Judge (South-East), Family Courts, Saket, H-the respondent no.1 once again declared that “a child named Baby X was born on 6.10.2013 at Lucknow and the child is in custody of the mother at Sultanpur”. In this statement on oath, H-the respondent no.1 again referred to the agreement that the “permanent custody of the minor child baby shall remain with the petitioner no.2/wife”.

9. The Family Court had raised an objection with regard to the maintainability of the petition in the Family Court at Saket on account of territorial jurisdiction. In view of this objection, on the 22nd October, 2014, the parties agreed to withdraw the petition with opportunity to file a fresh petition before the court having competent jurisdiction. The Family Court recorded the statement of counsels for the parties and permitted the petition to be withdrawn with liberty to file a fresh petition before the court of competent jurisdiction.

10. On the 31st of October 2014, the appellant and respondent no.1 jointly filed a second petition before the Family Court, Patiala House under Section 13B(1) of the Hindu Marriage Act, 1955, registered as HMA No.783/2014, for dissolution of their marriage by way of decree of divorce by mutual consent which was containing the identical averments as paras 6 to 10 and 13 to 15 of the first petition, as extracted above. In para 25, the parties disclosed the filing of the previous petition being HMA No.1099/2014 in the Saket Family Courts. The petition was again supported by separate affidavits of the appellant as well as respondent no.1.

In para 13, the respondent no.1 had again declared that the parties have resolved their disputes and differences.

11. It appears that thereafter, the respondent no.1 filed an application for withdrawal of the above petition urging that there were certain unwritten conditions also, agreed upon between the parties, and that he would continue with a criminal complaint which stood filed by him against the appellant and the respondent no.2 on grounds of adultery and that he was not prepared to withdraw the said complaint. The respondent no.1 claimed that he had agreed to file a petition by mutual consent purely in the interest of the child involved in the case and to bring to an end the relationship of the parties which was non-existent on account of certain acts attributed to the appellant. In view thereof, the respondent no.1 stated that he was withdrawing from the joint petition and prayed for its dismissal. As a result, on 9th January, 2015, the Principal Judge, Patiala House, Delhi dismissed the joint petition as withdrawn with liberty to the respondent no.1 to file a fresh petition for dissolution of marriage under appropriate provisions of law. The learned Family Court noted the absence of the appellant wife.

12. It is only thereafter that on or about the 29th January, 2015, the respondent no.1 filed HMA No.3329/2014 before the Principal Judge, Family Court, Lucknow under Section 13(1)(i) of the Hindu Marriage Act for dissolution of marriage of the appellant and respondent no.1 by a decree of divorce. In this petition, H-the respondent no. 1 levelled allegations of adultery on the part of the appellant with a person who was impleaded as a respondent no.2 and for the first time denied paternity of the child of the parties born on 6th October, 2013.

13. This petition was transferred by the Supreme Court of India from Lucknow to Delhi vide order dated 23rd February, 2015 passed in Transfer Petition (Civil) No.1886/2014. The appellant filed a detailed written statement contesting allegations of the appellant and vehemently denying the allegations of adultery.

14. The appellant has set-up a case that she was subjected to grave torture and abuse, both mental and physical, at the hands of the respondent no.1; that the parties were cohabiting as husband and wife at their postings and that the respondent no.1 husband would come and stay at Lucknow or she would go and stay with him on leave or whenever visiting his place of posting. The appellant has asserted that she conceived from their wedlock and cohabitation and in February, 2013 told the respondent no.1 that she was expecting their child.

The respondent no.1 urges that this information was received from her only in April, 2013.

15. On 6th of October 2013, the appellant gave birth to a girl child at Lucknow. On 18th October, 2013, a lunch and pooja ceremony was organized at the house of the appellant’s parents which was attended by the parents of the respondent no.1 and large number of his guests. The priest who performed the pooja is stated to be an old acquaintance of the respondent no.1 and his parents from the time of his posting at Lakhimpur, Kheri District.

16. The appellant submits that between 9th and 29th November, 2013, the appellant visited Bareilly and stayed with the respondent. However, thereafter, the parties could not cohabit with each other.

17. Replication thereto was filed by the respondent husband disputing the allegations of the wife.

18. Issues were framed in the matter on 24th August, 2015 and the matter proceeded to evidence of the appellant.

19. The respondent no. 1 thereafter filed his list of witnesses. He also filed his examination in chief by way of affidavit dated 29th July, 2015 which was tendered in evidence and he was examined extensively on 14th; 24th; 28th; and 29th September, 2015 when his cross examination was concluded.

20. On the next date of hearing i.e. 16th October, 2015, the evidence of PW-2 Sh. Vikas Verma was recorded and he was discharged.

21. The matter was posted for the remaining evidence of the respondent no.1 on 29th October, 2015 and 9th November, 2015.

22. The next witness was Inspector Vijaymal Singh Yadav who was examined as PW-3 on 8th December, 2015 and discharged.

23. On the 14 th of October 2015, the husband-respondent no.1 filed an application under Section 151 C.P.C. seeking a direction for conducting the DNA test of the respondent no.1 and the child to ascertain as to whether he was the biological father of the child and for a further direction to the appellant to produce the child either in court or elsewhere to enable her blood samples to be taken. This application was also listed on the above dates. The appellant had filed a note dated 4th of January 2016 opposing the application on merits and in law.

24. This application was allowed by the Family Court by the order dated 28th of January 2016 inter alia directing the appellant to bring the child to the office of the Director, CFSL in the CGO Complex, Lodhi Road when the respondent no.1 was also directed to remain present so that the blood samples could be taken in the presence of the parties.

This order has been assailed by way of the present appeal.

25. Before examining the rival contentions, we summarise the headings under which this matter has been considered :