advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Friday, January 24, 2014

D.N.A. - test - Divorce proceedings - after filing a child was born - no pleadings about the paternity of child raised - Divorce case was dismissed - in appeal by husband , simple the husband expressed a fresh doubt about paternity of a child - allowed the petition for D.N.A. test - Apex court held that when there is access between the spouse - when child born out of wedlock - in the absence of pleadings in lower court, a fresh doubt questioning the paternity of a child for the purpose of appeal not maintainable, the orders of high court are set aside = Ramkanya Bai ...Appellant Versus Bharatram ...Respondent = 2009 ( OCTOBER - VOL - 10) JUDIS.NIC.IN/ S.C. / FILE NAME =35605

 D.N.A. - test - Divorce proceedings -  after filing a child was born - no pleadings about the paternity of child raised - Divorce case was dismissed - in appeal by husband , simple the husband expressed a fresh doubt about paternity of a child - allowed the petition for D.N.A. test - Apex court held that when there is access between the spouse - when child born out of wedlock - in the absence of pleadings in lower court, a fresh doubt questioning the paternity of a child for the purpose of appeal not maintainable, the orders of high court are set aside =        

On a perusal of the application for grant of an order for


DNA test of the child, it would also be evident that there was no


allegation     made   by   the   husband/respondent   that   as       a


consequence of illicit relationship with some third person, the


child was born to the wife/appellant. Apart from that, it is an


admitted position that during the pendency of the divorce
                                                                 8



proceedings in trial Court, neither such prayer for performing


DNA test to find out the paternity of the child was ever made by


the husband/respondent nor any allegation in the plaint was


made by him in his pleading. Therefore, it was not open to the


High Court at the appellate stage to direct the DNA test to be


performed on the child of the wife/appellant. It is also well settled


that the presumption of legitimacy is a presumption of law. When


a child is born out of a wedlock, there is a presumption in favour


of his legitimacy and presumption of legitimacy largely depends


on the presumed fact that the parties to a marriage have


necessary access to each other when a divorce petition is filed


and specially, when the husband/respondent did not assert that


the son of the wife/appellant was a consequence of illicit
                                                               9



relationship with some third person.      The High Court, in the


impugned order, has also observed that the son of the


wife/appellant has begotten from the husband/respondent, which


cannot be disputed at this stage on the basis of mere desire of


the husband/respondent to deny such paternity of the child.


10.   For the reasons aforesaid, the impugned order is set aside


and the application of DNA test to be performed on the child of


the wife/appellant is hereby rejected.

2009 ( OCTOBER - VOL - 10) JUDIS.NIC.IN/ S.C. / FILE NAME  =35605     
TARUN CHATTERJEE, R.M. LODHA
                                         
      1



                                                     NON-
            REPORTABLE



                IN THE SUPREME COURT OF INDIA
               CIVIL APPELLATE JURISDICTION


                CIVIL APPEAL NO.7018 OF 2009
            (Arising out of SLP (C) No. 27770 of 2008)


Ramkanya Bai                                             ...Appellant


Versus


Bharatram                                                ...Respondent


                        JUDGMENT


TARUN CHATTERJEE, J.


1.   Leave granted.


2.   This appeal is directed against the Judgment and order

                th
     dated 26 of June, 2008 passed by the High Court of
                                                                2



     Madhya Pradesh at Indore Bench in IA No. 803 of 2007,


     which arose in a pending first appeal, which has been

                                                            th
     filed against the Judgment and order dated 7                of


     December, 2006 passed by the Additional District and


     Session Judge, District Mandsor, Madhya Pradesh.            In


     the impugned order in the pending first appeal, the High


     Court had directed DNA test of the child of the parties to


     be performed.


3.   The facts leading to the filing of this appeal in this Court


     are as follows :-


     The marriage of the wife/appellant was solemnized with

                                 th
the husband/respondent on 20          of April, 1999.   But after


sometime, the husband/respondent started harassing the
                                                                   3



wife/appellant on various issues and she was subjected to


cruelty and eventually, she was turned out of her matrimonial


home.   In the year 2004, the husband/respondent filed an


application being HMA No. 7(C) of 2004 under Section 13 of


the Hindu Marriage Act in the Court of Additional District and


Session Judge, District Mandsor, Madhya Pradesh.
However,


a child was born in the month of November, 2004 to the parties.


