Mere Refusal By Wife To Undergo Dna Test During Cross Examination Will Not Lead To Any Adverse Presumption

Case Title:
Namdeo s/o. Digambar Giri vs. Seema a Divorced wife of Namdeo Giri & Kum. Shrawani alleged daughter of Namdeo Giri

Date of Order:
7th January, 2023

Bench:
Kishore C. Sant

Parties:
Petitioner: Namdeo s/o. Digambar Giri
Defendant: 1.Seema a Divorced wife of NamdeoGiri
2. Kum.Shrawani alleged daughter of NamdeoGiri

Facts

• The order made in Criminal Revision No. 138 of 2015 by the learned Additional Sessions Judge, Beed, dated 30.11.2016, which dismissed the revision application, is being contested in this petition. There was a revision filed against the decision and order rendered by the learned Judicial Magistrate, First Class, Ashti on September 29, 2015, in Criminal Miscellaneous Application No.38 of 2013. By the aforementioned decision, the learned JMFC ordered respondent Nos. 1 and 2, the husband and daughter, maintenance under section 125 of the Criminal Procedure Code at the rates of Rs. 2000 and Rs. 1000 per month, respectively.
• In accordance with section 125 of the Criminal Procedure Code, respondent No. 1, wife submitted a request for support on behalf of herself and her daughter, who was 5 and half months old at the time. The wife's case is that the husband neglected her and drove her out of the house on April 20, 2012. A bullock cart cost Rs. 25,000 and was wanted. In accordance with Indian Penal Code section 498-A, the wife was compelled to submit a complaint. She gave birth to a daughter on August 15, 2012. In spite of this, the petitioner-husband neglects to provide for his wife and daughter.
• The petitioner is a member of a joint family that owns 24 acres of land in Kumbe Jalgaon and 16 acres of land in Umapur, each of which has a 1/5th part owned by the husband.
• The petitioner-husband receives a yearly income of Rs. 2 lakhs from the aforementioned property. Additionally, the husband's father serves as a priest in a temple in Borgaon. The father of the spouse looks after the temple's 10 acres of land, and the family also receives a sizeable income from it.
• According to the learned Trial Court, there is insufficient evidence to prove that the husband is not the child's biological father. The Trial Court held that since the kid was born during the continuation of the marriage, it is inferred that the husband was the father because of section 112 of the Evidence Act. The spouse has failed to provide evidence that the child is born 280 days after the marriage is dissolved. In this instance, the marriage is not eventually dissolved. The petitioner-husband cited the Supreme Court's decision in NandlalWasudeoBadwaik v. Lata NandlalBadwaik& Others (2014) AIR (SC) 932 as support for his position.
• The petitioner was not satisfied with the order passed by JMFC, therefore a petition was filled in the Bombay High Court.

ISSUES RAISED

The principal claim is that he is not the biological father of the girl child born to the respondent wife and that she is not descended from him. Despite this, he made an effort to bring his wife home, but she is not yet prepared to live with him. She interacted with another person. Therefore, the petitioner-case husband's is that he is not responsible for providing maintenance.

AGRUMENTS

• The petitioner has relied on the Nandlal ruling (supra). According to the facts of the aforementioned judgement, the husband had refused to recognise the child's paternity because the wife had been estranged from him for a considerable amount of time.
• Since 1991, the husband claims, the wife and he have not had a physical relationship; the child was born years later. In the instance of the wife, she had moved in with the husband in 1996, fell pregnant at that time, and after giving birth there, went to her parents' house for recovery. The learned JMFC had given both the wife and the kid maintenance after accepting the wife's theory. After the High Court rejected the petition, the subject was brought before the Hon'ble Apex Court.
• It is clear that the husband requested a DNA test for the child during the maintenance proceedings themselves, but the request was denied. A SLP asking to send the child for a DNA test was filed in opposition to that order. The DNA test was designed to determine the child's paternity based on this. The Forensic Science Laboratory received a joint application from the husband and wife for the purpose of conducting this test. She asked the court for a retest after the Forensic Lab's results disqualified the father as the child's biological father.
• The petitioner's skilled attorney further cited the ruling in Dipanwita Roy v. Ronobroto Roy, (2015) 1 SCC 365, which again addressed the issue of presumption under section 112 of the Evidence Act. Additionally, a DNA test was performed in this instance, and it was discovered that the husband was not the child's biological father. This verdict was reached after taking into account the verdict in the Nandlal (Supra) case and other cases. In that case, the respondent-husband had requested a DNA test through the Family Court, but it had been denied.
• The petitioner also cited the court's ruling in the case of Bilal Isak Shaikh and Others vs. State of Maharashtra &Ors., 2018 DGLS (Bom.) 749, which resulted from proceedings under the Maharashtra Village Panchayats Act. In that case, the party had claimed that the candidate running for the village panchayat had four children on the day of the election and was therefore ineligible to run. It was said that a fourth child was born beyond the deadline. Due to this, it was ordered to do a DNA test.
• The decision in the matter of Ashok Kumar vs. Raj Gupta and Others, 2022(1) SCC 20, was cited by the respondents, on the other hand. Three of the deceased couple's daughters were included as defendants in the civil suit that was brought for the declaration of ownership of the property in that instance.
• The decision in Deorao Ramaji Waikar vs. Shobha Deorao Waikar and Others, 2006 (1) Mh.L.J. (Cri) 303 was then cited by the respondent. The wife requested maintenance in the aforementioned case by filing a Misc. Criminal Application. DNA testing was not a consideration in the aforementioned case.
• Therefore, as of right now, no separate application has been submitted for a DNA test, despite the impassioned claims made that the petitioner's husband is prepared to undergo one. Simply stating that the wife was asked during cross-examination if she was prepared to take the DNA test and that she refused to undergo the DNA test. would not be enough to make a negative conclusion about the wife. The only remaining query at this point is whether DNA tests can be requested solely by asking.
• His entire claim that respondent No. 2 is not his biological daughter cannot be accepted at this time for two reasons: first, neither the Trial Court nor the Revisional Court have received a separate application from him; and second, the petitioner-husband has not established a case for ordering a DNA test. The courts below have correctly noted that the husband has not proven that his wife, respondent No. 1, had no contact with him for the 280 days prior to the birth of the kid.
• Therefore, the order was dismissed by the court.

CONCLUSION

Thus, in the above case the petition claimed that he is no the biological father of the child. On the other hand, denial of respondent 1 that is his wife to take the DNA test does not conclude that wife is at fault. Therefore, the honourable court has rejected and subsequently dismissed the plaint.

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