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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]

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