Case BriefsHigh Courts

Tripura High Court: T. Amarnath Goud, J., dealt with a petition wherein the case of the petitioner was that the respondent was not the son of the deceased Kshitish Ghosh and under the garb of certain Wills the respondent was selling the properties which were in dispute before the trial court. Petition further prayed to reconsider DNA testing approval which was dismissed earlier.

The counsel for the petitioner submitted that the first respondent was alienating the properties to third parties and nothing remains for the petitioners who were the siblings if they succeeded before the trial court. Counsel for the first respondent who claimed to be the son of the deceased Kshitish Ghosh and his spouse Fulu Rani Ghosh submitted that in his school records, and birth certificate and all documents indicated that the respondent was the son of the deceased.

The Court observed that it was not disputed that the records and certificates produced by the respondent were in the knowledge of the petitioner. The only attack of the petitioner-plaintiffs before the trial court was challenging the Will and to declare the petitioner-plaintiffs as legal heirs and not the first respondent, Partha Ghosh.

The Court held that unless and until there was a challenge to the birth documents and school register to show that Kshitish Ghosh was not the father of the first respondent, Partha Ghosh, there cannot be any direction to get the DNA of first respondent tested to declare whether he was the son of the deceased Kshitish Ghosh and Fulu Rani Ghosh or not. The Court was of the view that it was not the aspect to be decided by the Court; however, petitioners-plaintiffs are at liberty to move applications before the concerned court seeking appropriate remedy in support of their claim to protect the property.

The Court dismissed the petition not intending to interfere in the matter.[Nirmal Ch Ghosh v. Partha Ghosh, 2022 SCC OnLine Tri 8, decided on 04-01-2022]


Suchita Shukla, Editorial Assistant has reported this brief.


For Petitioner(s) : Mr T. D. Majumder

For Respondent(s): Mr S. Lodh

Case BriefsSupreme Court

Supreme Court: The bench of Justice R. Subash Reddy and Hrishikesh Roy*, JJ has held that in a declaratory suit, where ownership over coparcenary property is claimed, the plaintiff cannot be subjected to the DNA test against his wishes.

“When the plaintiff is unwilling to subject himself to the DNA test, forcing him to undergo one would impinge on his personal liberty and his right to privacy.”

The Court explained that DNA is unique to an individual (barring twins) and can be used to identify a person’s identity, trace familial linkages or even reveal sensitive health information. The Court should therefore examine the proportionality of the legitimate aims being pursued, i.e whether the same are not arbitrary or discriminatory, whether they may have an adverse impact on the person and that they justify the encroachment upon the privacy and personal autonomy of the person, being subjected to the DNA Test.

The Court was deciding the case where, in a declaratory suit for ownership over coparcenary property, the plaintiff had already adduced ‘enough’ documentary evidence to prove relationship between the parties. The Court noticed that in such cases, the Court’s decision should be rendered only after balancing the interests of the parties, i.e, the quest for truth, and the social and cultural implications involved therein.

“The possibility of stigmatizing a person as a bastard, the ignominy that attaches to an adult who, in the mature years of his life is shown to be not the biological son of his parents may not only be a heavy cross to bear but would also intrude upon his right of privacy.”

The Court held that in such kind of litigation where the interest will have to be balanced and the test of eminent need is not satisfied our considered opinion is that the protection of the right to privacy of the Plaintiff should get precedence.

It was, hence, held that the respondent cannot compel the plaintiff to adduce further evidence in support of the defendants’ case. In any case, it is the burden on a litigating party to prove his case adducing evidence in support of his plea and the court should not compel the party to prove his case in the manner, suggested by the contesting party.

Important Rulings

Banarsi Dass v. Teeku Dutta, (2005) 4 SCC 449

DNA test is not to be directed as a matter of routine but only in deserving cases. The presumption of legitimacy is this, that a child born of a married woman is deemed to be legitimate, it throws on the person who is interested in making out the illegitimacy, the whole burden of proving it. The law presumes both that a marriage ceremony is valid, and that every person is legitimate. Marriage or filiation (parentage) may be presumed, the law in general presuming against vice and immorality.

