The bench observed that the husband and wife both made a joint application to the Forensic Science Laboratory for conducting such a DNA test. The report of Forensic Lab has excluded the father to be the biological father of the child. Second time the test was conducted, which again confirmed that the husband was not the biological father of the child. Again at the request of the wife, DNA test was directed to be conducted at the Central Forensic Laboratory, Ministry of Home Affairs, Government of India at Hyderabad. Again the said report confirmed that the husband was not the biological father of the child.
High Court stated that it needs to be seen that since the beginning it is case of the petitioner husband that respondent No.2 child is not his child. Even in the say filed in the Trial Court, he had taken this ground. The Trial Court while deciding the application considered the presumption under section 112 of the Evidence Act. The Trial Court had considered the case of Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik & Another. Thus, it is clear that before the Trial Court, it was a defence of the husband that the child is not born to him. After considering all the aspects, the Trial Judge allowed the application and ordered to grant maintenance.
The bench noted that in the Sessions Court, the specific ground is taken about the legitimacy of the child. Not only that the petitioner has justified as to why he has not filed an application for DNA test but also relied upon the answer given by the respondent-wife that she is not ready to go for DNA test.
High Court opined that mere submission that the 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 an adverse inference against the wife.
The bench stated that the argument of husband that the he 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. Both the Courts below have rightly observed that no case is made out by the husband to show that for the period of 280 days before the delivery of child, there was no access to him with his wife.
In view of the above, the High Court dismissed the petition.
Case Title: Namdeo v. Seema
Bench: Justice Kishore C. Sant
Case No.: CRIMINAL WRIT PETITION NO. 271 OF 2017
Counsel for the petitioner: Mr. Ravindra V. Gore
Counsel for the respondent: Mr. Sandip R. Andhale