First Appeal No. 835 of 2009

25th August, 2011

Petitioner Counsel: Mr. ROHIT SHARMA, Adv.h/for Mr A.PARCHURE
Respondent Counsel: Mrs. ANJALI JOSHI

Cases Cited:
Idicula Jacob Vs. Mariyamma, AIR 1976 Kerala 89 [Para 7,11]

JUDGMENT

JUDGMENT :- Admit.

2. With the consent of the learned counsel for the parties, this Appeal is taken up for final hearing, in view of the fact that the matter relates to the matrimonial discord.

3. Being aggrieved by the judgment and decree dated 22nd April, 2009 passed by the learned District Judge-1, Buldana dismissing the Special Marriage Petition No. 2/2005 filed by the appellant/ husband, the present First Appeal has been filed.

4. As this Appeal progressed for admission, on 27th September, 2010, this Court had made an order accepting the joint pursis filed by the parties to this Appeal to the effect that they as well as the minor child born to the respondent-wife shall undergo Deoxyribonucleic Acid Test ( henceforth referred to as the "DNA" test). Thereafter the respondent-wife retracted her consent that was given in this Court. But, again, she gave the consent for undergoing the said DNA test. Accordingly, reference was made to the Forensic Science Laboratory at Nagpur for carrying out the test, on deposit of required fees by the appellant-husband. Accordingly, DNA test was carried out and a report was received by this Court from the Laboratory. The report indicated that appellant-Gajanan is excluded to be the biological father of the minor child-Om born to respondent-wife. After the copies of the report were furnished to the parties, this Court passed a further order on 21.12.2010 in the light of the provisions of Order 41 Rules 25 and 28 of the Civil Procedure Code and directed the trial Court to record the evidence and finding about the correctness or otherwise of the DNA test report. That was done and the trial Court, then recorded the evidence and also answered the point that was referred for determination vide order dated 7.4.2011 and the finding was transmitted to this Court. The trial Court held that DNA test report was correct. Mrs. Amulya Pande, Scientist, was examined to prove the said report and she was also cross-examined by the respondent-wife. In this Court, there is no further challenge to the said finding by the respondent-wife.

5. In support of the Appeal, Mr Rohit Sharma, h/for Mr Anand Parchure, learned counsel for the appellant argued that the impugned judgment made by the trial Court deserves to be set aside in view of the DNA test report as well as the findings recorded by the trial Court pursuant to the order made by this Court and that now the petition for divorce should be decreed by this Court in this Appeal. According to him, the act of adultery by the respondent-wife with some other person than her husband, has clearly been established with the precise scientific evidence which is accepted worldwide.

6. Per contra, Mrs. Anjali Joshi, learned counsel for the respondent (appointed), argued that the said DNA report and the findings recorded by the trial Court are not correct and are required to be ignored. She further argued that five out of 15 tests match with the appellant-husband and, therefore, the possibility of the appellant being the father of the child very much exists. Furthermore, merely on the basis of suspicion, doubt or guesswork, no decree can be passed for divorce. She then argued that Rule 5 of the Bombay High Court Special Marriage Rules, 1954 (hereinafter referred to as "the Rules of 1954") has not been complied with in the instant case by the appellant-husband inasmuch as the alleged adulterer was not added as co-respondent nor the appellant was excused by the trial Court from doing so and, therefore, the petition was bad for non-joinder of the necessary party. In short, she prayed for dismissal of Appeal with costs.

7. In reply, the learned counsel for the appellant relied on the decision of the Full Bench of the Kerala High Court in the case of Idicula Jacob vs. Mariyamma reported at AIR 1976 Kerala 89; and argued that further opportunity to the appellant to comply with Rule 5 of the Rules of 1954 is required to be given and, all the more so in the instant case because of the findings of the DNA test report.

CONSIDERATION:

8. I have gone through the impugned judgment and order. I have minutely gone through the entire record and proceedings and heard learned counsel for the rival parties at length. Rule 5 of the Rules of 1954 is couched in the following terms :

"5. Co-respondent in the husband's petition - In any petition presented by a husband for divorce or judicial separation on the ground that his wife has since the solemnization of the marriage been guilty of adultery, the petitioner shall make the alleged adulterer a co-respondent to the said petition, unless he is excused from so doing by an order of the Court which may be made on any one or more of the following grounds, which shall be supported by an affidavit in respect of the relevant facts:

(i) That the respondent is leading the life of a prostitute and that the petitioner knows of no person which whom the adultery has been committed.

(ii) That the name of the alleged adulterer is unknown to the petitioner although he has made due efforts for discovery.

(iii) That the alleged adulterer is dead.

(iv) For any other sufficient reason that the Court may deem fit to consider ."

From reading of the above Rule, it is clear that the alleged adulterer is required to be added as co-respondent to the petition unless he is excused from doing so by an order of the Court. The order of the Court can be made in the contingencies mentioned in this Rule (i) to (iv). Admittedly, in the instant case, no such application was even moved by the appellant. In fact, that is one of the reasons why the petition stood dismissed. In the above factual backdrop, the following points of determination arise for my consideration :

POINTS FOR DETERMIANTION:

(I) Whether the impugned judgment dismissing the petition for divorce filed by the appellant-husband is liable to be set aside in view of the subsequent developments which took place in this Appeal?

