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2004 DIGILAW 1379 (ALL)

HEERA SINGH v. STATE OF U. P.

2004-07-29

KRISHNA MURARI

body2004
KRISHNA MURARI, J. ( 1 ) HEARD Sri ikrani Ahmad, learned counsel for the petitioner and learned A. G. A. ( 2 ) THE brief facts of the case as stated in the writ petition are that the petitioner was married to respondent No. 2 in 1978 and gauna took place in 1982. He is an employee of Border Security Force and after his gauna, he went to Punjab in 1983 to join his duties. He came back to village in 1984 and found that his wife was in advance stage of pregnancy and a male child was born on 8-6-1984. The petitioner filed a matrimonial case for dissolution of marriage. First Appeal No. 619 of 1989 (Heera Singh v. Lalmuni devi) arising out of the said matrimonial case is pending before this Court. Respondent no. 2 moved an application under Section 125, Cr. P. C. claiming maintenance for her and respondent No. 3 who is minor son. In the said proceedings the petitioner moved an application praying that D. N. A. test of the minor child be conducted to establish that he was not born out of the wedlock and was illegitimate. This application was resisted by respondent No. 2 and was dismissed on 7-2-2004. Revision filed against the order was also dismissed by Sessions judge, Ghazipur. ( 3 ) IT has been contended by the learned counsel for the petitioner that since he was on duty at Punjab as such he had no access to his wife and respondent No. 3 is not his child and in order to establish that, D. N. A. test ought to have been allowed by the Court below. It is also contended that the Court below has rejected the application on flimsy ground without any application of mind and d. N. A. test ought to have been permitted which would conclusively prove that he was not father of respondent No. 3. Learned counsel for the petitioner also contended that the provisions of Evidence Act were enacted when science was not so advanced and D. N. A. test was not even in existence. In this era of modern technology, provisions enacted more than hundred years back have lost their significance. ( 4 ) SECTION 112 of the Evidence Act provides that birth of a child during continuance of a marriage is conclusive proof of his legitimacy. In this era of modern technology, provisions enacted more than hundred years back have lost their significance. ( 4 ) SECTION 112 of the Evidence Act provides that birth of a child during continuance of a marriage is conclusive proof of his legitimacy. The said Section reads as under:"section 112 - The fact that any person was born 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 be begotten. " ( 5 ) THIS Section is based on the well known maxim pater est quern nuptiae demonstrant (the father is one whom the marriage indicates ). It embodies the rule of law that a child born during a valid marriage is in itself conclusive proof of his legitimacy unless it is proved by clear and strong evidence that husband and wife did not or could not have access to each other at any time when the child could have begotten. Thus a special protection has been provided by law to the status of legitimacy of a child. However, the latter part of the sectionprovides an outlet to the party to escape from the rigour of the conclusiveness only by giving very strong, distinct and clear proof of non-access. Presumption of law regarding legitimacy of a child cannot be allowed to be lightly repealed or allowed to be broken or shaken merely by probabilities. To dispel the presumption of legitimacy of a child the evidence must be direct, strong, distinct and conclusive. These rigours are justified by considerations of public for the stigma of illegitimacy is very severe and may affect not only the entire life of the child, his family but his future generation as well. ( 6 ) THE Apex Court in the case of Smt. Kamti Devi v. Poshi Ram, reported in AIR 2001 SC 2226 , has held as under :"section 112 which raises a conclusive presumption about the paternity of the child born during the subsistence of a valid marriage, itself provides an outlet to the party who wants to escape from the rigour of that conclusiveness. The said outlet is, if it can be shown that the parties had no access to each other at the time when the child could have been begotten the presumption could be rebutted. In other words, the party who wants to dislodge the conclusiveness has the burden to show a negative, not merely that he did not have the opportunity to approach his wife but that she too did not have the opportunity of approaching him during the relevant time. " ( 7 ) FROM a perusal of the record of the case, there is no evidence even worth the name sake to demonstrate that the petitioner had no access to respondent No. 2 when respondent No. 3 could have been begotten. Even the pleadings in this regard are very vague. It has just been stated that gauna took place in 1982 and he went to Punjab to join his duties in 1983. When he came back to village in 1984, respondent No. 2 was in advance stage of pregnancy. When the law requires very strict and direct proof to rebut the presumption of legitimacy, the d. N. A. test of a minor child cannot be allowed in the absence of any evidence and on such vague pleadings. ( 8 ) THE next argument of the learned counsel for the petitioner is that with the advancement of science and technology, provisions of Evidence Act enacted more than 100 years back, when such special techniques were not in existence, have