KAMLA PATEL Vs. GOVIND BAHADUR

JUDGEMENT

(1.) The present petition has been filed by the petitioner-wife, challenging the order Annexure-P2 dtd. 18/8/2022 passed by the Family Court Jabalpur, whereby the Family Court has allowed application of the respondent-husband to conduct Deoxyribonucleic Acid Test (DNA Test) to determine whether the girl child born during wedlock of the parties to the marriage is biological child of the respondent-husband, or not.

(2.) The counsel for the petitioner has vehemently argued that to protect right to privacy, the Family Court could not have issued directions for DNA test of the child to determine that whether she is biological daughter of the respondent-husband, who has filed divorce petition before the Family Court, because it would invade the right of privacy of the individual and also create unnecessary clouds over legitimacy of the child which are not in the interest of the child nor in the interest of the parties. By placing reliance on judgment of the Hon'ble Supreme Court in the case of Aparna Ajinkya Firodia vs Ajinkya Arun Firodia, 2024 (7) SCC 773, it is argued that there is presumption of legitimacy as per Sec. 122 of Indian Evidence Act and such presumption cannot be lightly interfered with or demolished and the Courts cannot order DNA test as a matter of routine course only at the asking of one party to the marriage. It is argued that the right to privacy, autonomy and identity of the children under the convention on child rights have to be respected and best interests of the child have to be secured by the Courts while giving such directions. No child can be branded as illegitimate which casts shadow on identity of the child and therefore the impugned order deserves to be set aside. It is further argued that the conclusive presumption available under Sec. 112 of the Evidence Act can be rebutted by use of DNA evidence only when there are compelling circumstances linked with access of the parties to each other which cannot be liberally used at a drop of hat on mere of asking of one of the parties to the marriage and therefore the impugned order deserves to be set aside.

(3.) Per contra, it is argued by learned counsel for the respondent husband that the present petition has no legs to stand because it is filed with suppression of material fact. It is argued that in the divorce petition filed by the respondent husband sufficient pleadings are made in the matter of non-access in terms of Sec. 112 of Evidence Act and also that the present divorce petition is the third divorce petition between the parties. The first divorce petition was filed in the year 2019 and the parties appeared before the Family Court and stated that they would file a fresh application seeking divorce with mutual consent because there has been settlement between the parties to seek divorce by mutual consent. Thereafter, the second application was filed in the year 2019 itself under Sec. 13-B of Hindu Marriage Act, 1955 and the wife appeared on first motion on 14/10/2019 but despite repeated opportunities given by the Family Court did not appear in second motion and ultimately the Family Court closed the divorce petition on account of non-appearance of the wife on 2/3/2021. Thereafter, this third divorce petition has been filed by the respondent-husband.