Bhabani Prasad Jena v. Convenor Secretary, Orissa State Commission for Women, (2010) 8 SCC 633

The discretion of the court must be exercised after balancing the interests of the parties and whether a DNA Test is needed for a just decision in the matter and such a direction satisfies the test of “eminent need”.

Dipanwita Roy v. Ronobroto Roy, (2015) 1 SCC 365

In the said case the husband alleged infidelity against his wife and questioned the fatherhood of the child born to his wife. In those circumstances, it was held that when the wife had denied the charge of infidelity, the Court opined that but for the DNA test, it would be impossible for the husband to establish the assertion made in the pleadings. In these facts, the decision of the High Court to order for DNA testing was approved by the Supreme Court.

[Ashok Kumar v. Raj Gupta, 2021 SCC OnLine SC 848, decided on 01.10.2021]

___________________________________________________________________________________

Counsels:

For appellant-plaintiff: Advocate Sunieta Ojha

For respondent – defendants: Senior Advocate Rameshwar Singh Malik


*Judgment by: Justice Hrishikesh Roy

Know Thy Judge | Justice Hrishikesh Roy

Case BriefsHigh Courts

Kerala High Court: A.Muhamed Mustaque and Kauser Edappagath, JJ., addressed an interesting question of law,

Can a direction to undergo DNA Test be given in proceedings for divorce to establish the husband’s assertion of infidelity and adultery on the part of the wife without the child in the party array?

The husband of respondent 1 had preferred for dissolution of marriage on the ground of cruelty, desertion and adultery and for recovery of money and gold ornaments while respondent 1 had preferred for recovery of money at the Family Court. The main allegation of the petitioner was that his wife had been living adulterous life with respondent 2 (brother-in-law of respondent 1) and the child born to her was that of respondent 2.

To prove infidelity and adulterous act on the part of his wife, the petitioner had taken a specific plea that he was suffering from infertility and incapable to have a child. An application to conduct DNA test had been filed by the petitioner to prove that he was not the father of the child, however, the request was dismissed by the Court below on the ground that the child was a necessary party to the petition and without the child on the party array, its paternity and legitimacy could not be determined.

Presumption of Legitimacy

Placing reliance on Section 112 of the Indian Evidence Act, the wife of the petitioner argued that once the validity of marriage is proved, there is strong presumption about the legitimacy of children born from that wedlock and the presumption could only be rebutted by strong and conclusive evidence. Similarly, non access between the husband and wife is the only way to dislodge the conclusive presumption enjoined by Section 112 of the Evidence Act, hence, the prayer for DNA test could not be allowed in the absence of strong prima facie proof of non access.

Allegation of Infidelity

 Noticeably, after 22 days of the marriage the petitioner had to left for his place of work at Ladakh as he was employed at military service and during those 22 days or thereafter there was no physical relationship between them due to the non co-operation of respondent 1. The definite case of the petitioner was that he was suffering from infertility and there was no possibility for him to have a child.

Opinion of the Court

In Dipanwita Roy v. Ronobroto Roy, (2015) 1 SCC 365, the Supreme Court had held that, “DNA testing is the most legitimate and scientifically perfect means, which the husband could use, to establish his assertion of infidelity. This should simultaneously be taken as the most authentic, rightful and correct means also with the wife, for her to rebut the assertions made by the respondenthusband, and to establish that she had not been unfaithful, adulterous or disloyal. If the appellant-wife is right, she shall be proved to be so.”

Similarly, in Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik, (2014) 2 SCC 576, the Supreme Court took the view that the result of a genuine DNA test is scientifically accurate and when there is conflict between a conclusive proof envisaged under law and a proof based on scientific advancement accepted by the world community to be correct, the latter must prevail over the former.  

