The husband has filed a divorce case against his wife. His case is that the marriage between the parties was Patna High Court solemnized on 19th February 2012 as per Hindu rites and custom. After solemnization of marriage, both the parties lived together till for 14 days. Thereafter, the husband went to Chandigarh where he was in job. The wife along with her father had visited at the place of husband and from there she came back. The wife gave birth to a male child. The case of the husband is that there was no physical relationship between the parties after 03.03.2012 on which he left the wife and proceeded to Chandigarh. The wife delivered a male child on 17.01.2013 which covers a period of 10 ½ months from the last meeting of the parties. This is sufficient to establish the case of adultery. The wife defendant on the other hand filed rejoinder and stated that there is no allegation of adultery in the divorce application as the husband has not named the person with whom his wife had allegedly cohabited.
The husband has stated that a male child born on 17.01.2013 without any physical relationship with the wife during the prescribed medical time i.e. 03.03.2012 to 14.08.2012. The husband in order to determine the paternity of the said child, wanted to resolve the matter outside the Patna High Court, but the opposite party and his father did not agree and so a prayer was made for paternity test i.e. D.N.A. test of the husband, wife and her son. The petitioner filed rejoinder on 19th January 2015 and denied the assertion of the respondent-husband. She has stated that her marriage was solemnized on 19.02.2012 and after solemnization of marriage they lived together till March 2012. She however does not deny the birth of male child. The claim, in respect of the infidelity of the wife, and to establish that the son born to her was not his, the husband moved seeking a DNA test of himself (the husband) and the male child born to the wife. The purpose seems to be, that if the DNA examination reflected, that the male child born to the wife, was not the child of husband, the allegations made by the husband, would stand substantiated. The wife filed objections, categorically asserting, that the factual position depicted in the application filed by the husband was false, frivolous, vexatious and motivated. It was asserted that the allegations were designed in a sinister manner, to cast a slur on the reputation of the wife.
In case wife declines to comply with the direction issued by the the
High Court, the allegation would be determined by the concerned Court, by drawing
a presumption of the nature contemplated in Section 114 of the Indian Evidence Act,
especially, in terms of illustration (h) thereof.
The
Patna High Court decided person nor made the divorce case with specific
pleading of adultery against wife. This contention is not sustainable in view
of the fact that the husband immediately after marriage went to Chandigarh
where the wife also visited and so it was not possible for the husband to give
details of adultery in the divorce application. The medical examination in such
circumstance would be conclusive for adjudication of plea of adultery as
asserted by the husband. The Court below has not committed any jurisdiction error
in directing the wife, her male child and the husband to undergo for D.N.A.
test at the cost of the husband.
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