totally lost their significance, is also without substance and liable to be rejected in view of the following observation made by the apex Court in the case of Smt. Kamti Devi (supra):"11. We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancements with Dioxy Nucleic Acid (DNA) as well as Ribonucleic acid (RNA) tests were not even in contemplation of the Legislature. The result of a genuine DNA test is said to be scientifically accurate. But even that is not enough to escape from the conclusiveness of Section 112 of the Act, e. g. if a husband and wife were living together during the time of conception but the DNA test revealed that the child was not born to the husband, the conclusiveness in law would remain unrebuttable. But even that is not enough to escape from the conclusiveness of Section 112 of the Act, e. g. if a husband and wife were living together during the time of conception but the DNA test revealed that the child was not born to the husband, the conclusiveness in law would remain unrebuttable. This may look hard from the point of view of the husband who would be compelled to bear the fatherhood of a child of which he may be innocent. But even in such a case the law leans in favour of the innocent child from being bastardized if his mother and her spouse were living together during the time of conception. Hence the question regarding the degree of proof of non-access for rebutting the conclusiveness must be answered in the light of what is meant by access or non-access as delineated above. " ( 9 ) THERE is yet another aspect of the matter. Before blood or D. N. A. test can be directed, the consent of the person concerned is necessary. In the present case, respondent No. 2 has resisted and contested the application for conducting D. N. A. test of the child, respondent No. 3. The Apex court in the case of Goutam Kundu v. State of West Bengal, reported in AIR 1993 SC 2295 : 1993 Cri LJ 3233, while considering the question of conducting blood test to establish paternity of the child has summerised the law on the subject in the following words :"26. From the above discussion it emerges :- (1) that Courts in India cannot order blood test as a matter of course; (2) Wherever applications are made for such prayers in order to have roving inquiry, the prayer for blood test cannot be entertained; (3) there must be a strong prima facie case that the husband must establish non-access in order to dispel the presumption arising under Section 112 of the Evidence act; (4) the Court must carefully examine as to what would be the consequence of ordering the blood test; whether it will have the effect of branding a child as a bastard and mother as an unchaste woman; (5) no one can be compelled to give sample of blood for analysis. " ( 10 ) IN view of the settled legal position, respondent No. 2 being guardian of respondent No. 3 having refused D. N. A. test, cannot be compelled for the same at the instance of the petitioner. The Courts in the capacity of ad litem guardian of minor can also not direct such a test in the absence of direct and positive evidence of non-access as required by Section 112 of the Evidence Act. The Courts exercise protective jurisdiction on behalf of an infant and it would be unjust and unfair to direct to such a test to assist a litigant to establish and prove his or her claim at the cost of an infant. The infant cannot be allowed to suffer because of his incapacity. The Apex Court in the case of Smt. Dukhtar Jahan v. Mohammed farooq, reported in AIR 1987 SC 1049 : 1987 cri LJ 849, has observed as under :"12. This rule of law based on the dictates of justice has always made the Courts incline towards upholding the legitimacy of a child unless the facts are so compulsive and clinching as to necessarily warrant a finding that the child could not at all have been begotten to the father and as such a legitimation of the child would result in rank injustice to the father. Courts have always desisted from lightly or hastily rendering a verdict and that too, on the basis of slender materials, which will have the effect of branding a child as a bastard and its mother an unchaste woman. " ( 11 ) IN view of the aforesaid discussion, I find both the Courts below have rightly rejected the application filed by the petitioner for conducting D. N. A. test of the minor child, respondent No. 3, and the orders do not call for any interference. ( 12 ) THE petition lacks merit and is dismissed. The proceedings have been pending since 1985. The very purpose of filing such an application is obviously to delay the proceedings and to avoid payment of maintenance. In such circumstances, the II Additional Civil judge (Junior Division), Ghazipur where the proceedings are pending is directed to hear and decide the case preferably within three months from the date of receipt of a copy of this order. The very purpose of filing such an application is obviously to delay the proceedings and to avoid payment of maintenance. In such circumstances, the II Additional Civil judge (Junior Division), Ghazipur where the proceedings are pending is directed to hear and decide the case preferably within three months from the date of receipt of a copy of this order. Since the petition is being dismissed without noticing the contesting respondents, the registry of this Court is directed to send a copy of this order to the II additional Civil Judge (Junior Division ). Ghazipur for necessary compliance. No order as to costs. Petition dismissed. .