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The Allahabad High Court in its recent judgment observed that D.N.A. Test is the most reliable and efficient means for a husband to establish his claim of adultery.
The Bench of Justice Vivek Agarwal observed that,
“This should be given significance as it is the most reliable, efficient, and righteous process also with the wife, for her to prove the claims made by the husband and to prove that she was not disloyal, unfaithful or adulterous.”
The matter before the Court-
The matter before the Court was if a husband has filed a divorce petition under Section 13 of the Hindu Marriage Act, 1955 on the terms of adultery, can the court order the wife to have a DNA test or not to have it?
Also, if she opts for having a DNA Test, then the results of the test could be able to determine the conclusive proof that accusations made by her husband were right?
And also, if the wife denies having a DNA Test, then can a court presume against the wife, main issue is, whether the report of a DNA Test can be seen as just a piece of expert evidence or can be claimed as a substantive as well as conclusive proof.
Facts of the Case-
The wife (Neelam) filed a petition before the High Court under Article 227 of the Constitution of India in which she challenged the order of the Additional Principal Judge, Family Court Hamirpur, passed on 22.09.2018, under Section 13 of the Hindu Marriage Act, 1955.
The Respondent Husband submitted before the court that both of them were not living together since 15.01,2013 and there had been no consummation of the marriage between the two after that.
The husband has also given customary divorce to the petitioner wife on 25.06.2014 and was paying maintenance to her since then. The wife gave birth to the male child on 26.01.2016 in her paternal house.
The Petitioner's wife filed her objections in which she had opposed the application filed by her respondent-husband who asked her for having a DNA Test and argued that no legal provision is given in the application.
She refused the fact that no consummation of marriage took place between them since 15.01.2013 and claimed that she was tortured by her husband and he also drove her out of his house, and then she gave birth to a male child on 26.01.2016.
The petitioner also mentioned the Plea of Presumption under section 112 of the Indian Evidence Act.
What the Court Observed?
The High Court observed that the Family Court took a reference to the verdict given by the Supreme Court in the case of Dipanwati Roy Vs. Ronobroto Roy, 2015 (1) SCC D 39 (SC).
The Supreme Court observed that- “This Court clearly concludes that proof based on a DNA test would be given significance as a conclusive and substantive proof as given under Section 122 of the Indian Evidence Act.”
The High Court dismissed the petition.
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