Relying on the decisions of the Supreme Court, the Court opined that it would be permissible for a court to direct the holding of a DNA examination, to determine the veracity of the allegations constituting the grounds for divorce if a strong prima facie case is made out.

Can legitimacy of a child be determined without the child being on the party array?

The Bench explained that there are two tests for determining the question whether a particular party is a necessary party to the proceedings or not:

  • There must be a right to some relief against such party in respect of the matter involved in the proceedings in question; and
  • It should not be possible to pass an effective decree in the absence of such a party.

Hence, since original petition was not one under S.7 (1) r/w Explanation (e) of the Family Courts Act for a declaration as to the legitimacy of any person and it was a petition only for dissolution of marriage u/s 13 of the Hindu Marriage Act, the Bench held that the presence of child does not have any bearing whatsoever in deciding the petition for dissolution of marriage on merit. Answering the question referred in affirmative, the Bench stated,

“The illegitimacy or paternity of the child is only incidental to the claim for dissolution of marriage on the ground of adultery or infidelity. The child’s presence is not necessary to adjudicate the relief claimed.”

Conclusion

In the backdrop of above, the Bench allowed the petitioner to conduct DNA test of the petitioner as well as the son of the respondent 1. [XXX v. XXX, 2021 SCC OnLine Ker 3458, decided on 14-09-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Petitioner: Advocate Sindhu Santhalingam and Advocate A.D.Shajan

For the Respondents: Advocate Brijesh Mohan, Advocate Shajin S.Hameed and Advocate Resmi G. Nair

Case BriefsSupreme Court

“While the crime is important, the criminal is equally important insofar as the sentencing process is concerned.”

-Madan B. Lokur, J.

Supreme Court: A Bench comprising of Madan B. Lokur, S. Abdul Nazeer and Deepak Gupta, JJ. commuted the death sentence awarded to the review petitioner to life imprisonment. The petitioner was convicted under Sections 376(2)(f), 377 and 302 IPC for rape and murder of a 3- year old girl. He was awarded death sentence by the trial court which was confirmed by Bombay High Court. Aggrieved thereby, he preferred an appeal before the Supreme Court which was dismissed. Now, the petitioner was before the Court for review of its judgment dismissing his appeal.

The Court was concerned with the order of death sentence awarded to the petitioner and focused its discussion on certain points including:

Circumstantial evidence

According to the petitioner, the case was based on circumstantial evidence. The Court held, “ordinarily, it would not be advisable to award capital punishment in a case of circumstantial evidence. But there is no hard and fast rule.”

Reform, rehabilitation and re-integration into society

Harking back to Bachan Singh v. State of Punjab, (1980) 2 SCC 684, the Court held that “Bachan Singh requires us to consider the probability of reform and rehabilitation and not its possibility or its impossibility… it is the obligation on the prosecution to prove to the court, through evidence, that the possibility is that the convict cannot be reformed or rehabilitated.”

DNA evidence

The Court laid stress on the usefulness of the advanced scientific technology and advised the prosecution to take advantage of it in such cases as the present one and stated, “where DNA profiling has not been done or it is held back from the Trial Court, an adverse consequence would follow for the prosecution.”

Prior history of the convict or criminal antecedents

After considering various earlier decisions, the Court held that mere pendency of one or more criminal cases against a convict cannot be a factor for consideration while awarding sentence.

In the instant case, the Court was of the opinion that the prosecution was remiss in not producing the available DNA evidence which lead to an adverse presumption against the prosecution. The trial court was in error in taking into consideration, for the purposes of sentencing, the pendency of two similar cases against the petitioner. Looking at the crimes committed by the appellant and the material on record including his overall personality and subsequent events, the Court commuted the sentence of death awarded by the petitioner while directing that he should not be released from custody for the rest of his normal life. the review petition was disposed of accordingly. [Rajendra Pralhadrao Wasnik v. State of Maharashtra,2018 SCC OnLine SC 2799, decided on 12-12-2018]

Case BriefsHigh Courts

Delhi High Court: A Division Bench comprising of S. Muralidhar and V. Kameswar Rao, JJ. dismissed an appeal filed against the judgment of the trial court whereby the appellant was convicted under Sections 325, 363 and 376(2) IPC along with Section 6 of the Protection of Children from Sexual Offences Act, 2012.

