Merely Saying Wife Refused DNA Test Of Child During Cross Examination Not Sufficient To Draw Adverse Inference: Bombay High Court

Justice Kishore C. Sant of the Aurangabad bench said: “Mere submission that question was asked in cross-examination to wife that whether she is ready to go for DNA test, where she has answered that she is not ready itself would not be sufficient to draw adverse inference against the wife.”

The wife had filed an application under section 125 Cr.P.C. for maintenance for herself and her five-year-old daughter. She alleged that her husband did not maintain her well and threw her out of the house.

The husband alleged that the girl-child of the wife is not his biological daughter. Therefore, he is not liable to pay maintenance. The Trial Court held that there isn’t sufficient evidence to show that the husband is not the biological father of the child. The Trial Court relied on section 112 of the Evidence Act to hold that the child is born during the subsistence of the marriage and therefore is presumed to the husband’s.

The revision petition was dismissed by the Sessions Judge. Hence he approached the High Court.

Advocate Ravindra Gore for the husband relied on Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik & Anr. to support his case. The court noted that in that case, both husband and wife had jointly applied for DNA testing and then several rounds of retesting were undertaken on orders of the Apex Court. After this, the case was decided in favour of the husband.

However, in the present case, no separate application has been filed by the husband for DNA testing, the court said.

The court noted that even in the sessions court, the husband said that he is ready for DNA test and if the DNA report goes against him he would not continue with the revision petition. However, he still did not file any separate application for DNA testing, it added.

Both trial and revisional courts specifically had observed that no case was made out by the husband that he had absolutely no access to his wife for the period of 280 days before the delivery of child.

The high court noted that though arguments were advanced before it that the petitioner-husband is ready to go for DNA test, no separate application has been filed for it.

The question is whether at this stage DNA testing can be ordered, the court said. The court answered that no case is made out by the husband to direct DNA testing.

“His entire argument is that the respondent No.2 is not his biological daughter cannot be now accepted, firstly, there is no separate application filed by him neither in the Trial Court, nor before the Revisional Court; secondly, no case is made out by the petitioner-husband to direct DNA test," it added.

Therefore, the court upheld the lower courts’ finding that no case is made out by the husband to show that the girl is not his biological daughter.

Case no. – Criminal Writ Petition No. 271 Of 2017

Case Title – Namdeo s/o. Digambar Giri v. Seema

Citation: 2023 LiveLaw (Bom) 16

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