LexDIPANWITA ROY versus RONOBROTO ROY
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• [2014] 11 S.C.R. 553 DIPANWITA ROY v. RONOBROTO ROY (Civil Appeal No. 9744 of 2014) OCTOBER 15, 2014 [JAGDISH SINGH KHEHAR AND R.K. AGRAWAL, JJ.] Hindu Marriage Act, 1955 - s. 13 - Divorce petition under A B - Husband seeking divorce on ground of infidelity - On application of husband, direction issued by High Court for C holding of DNA test of the husband and the child born to wife - Propriety - Held: Depending on facts and circumstances of a case, it is permissible for a Court to direct the holding of DNA examination - On facts, but for the DNA test, it was impossible for the husband to establish and confirm the D assertions made in the divorce petition, alleging infidelity - Direction issued by High Court therefore justified - However, wife given liberty to comply with or disregard the said direction of High Court in order to preserve her right of individual privacy to the extent possible, without sacrificing the cause of E justice - Evidence Act, 1872 - s. 112 and s. 114, Illustration (h). Disposing of the appeal, the Court HELD:1.1. Proof based on a DNA test would be F sufficient to dislodge a presumption under Section 112 of the Indian Evidence Act. Depending on the facts and circumstances of the case, it would be permissible for a Court to direct the holding of a DNA examination, to determine the veracity of the allegation(s), which G constitute one of the grounds, on which the concerned party would either succeed or lose. If the direction to hold such a test can be avoided, it should be so avoided. The 553 H 554 SUPREME COURT REPORTS [2014] 11 S.C.R. • A reason is that the legitimacy of a child should not be put to peril. [Paras 9, 10) (570-E-F; 570-F-H] 1.2. In the instant case, but for the DNA test, it would be impossible for the respondent-husband to establish and confirm the assertions made in the pleadings. 8 Therefore, the direction issued by the High Court was fully justified. DNA testing is the most legitimate and scientifically perfect means, which the husband could use, to establish his assertion of infidelity. This should simultaneously be taken as the most authentic, rightful C and correct means also with the wife, for her to rebut the assertions made by the respondent-husband, and to establish that she had not been unfaithful, adulterous or disloyal. If the appellant-wife is right, she shall be proved to be so. [Para 11] [571-D-E] 0 Bhabani Prasad Jena vs. Convenor Secretary, Orissa State Commission for Women and another (2010) 8 SCC 633: 201 O (9) SCR 457; and Nandlal Wasudeo Badwaik vs. Lata Nand/al Badwaik and another (2014) 2 SCC 576: 2014 E (1) SCR 120 - relied on. Chilukuri Venkateshwarly vs. Chilukuri Venkatanarayana 1954 SCR 424; Gautam Kundu vs. State of West Bengal and another (1993) 3 SCC 418: 1993 (3) SCR 917; Kamti Devi and another v. Poshi Ram AIR 2001 SC 2226: 2001 (3) SCR F 729; Sham Lal @ Ku/deep vs. Sanjeev Kumar and others (2009) 12 SCC 454: 2009 (5) SCR 1049 - referred to. G H Karapaya Servai v. Mayandi AIR 1934 PC 49 - referred to. 2. However, while upholding the order passed by the High Court, it is just and appropriate to record a caveat, giving the appellant-wife liberty to comply with or disregard the order passed by the High Court, requiring • DIPANWITA ROY v. RONOBROTO ROY 555 the holding of the DNA test. In case, she accepts the A direction issued by the High Court, the DNA test will determine conclusively the veracity of accusation levelled by the respondent-husband, against her. In case, she declines to comply with the direction issued by the High Court, the allegation would be determined by the B 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. This course has been adopted to preserve the right of individual privacy to the extent possible, without sacrificing the c cause of justice. [Para 12] [571-F-H; 572-A, DJ Case Law ·Reference: AIR 1934 PC 49 referred to Para 8 1954 SCR 424 referred to Para 8 1993 (3) SCR 917 referred to Para 8 2001 (3) SCR 729 referred to Para 8 2009 (5) SCR 1049 referred to Para 8 2010 (9) SCR457 relied on Para 9 2014 (1) SCR 120 relied on Para 9 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 9744 of 2014. From the Judgment and Order dated 06.12.2012 of the High Court at Calcutta in C.O. No. 3590 of 2012. D
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