The parties entered appearance and issues were framed and

                                                               th
finally, the trial Court, by its Judgment and decree dated 7 of


December,    2006,   dismissed   the   petition   filed   by    the


husband/respondent against which, the husband/respondent


had filed an appeal before the High Court of Madhya Pradesh


at Indore Bench under Section 28 of the Hindu Marriage Act.
                                                                4



As noted hereinearlier, the said appeal is pending decision in


the High Court.


4.    In the said pending appeal, an application was made by


the husband/respondent for an order to perform DNA test of the


child born in the month of November, 2004 on the ground that


such child could not be taken to be a child born out of the


wedlock of the parties. It was the appellant who objected to this


application stating inter alia that the child was born from the


wedlock of the parties and it was also brought to the notice of


the High Court that the husband/respondent did not deny the


paternity of the child while the suit was pending before the trial


Court. The High Court, by the impugned order, allowed the
                                                                      5



said application of the husband/respondent by making the


following observation :


              "However, since the appellant has made a
             prestige issue and it appears to this Court that
             in case in DNA test if it is found that the son of
             the Respondent is from the appellant then the
             family can be re-united."




5.     On a plain reading of the impugned order, it is also evident


that   the    High    Court   has    allowed   the   prayer       of   the


husband/respondent for performing the DNA test of the child


without looking to the facts and circumstances of the present


case and without looking into the question of law that may be


raised in the matter.
                                                               6



6.    Feeling aggrieved by this Order, the wife/appellant has


come up to this Court by way of a Special Leave Petition, which


on grant of leave, was heard in presence of the learned counsel


for the parties.


7.    We have heard the learned counsel for the parties and


examined the impugned order of the High Court as well as the


Judgment of the trial Court, by which the application for grant of


divorce filed under Section 13 of the Hindu Marriage Act by the


husband/respondent was dismissed.


8.    We are unable to accept the impugned order of the High


Court.    The High Court was not justified in allowing the


application for grant of DNA test of the child only on the ground


that there will be a possibility of re-union of the parties if such
                                                                 7



DNA test was made and if it was found from the outcome of the


DNA test that the son was born out of the wedlock of the parties.


In the absence of any reason except on the ground that the


husband/respondent had made a prestige issue about the


paternity of the child, nothing could be found from the impugned


order of the High Court which could invite the Court to allow such


application.


9.    On a perusal of the application for grant of an order for


DNA test of the child, it would also be evident that there was no


allegation     made   by   the   husband/respondent   that   as       a


consequence of illicit relationship with some third person, the


child was born to the wife/appellant. Apart from that, it is an


admitted position that during the pendency of the divorce
                                                                 8



proceedings in trial Court, neither such prayer for performing


DNA test to find out the paternity of the child was ever made by


the husband/respondent nor any allegation in the plaint was


made by him in his pleading. Therefore, it was not open to the


High Court at the appellate stage to direct the DNA test to be


performed on the child of the wife/appellant. It is also well settled


that the presumption of legitimacy is a presumption of law. When


a child is born out of a wedlock, there is a presumption in favour


of his legitimacy and presumption of legitimacy largely depends


on the presumed fact that the parties to a marriage have


necessary access to each other when a divorce petition is filed


and specially, when the husband/respondent did not assert that


the son of the wife/appellant was a consequence of illicit
                                                               9



relationship with some third person.      The High Court, in the


impugned order, has also observed that the son of the


wife/appellant has begotten from the husband/respondent, which


cannot be disputed at this stage on the basis of mere desire of


the husband/respondent to deny such paternity of the child.


10.   For the reasons aforesaid, the impugned order is set aside


and the application of DNA test to be performed on the child of


the wife/appellant is hereby rejected. Considering the facts and


circumstances of the case, we request the High Court to dispose


of the pending appeal at an early date, preferably within six


months from the date of supply of a copy of this order to it.


11.   The appeal is thus allowed. There will be no order as to


costs.
                                                 1




                                     ...............
                         ............J.    [Tarun
                                     Chatterjee]




     New Delhi;         ...........................J.
     October 22, 2009                      [R. M.



Lodha]

No comments:

Post a Comment

Note: Only a member of this blog may post a comment.