The appellant was convicted for raping an 8 years old minor girl. He was alleged to have kidnapped her while she was playing with her younger sisters and thereafter commit rape and aggravated penetrative sexual assault upon her. The appellant was tried and convicted by the trial court for the offences mentioned above. Aggrieved by the same, the appellant filed the instant appeal.

The High Court perused the record and was of the view that the order impugned does not call for interference. The evidence against the appellant proved his guilt beyond reasonable doubt. As far as the testimony of the victim was concerned, the Court referred to Dattu Ramrao Sakhare v. State of Maharashtra, (1997) 5 SCC 341 and observed that the only precaution which the Court has to bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one. In the present case, the Court was of the view that victim’s testimony inspired confidence as to its credibility. Furthermore, the evidence of matching of appellant’s DNA with the semen stains found on victim’s pyjama was more than a clinching evidence to prove appellant’s guilt. In such circumstances, the Court affirmed the order impugned and dismissed the appeal. [Gopi Nisha Mallah v. State (NCT of Delhi),2018 SCC OnLine Del 11021, dated 04-09-2018]

Case BriefsHigh Courts

Bombay High Court: A Single Judge Bench comprising of Manish Pitale, J., reversed the judgment of the trial court where the appellant was convicted for an offence punishable under Section 376 IPC and sentenced to 5 years of rigorous imprisonment.

The appellant was accused of committing forcible sexual intercourse on the prosecutrix on two occasions by which she became pregnant. It was alleged that the appellant sexually abused the prosecutrix on a certain day, and after that again when the prosecutrix went to his home to watch television while he was alone. The said incidents were disclosed by the prosecutrix to her mother after she became pregnant, and an FIR was registered against the appellant. The appellant denied the allegations, but the trial court convicted him under Section 376. The appellant contended that the prosecutrix was pregnant with the child of her cousin with whom she stayed for 5-6 months. It was submitted that the appellant was falsely implicated in the case.

The High Court perused the record and found the conviction of the appellant to be unsustainable. It was noted that the conviction was based solely on the evidence of the prosecutrix. There were discrepancies in her statement. She told her mother that the appellant committed the act forcibly, while the doctor was told that it was committed on false pretext of marriage. Further, it was admitted by her that she had a cousin of same age as alleged by the appellant. In such circumstances, and on categorical stand of the appellant that he was falsely implicated, the Court held that the Investigating Officer ought to have conducted DNA test of the girl child born to the prosecutrix, for ascertaining her paternity. In absence of clear proof against the appellant, the High Court set aside the impugned judgment. The appeal was, thus, allowed. [Ganesh Pralhad Sontakke v. State of Maharashtra, 2018 SCC OnLine Bom 1795, dated 25-07-2018]

Case BriefsHigh Courts

Delhi High Court: A Division Bench of Gita Mittal and I.S. Mehta JJ. evaluated a plea of legitimacy of a child by the husband against the wife. The child was born in October 2013 and the husband contended that he did not have access to his wife since the beginning of the year 2013, whereas, the wife’s contention was that the DNA test of the child cannot be made on a bald allegation of infidelity. The case revolved around the rebuttable presumption of legitimacy attached to a child born of a married woman during subsistence of marriage or within 280 days of its severance.

The High Court found from the pleadings that the husband had made categorical assertions to the paternity of the child in public records and before the family court. It is only later in the pleadings that the husband had made an equivocal/unclear allegation of infidelity. The court held such an allegation alone could not call in question the legitimacy of the child. The Court held that the standard of proof required to satisfy Section 112 of the Evidence Act, was very high and that DNA test could not be ordered on a mere allegation by one of the spouses.