(II) Whether the finding recorded by the learned trial Judge on 7th April, 2010 pursuant to the order dated 27.9.2010 made by this Court is legal, correct and proper?

(III) Whether the petition for divorce filed by the appellant husband is required to be dismissed outright for non-compliance of Rule 5 of the Rules of 1954 or, whether the appellant is required to be given an opportunity to comply with Rule 5 thereof?

(IV) What order ?

9. As to Point Nos. (I) & (II) :

It is not in dispute that no DNA test was carried out during the course of trial. DNA is often described as basic building block of life on earth. DNA is a substance which transmits genetic traits. Discovered by Scientists James Watson and Francis Crick; DNA was admitted as legal evidence for the first time in 1985 in England. In fact, it is providing irrefutable evidence in relation to problems relating to identity. That is why it is well recognized and accepted throughout the the world. In our country, DNA profiling is also being used in case of disputed paternity apart from the same being used for criminal investigations.

10. This Court had made an order on 21.12.2010 asking the trial Court to record a finding on DNA report received. On 7th April, 2010, the trial Court, pursuant to the said order recorded a finding holding that the DNA test report was found to be legal and proper and after affording opportunity of test of cross-examination to the respondent-wife against whom the said report was made. I have perused the finding recorded by the said Court so also the evidence of the Scientist Mrs.Amulya Pande. It is a fact that her evidence has not at all been shattered in the cross-examination. As per the settled norms, even one mismatch of the test /loci is enough to exclude the paternity. In this case, there was a mismatch of ten loci out of 15 in the blood samples and, therefore, she stated that the paternity of the appellant -Gajanan was required to be excluded beyond any doubt. I have, therefore, no doubt, in my mind that the said finding is legal correct and proper. Further there is no objection lodged to the said finding in this Appeal by the respondent-wife on any ground whatsoever. As a result the the finding dated 7.4.2010 made by the trial Judge, the impugned judgment and decree dismissing the divorce petition will have to be set aside. As a sequel, therefore, I answer Point Nos.(I) and (II) to the effect that the impugned judgment and decree is required to be set aside and further that the finding in relation to the DNA test is legal and proper.

11. As to Point No.(III):

Rule 5 of the Rules of 1954 quoted supra, permits excuse from making alleged adulterer a co-respondent to the petition with the permission of the Court on the grounds specified and for the reasons to be recorded. In the instant case, the appellant did not comply with the said Rule. However, since I have confirmed the findings on point Nos. (I) and (II) which are based on subsequent developments which took place during the pendency of this Appeal in this Court, namely, obtaining DNA test report. Thus, the scenario has undergone a change and, therefore, the said reason, in my opinion, would be good reason not to deprive the appellant-husband from complying with the Rule 5 by remitting the proceedings. That apart, the Full Bench of the Kerala High Court in Idicula Jacob's case (supra) thought it fit in the interest of justice to extend such an opportunity to the husband. I quote paragraphs 8 and 9 from the said judgment :

"8. There is evidence in the case which as the court below has observed indicates that the wife has been leading an immoral life.

9. In the above circumstances we are faced with the predicament either of upholding the dismissal of the petition or setting aside the dismissal and sending back the case for a proper application being made by the appellant for excusing him from making the corespondent a party. Considering the weight of evidence already on record which indicates prima facie very bad conduct on the part of the respondent we feel that interests of justice require that the appellant must be given an opportunity to make an application for excusing him from making the co-respondent a party and of establishing his case. We therefore set aside the order and remit the cases to the lower Court. He will be permitted to adduce fresh evidence if he wants. It will also be open to the appellant if he deems it fit to seek an amendment of the petition in the light of what is stated in this judgment. The respondent of course if she cares will also be permitted to give evidence. The case is disposed of on the above terms. There will be no order as to costs."

12. In the case at hand, there is a scientific investigation with mathematical precision indicating that the appellant is not the father of the child born to the respondent-wife. In that context, therefore, the case at hand can be said to be in the similar situation as in the said decision of Kerala High Court (supra). I, therefore, find that the interests of justice would be met if such an opportunity is offered to the appellant husband. The Point No.(III) is, therefore., answered accordingly and the appellant-husband is given opportunity to comply with Rule 5 of the Rules of 1954. Consequently, the Divorce Petition will have to be remitted to the trial Court. In that view of the matter I make the following order :

ORDER

(i) The First Appeal No. 835 /2009 is partly allowed.

(ii) The impugned judgment and decree dated 22nd April,2009 passed by learned District Judge-1, Buldana is set aside.

(iii) The proceedings of Special Marriage Petition No.2/2005 are remanded to the District Judge-1, Buldana for hearing and fresh disposal in accordance with law, permitting the appellant to comply with Rule 5 of the Rules of 1954. Needless to say that the respondent-wife is entitled to object to any such application or as the case may be, and which shall be dealt with by the Court below in accordance with law.

(iv) It is made clear that the appellant shall clear all arrears of maintenance, if any, and shall continue to pay the same as ordered by this Court, till disposal of the Special Marriage Petition No. 2/2005, after remand.

(v) The District judge is directed to hear and decide the proceedings after remand, as expeditiously as possible and, in any case, within a period of six months. The appellant shall carry writ of this Court to the trial Court.

(vi) The parties hall appear before the lower Court/trial Court on 26 th September,2011.

Appeal partly allowed.