It is held that adultery is offence under both criminal and matrirnonial lar vs Ilon'ble Supreme Court in Aparna Ajinkya Firodia (supra) and referred

Counsel for the Petitioner: M/s. ALLURI DIVAKAR REDDY,.Advocate Counsel forthe Respondent No.1: Mr. Y. BALA MURALI, Advocate Counsel for the Respondent No.2: NONE APPEARED The Court made the following: ORDER *-"rY THE HONOURABLE SMT. JUSTTCE RENUKA YARA CIVI REVTSION PE ION No.3l64 of 2024 ORDER: Heard Sri Alluri Divakar Reddy, learned counsel for the revisi<>n petitioner and Sri Y. Bala Murali, learned counsel for respondent No.l. Perused the ent.ire record.

2. This revision petition is fited by the revision petitioner aggrieved lr'y the order of the leamed Senior Civil Judge at Jagtial ('trial Court'), in I.A.No. 173 of 2024 in H.M.O.P.No.39 of 2024, dated 17 .09.2024, wher ein a petition filecl under Section 45 of the Indian Evidence Act, 1872, to direct respondent No.1 and baby girl by name Maheera ('minor child') for DNA test to ascertirin the paternity of the baby girl has been allou,ed with a direction for respondent No.l and minor child to appear before tir,.- Director, Forensic Science Laboratory ('FSL') fbr DNA test rvithin tu,'o weeks from the date of order and a direction to the Director. FSL, r.o conduct DNI. test and submit a report to the Court.

3. The berckground of facts leading to filing of the present revision arre that respondt:nt No.1 filed H.M.O.P.No.39 of 2024 on the tile of the trial Court under Section 13 (1) (i) (ia) of the Hindu Marriage r\cr, 195:i, seeking disrsolution of marriage between himself and the revisi in RY,J cRP 3164 2024 petitioner. The H.M.O.P. is filed on the ground that the revision petitioner is having an extra marital relationship with respondent No.2 and that s'he is of quarrelsome nature continuously demanding to live separately from his parents apart from partitioning of the property with his parents. The revision petitioner allegedly never showed interest to live in the company of respondent No.l, but always went to her paternal house. Further, the revision petitioner was always having conversations over phone with respondent No.2 and used to hide the same. Finally, on 26.05.2A22, the revision petitioner herein declared that the minor child is not daughter of respondent No.l, but is the daughter of respondent No.2 and respondent No.l is father only for the society. The revision petitioner abused respondent No.1 in un-parliamentary language and sought divorce. In this backdrop, H.M.O.P. was filed seeking dissolution of marriage.

4. In said H.M.O.P., [.A. under revision is filed to collect DNA samples of respondent No.l and minor child tbr DNA test to ascertain paternity of the minor chitd. The reason stated for obtaining such samples is that the revision petitioner declared that minor child is not daughter of respondent No.l, but daughter of respondent No.2.

5. Whereas, case of the revision petitioner is that respondent No.l can manage the DNA laboratory and can get any report. It is alleged that z'i , RY,J cRP 3164 2AU respondent No.l does not like the revision petitioner hnd her minor child and is not intel'ested to live with them, as such filed H.M.O.P. seeking dissolution of marriage. The case of the revision petitioner is tlrat respondent No.l collected the DNA samples and got DNA test done privately and g,ot report in his favour and on the basis of the said reporl, respondent No,l necked out the revision petitioner and minor child from his house. The revision petitioner opposed the collection of DNA sample:;.

6. Upon considering the case of both the parties by referring to tlre judgments of the Hon'ble Supreme Court of India in Nandlal Wasudeo Badwaik v. llata Nandlat Badwaikl, Sharda v. Dharmpal2, Goutanr Kundu v. State of West Bengal3, Dipanwita Roy v. Ronobroto Royr a'tcl Aparna Ajinrkya Firodia v. Ajinkya Arun Firodias, the trial Cotrrt arrived at conclusion that though conducting of DNA test of tninor child is a sensitive aspect the same has to be done where it is absolutely necessar j,. It is held that adultery is offence under both criminal and matrirnonial larvs and when the divorce petition is filed under the ground of adulterr,'. it is necessary to prove the same and therefore, allowed the [.A. under revisior'. ' (zora) 2 scc 575 ' izoo:l 4 scc 493 '(rggr) 3 scc 4r8 'izors) 1 scc 3G5 ' eozql t scc773 3 RY,J CRP 3164 2024 i"

7. Learned counsel for the revision petitioner referred to judgment of Ilon'ble Supreme Court in Aparna Ajinkya Firodia (supra) and referred to Section 112 of the Indian Evidence Act, 1872 ('Evidence Act'), which is extracted and produced: "section ll2 - Birth during marriage, conclusive proof of Iegitimacy: The fact that any person was bom during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten."

8. On the basis of said principle of the Evidence Act, it is argued that it is not the case of respondent No.l that he had no access to the revision petitioner during marriage for a period of eighteen months and as long as there was access, a presumption under section I l2 of the Evidence Act is that a child born during continuance of a valid man iage between mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that she is ttre legitimate chitd of that man, unless it can be shown that the parties to the \ mahiage had no access to each other at any time when the child could have been begotten. t: 4 R}"J cRP 3 164 202,+

9. Learned counsel for respondent No.l argued that the trial Court afler considering all the aspects has passed the impugned order and there ls ro reason to interfe:re with the same.

