BRIJ NANDAN RAM Vs. RAKHI KUMARI

JUDGEMENT

(1.) Heard the learned Senior Counsel Mr. T.N. Maitin on behalf of the petitioner and Learned Counsel Mr. Binod Kumar Singh on behalf of the respondents. This application under Article 227 of the Constitution of India has been filed by the husband applicant-petitioner against the order dated 18.4.2011 as contained in Annexure-5 passed by Principal Judge, Family Court, Patna in Matrimonial Case No. 53 of 2005 whereby the learned Family Court rejected the application of the petitioner for DNA test of respondent No. 1 (wife) and her daughter.

(2.) It appears that the petitioner has filed the-said Matrimonial Case No. 53 of 2005 for dissolution of marriage by a decree of divorce on the ground of adultery and cruelty as provided under Sections 13(i) and 13(i)(a) of the Hindu Marriage Act, 1955. According to the petitioner respondent. No. 1 La. his wife had illicit relation with her brother-in-law, respondent No. 2 and she was living in adultery with him and out of that adulterous relationship the daughter was born on 25.1.2004 at Ranchi. Respondent No. 1 wife denied the allegation.

(3.) The learned Senior Counsel submitted that the petitioner filed the application for DNA test to prove that in fact he is not the father of female child rather the respondent No. 2 is the father but the learned court below rejected the prayer by the impugned order saying that, it is not maintainable. Therefore, the learned court below has not exercised a jurisdiction vested in it by law. The Learned Counsel further submitted that the primary duty of a court is to see that truth is arrived at. According to the Learned Counsel although there is no provision in Hindu Marriage Act or Indian Evidence Act to compel a party for DNA test but court can in suitable cases exercise its inherent jurisdiction and this principle has already been decided by the Apex Court. The Learned Counsel relied upon Sharda vs. Dharampal, 2003 4 SCC 493 and submitted that the court has the jurisdiction to order for DNA test and in the said case the Apex Court did not interfere the order of the High Court directing for DNA test. The Learned Counsel relied upon various paragraphs of the said decision and placed the same in extenso. The Learned Counsel also relied upon a decision of the Andhra Pradesh High Court reported in AIR 2010 Andhra Pradesh 172 and submitted that in Andhra Pradesh case also the same very question was examined and the Andhra Pradesh High Court relying upon the case of Sharda vs. Dharampal held that the High Court under inherent power can compel a party to undergo DNA test to find truth of the matter and to clear misunderstanding between the parties.