The Court then enlisted established principles to be kept in a judicial mind while deciding with such cases: –

DNA Testing

  • A rebuttable presumption of legitimacy is attached to a child born of a married woman during a subsistence of marriage or within 280 days of its severance. (Section 112 of the Evidence Act; Kamti Devi v. Poshi Ram, (2001) 5 SCC 311 para 11; Banarsi Dass v. Teeku Datta, (2005) 4 SCC 449 para 10; Sham Lal v. Sanjeev Kumar, (2009) 12 SCC 454 para 10)
  • The DNA test is not to be directed as a matter of routine. Such direction can be given only in deserving cases. (Banarsi Dass v. Teeku Datta, (2005) 4 SCC 449 para 14)
  • The court must exercise its discretion only after balancing the interests of the parties and on due consideration whether for a just decision in the matter, DNA test is eminently needed. (Sharda v. Dharampal, (2003) 4 SCC 493 para 80; Bhabani Prasad Jena v. Orissa State Commission for Women, (2010) 8 SCC 633)
  • There must be a strong prima facie case in that the husband must establish non-access in order to dispel the presumption arising under Section 112 of the Evidence Act. (Goutam Kundu v. State of West Bengal, (1993) 3 SCC 418)
  • The court would exercise discretion, only after balancing the interests of the parties and on consideration as to whether for a just decision in the matter the DNA test is imminently needed i.e. as to whether it is not possible for the court to reach the truth without use of such test. For so concluding, the court has to consider materials placed by both parties and the test shall not be ordered in routine for a roving enquiry.

Access

  • “Access” and “non-access” mean the existence or non existence of opportunities for sexual intercourse; it does not mean actual “cohabitation”. (Karapaya Servai v. Mayandi, AIR 1934 PC 49; Goutam Kundu v. State of West Bengal, (1993) 3 SCC 418 para 24)

Burden of legitimacy

  • In a civilised society it is imperative to presume the legitimacy of a child born during continuation of a valid marriage and whose parents had “access” to each other. (Sham Lal v. Sanjeev Kumar, (2009) 12 SCC 454 para 42)
  • Burden of proving illegitimacy is on the person who makes such allegation. (Banarasi Dass v. Teeku Datta, (2005) 4 SCC 449 para 10)
  • The party who wants to dislodge the conclusiveness has the burden to show a negative, not merely that he did not have the opportunity to approach his wife but that she too did not have the opportunity of approaching him during the relevant time. (Kamti Devi v. Poshi Ram, (2001) 5 SCC 311 para 10)

Presumption of legitimacy

  • The presumption under Section 112 of the Indian Evidence Act can only be displaced by a strong preponderance of evidence, and not by a mere balance of probabilities or on the basis of slender material. The standard of proof in such cases must be of a degree in between the preponderance of probability and proof beyond reasonable doubt by way of abundant caution and has a matter of public policy. (Kamti Devi v. Poshi Ram, (2001) 5 SCC 311 paras 11 & 12)
  • The presumption can only be rebutted by a strong, clear, satisfying and conclusive evidence. The presumption cannot be displaced by mere balance of probabilities or any circumstance creating doubt. (Sham Lal v. Sanjeev Kumar, (2009) 12 SCC 454 para 39)
  • The verdict of displacement of the presumption shall not be rendered on the basis of slender materials. If a husband and wife were living together during the time of conception but the DNA test revealed that the child was not born to the husband, the conclusiveness in law would remain irrebuttable. (Kamti Devi v. Poshi Ram, (2001) 5 SCC 311 para 11; Banarasi Dass v. Teeku Datta, (2005) 4 SCC 449 para 13)
  • The courts must be inclined towards upholding the legitimacy of the child unless the facts are so compulsive and clinching as to necessarily warrant a finding that the child could not at all have been begotten to the father and as such a legitimation of the child would result in rank injustice to the father. (Dukhtar Jahan v. Mohd. Farooq, (1987) 1 SCC 624).

[W v. H, 2016 SCC OnLine Del 4786, decided on 26.08.2016]