10. [t is a point to be noted that the Evidence Act was enacted in the year t872 during British era, when the medical science was not at the advanc,,,tJ stage as it is in the present times. The science of DNA testing to pro','e paternity was not available in the 19ft century. The only way of rnakirg interference win drawing presumption on the basis of access between m.rn and woman during valid marriage. Subsequently, due to development ot' DNA testing, l.o prove paternity sometimes such a relief is granted in cas r:s where it is ne<:essary. While granting such relief, the Courts are extremel',' cautious about. invading privacy of minor child. The welfare of the chilcl is taken into consideration over and above all other circumstances. It is i:r this context that guidelines have been issued in Aparna Ajinkya Firocli:r (supra) case flor conducting DNA tests. It is held by Hon'ble Suprerri,.: Court of lndia in the said case atparagraph No.43.2 as under: -'43.2 l)NA tests of children born during the subsistence o{'a valid rnarriage may be directed,. only when there is sufficient prima-facie material to dislodge the presumption under Section ll2 of the l:vidcnct: Act. Further, if no plea has been raised as to non-access. in order to rebut the presumption under Section I 12 of the Evidence Act. a DNA test rnay not be directed. 5 g--**-' \ \,\ RY,J cRP 3164 2024 I 1. [n the said case, it is held that if there is no pleading about non access during subsistence of marriage, the said presumption under Section I 12 of the Evidence Act comes into play about legitimacy of the child. It is aiso held as follows: "Whose riehts. are fu

102. As rightly contended by Shri Huzefa Ahmadi, learned senior counsel for the appellant, the question as to whether a DNA test should be permitted on the child, is to be analysed through the prism of the child and not through the prism of the parents. The child cannot be used as a pawn to show that the mother of the child r,vas living in adultery. It is always open to the respondent husband to prove by other evidence, the adulterous conduct of the wife, but the child's right to identity should not be allowed to be sacrificed.

103. It is contended by Mr. Kapil Sibal, learned senior counsel for the respondent that after all the endeavour of every Court should be to find the truth and that every party to a litigation is entitled to produce the best evidence. Enabling the party to produce the best of evidence, is part and parcel of right to fair trial. Therefore. it is contended by learned senior counsel that the refusal to subject the child to DNA test would infringe upon the respondent's right to fair trial. To buttress the contention that the right to privacy of an individual must yield to the right to fair trial of another, reliance is placed upon the decision ol'this Court in Sahara India Rea[ Estate Corporation l,imited vs SEBI {(20t2) l0 scc603}.

104. Attractive as it may seem at first blush, the said argument does not carry any legal weight. The lis in these cases is betrveen the parties to a marriage. Ttre lis is not between one of the parties to the marriage and the child whose patemity is questioned. To enable one of the parties to the marriage to have the benefit of fair trial, the Court cannot sacrifice the rights and best interests of, a third party to the lis, namely, the child.

105. Therbfore, I concur wholeheartedly with my learned sister that the Family Court as well as the l{igh Court rvere r,vrong in allorving the application of the respondent for subjecting the child to DNA test. Therefore, the appeal deserves to be allorved etnd 6 R':'--l CRP 3164 20r:'l accordingly it is allowed. However, this shall not preclude the respondent-husband from leading any other evidence, to establish the allegations made by him against the appellant in the petition for divorce."

12. As per the legal ratio laid down in the above case, the need for conducting DN,t test has to be seen from the prism of the child. The O.t'}. for dissolution of the marriage is filed between revision petitioner aill respondent No.l and the minor child is not a party to the O.P. Thercfor',:, as per the legal ratio laid down in Aparia Ajintrya Firodia (supra), ti're child cannot bt: used as means to prove the adultery if any committed b'7 the revision pr:titioner herein. Respondent No.l is at liberty to addu.:t: other evidence to prove his case of adultery against the revision petitioncr. As such, the impugned order passed by the trial Court is liable to be s,:t aside.

13. In the r,:sult, the Civil Revision Petition is allowed setting aside tri,r impugned ord er dated 17 .09.2024 in I.A.No. l 73 of 2O24 in H.M.O. P.No. l tit of 2014 on the t'ile ol the trial Court. There shall be no order as to cos :. Miscellaneou:; applications, if any, pending shall stand closed. SD/. G.JYOTHI ASSISTANT REGISTRAR CTION OFFICER To,

1. The Senior Civil Judge at Jagtial. 2. One CC to M/s.. ALLURI DIVAKAR REDEY, Advocate [OPUCI C.Ld_- -

3. One CC to Mr. y. BALA MURALI, Advocate IOPUCJ 4. Two CD Copies t RC/PSL 8K" * HIGH COURT DATED: 015/1 012A25 ( ( TT CRP.No.il164 of 2024 rA5Hr. 1 o C) ANJt 2 2[2[ J t t .{ + The Civill Revision Petition is Allowed. rf_t €- i T N -. ,) Kil, Q>/ t, -) -V]