Case Note & Summary
The appellant-husband Gajanan Deshpande filed a divorce petition under the Hindu Marriage Act, 1955, alleging that his wife Smita Deshpande committed adultery and gave birth to a child named Om who was not his biological child. The trial court dismissed the petition. On appeal, the High Court directed the parties to undergo a DNA test, which excluded the husband as the biological father. The wife initially consented but later retracted, though she eventually complied. The High Court, relying on the DNA report and the wife's inconsistent conduct, held that the husband proved adultery and cruelty. The court allowed the appeal, granted a decree of divorce, and directed the husband to pay permanent alimony of Rs. 3,00,000 to the wife and child.
Headnote
A) Family Law - Divorce - Adultery - Section 13(1)(i) Hindu Marriage Act, 1955 - DNA Test as Evidence - Husband sought divorce on ground of adultery, alleging wife gave birth to a child not fathered by him - DNA test excluded husband as biological father - Held that DNA test report is conclusive proof of non-access and adultery, and wife's refusal to undergo test earlier amounts to cruelty (Paras 4-6).
Issue of Consideration
Whether the DNA test report excluding the husband as biological father of the child born to the wife is sufficient to prove adultery and cruelty, warranting divorce under the Hindu Marriage Act, 1955.
Final Decision
Appeal allowed. Judgment and decree of trial court set aside. Marriage dissolved by decree of divorce under Section 13(1)(i) and (ia) of Hindu Marriage Act, 1955. Appellant to pay Rs. 3,00,000 as permanent alimony to respondent and child within six months.
Law Points
- DNA test as conclusive evidence of non-access
- burden of proof in matrimonial cases
- Order 41 Rules 25 and 28 CPC for additional evidence
Case Details
2011 LawText (BOM) (08) 158
First Appeal No. 835/2009
Mr. Rohit Sharma, Adv.h/for Mr A.Parchure, Advocate for appellant; Mrs. Anjali Joshi, Advocate for Respondent
Gajanan s/o Prabhakar Deshpande
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Nature of Litigation
Matrimonial dispute - divorce petition
Remedy Sought
Appellant husband sought divorce on grounds of adultery and cruelty
Filing Reason
Wife gave birth to a child who was not biologically fathered by the husband
Previous Decisions
Trial court dismissed the divorce petition on 22nd April, 2009
Issues
Whether the DNA test report excluding the husband as biological father is sufficient to prove adultery?
Whether the wife's conduct in retracting consent for DNA test amounts to cruelty?
Submissions/Arguments
Appellant argued that DNA test conclusively proves adultery and wife's conduct caused cruelty.
Respondent initially consented to DNA test but later retracted, though eventually complied.
Ratio Decidendi
DNA test report excluding husband as biological father of child born to wife is conclusive proof of non-access and adultery, and wife's inconsistent conduct regarding DNA test amounts to cruelty, justifying divorce under Section 13(1)(i) and (ia) of Hindu Marriage Act, 1955.
Judgment Excerpts
The report indicated that appellant-Gajanan is excluded to be the biological father of the minor child Om born to respondent-wife.
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.
Procedural History
Husband filed Special Marriage Petition No. 2/2005 before District Judge, Buldana, which was dismissed on 22nd April, 2009. Husband appealed to High Court. During appeal, parties consented to DNA test, which was conducted. High Court directed trial court to record evidence on DNA report. After receiving findings, High Court allowed appeal.
Acts & Sections
- Hindu Marriage Act, 1955: Section 13(1)(i), Section 13(1)(ia)
- Code of Civil Procedure, 1908: Order 41 Rules 25 and 28
