Merely Saying Wife Isn’t Ready For Child’s DNA Test During Cross-Examination Not Sufficient To Draw Adverse Inference: Bombay HC

The Bombay High Court, Aurangabad Bench in a plea filed by the husband related to the maintenance under Section 125 of Cr.PC has held that merely saying that the wife is not ready for the DNA test of the child during the cross-examination would not be sufficient to draw an adverse inference against the wife.

The petitioner i.e., the husband had challenged the order passed by the Additional Sessions Judge dismissing his revision application.

A Single Bench of Justice Kishore C. Sant asserted, “… as on today, in this petition also though vehemently arguments are advanced saying that the petitioner husband is ready go for DNA test, still no separate application is filed for DNA test. Mere submission that question was asked in cross-examination to wife that whether she is ready to go for DNA test, where she has answered that she is not ready itself would not be sufficient to draw adverse inference against the wife.”

The Bench further observed that the argument of the petitioner that the respondent is not his biological daughter cannot be accepted as there was no separate application filed by him in the Trial Court, nor before the Revisional Court and that no case is made out by him to direct the DNA test.

Advocate Ravindra V. Gore appeared for the petitioner i.e., the husband while Advocate Sandip R. Andhale for the respondents i.e., wife and daughter.

Brief Facts of the Case –

The respondent/wife filed an application under section 125 of the Cr. PC. seeking maintenance for herself and her daughter aged 5 ½ months. It was the defence of the petitioner/husband that the child was not born to him. The Trial Court however allowed the application and ordered to grant the maintenance.

The petitioner was ready for the DNA test and justified as to why he did not file an application for the same. The Sessions Court while considering the legitimacy of the child and the fact that the separate application is not filed relied upon the presumption under Section 112 of the Evidence Act and therefore dismissed the revision application.

The petitioner hence approached the High Court. The High Court said, “Both the Courts below have rightly observed that no case is made out by the husband to show that for the period of 280 days before the delivery of child, there was no access to him with his wife respondent No.1.”

The Court further noted that the petition fails in view of the facts of the case.

Accordingly, the Court dismissed the petition.

Cause Title- Namdeo v. Seema & Anr.

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