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Madhya Pradesh High Court · body

2006 DIGILAW 762 (MP)

Akhilesh Bai v. Gyanendra Kumar Dantre

2006-05-20

SHEELA KHANNA

body2006
ORDER 1. This petition under section 482 of CrPC by the petitioners is directed against the order dated 26.2.2005 passed by the learned Family Court, Gwalior in MCrC No. 247/03, whereby the application of the respondent/husband filed under section 45 of the Evidence Act was allowed and the petitioner No.2 was directed to appear for DNA Finger Print Test before the concerning laboratory. 2. Brief facts giving rise to the filing of this petition are as under: The petitioners have filed an application under section 125 Criminal Procedure Code against the respondent for getting maintenance on the grounds that the marriage of petitioner No. 1/wife was solemnized with the respondent/husband on 17.6.1994 and out of the wedlock one son was born on 16.2.1995 and thereafter a daughter was born in the year 1996, who died after some days. It was alleged that on 11.1.1998 the petitioner No. l/wife was driven out of home by the respondent when she was pregnant and on 18.1.1998, the petitioner No.2 was born. When the petitioner No.1 was driven out by the respondent, then she lodged a report at Police Station Padav. As the respondent was not maintaining the petitioners and, therefore, both the petitioners filed application for their maintenance. The respondent also filed an application for divorce against the petitioner No.1, but it was dismissed on 5.9.2003 and no amount of maintenance was paid by the respondent. Initially ex-parte proceedings were made against the respondent and amount of maintenance was also fixed, but thereafter the respondent moved an application for setting aside ex-parte proceedings and thereafter also filed reply. The respondent also filed an application under section 45 of the Evidence Act stating therein that after birth of the first son on 16.2.1995 after some days, the petitioner No, 1 left the house of the respondent without informing him and went to her parental house along with his son and thereafter she never returned. It was pleaded that the respondent had no physical relation and had no nexus with the petitioner No.1 from October, 1995. Thus, the respondent denied the paternity of the petitioner No.2 and requested for DNA Finger Print Test of petitioner No.2 and of himself. It was pleaded that the respondent had no physical relation and had no nexus with the petitioner No.1 from October, 1995. Thus, the respondent denied the paternity of the petitioner No.2 and requested for DNA Finger Print Test of petitioner No.2 and of himself. Learned Family Court by the impugned order allowed the said application of the respondent and directed the petitioner No. 2 to appear for DNA Finger Print Test and the respondent was directed to deposit the requisite fees for the same. Aggrieved by the impugned order, the petitioners have preferred this petition for invoking the extraordinary powers of this Court. 3. The contention of the learned counsel for the petitioners is that the application under section 45 of the Indian Evidence Act for getting the DNA Test done was not maintainable and the learned trial Court has allowed the application only on the ground that the respondent was ready to bear the cost of such DNA Test. It is argued that the petitioners in the maintenance application have clearly pleaded that the marriage of petitioner No. 1 with the respondent was solemnized on 17.6.1994 and first son was born on 16.2.1995, then a daughter was born in the year 1996, who died after some time and that on 11.1.1998 the petitioner No. 1 was driven out of her home by the respondent and at that time she was pregnant and on 18.1.1998 she gave birth to petitioner No.2. It is urged that under section 112 of the Indian Evidence Act there is presumption about the legitimacy of the child who has been born during the continuance of a valid marriage. It is further submitted that the DNA Test amounts to infringement of rights of privacy as well as infringement of rights as envisaged under Article 21 of the Constitution of India and that such test is not conclusive proof about the paternity of a person. It has been contended that the impugned order is illegal, arbitrary and contrary to law. 4. It has been contended that the impugned order is illegal, arbitrary and contrary to law. 4. Per contra, it is submitted by learned counsel for the respondent that after some days after the delivery of first son on 16.2.1995, the petitioner No. I had left the house of the respondent without his permission and had gone to her parental house along with the son and thereafter she never returned to respondent and after that the parties had no nexus to each other at any time. It is argued that the petitioner No.2 is not the legitimate son of the respondent and that the respondent is not liable to pay maintenance to the petitioners. It is further contended that in the above circumstances, the respondent filed an application under section 45 of the Evidence Act for getting the DNA Finger Print Test of the petitioner No.2 and of himself and that the trial Court has rightly allowed the application. 5. I have carefully considered the submission of both the parties. It is not disputed that the marriage of the petitioner No. 1 with the respondent was solemnized on 17.6.1994. It is also not disputed that out of wedlock one son was born on 16.2.1995. The petitioners have pleaded that after 16.2.1995, a daughter was born in the year 1996, who died after some time and that on 11.1.1998 the petitioner was driven out of home by the respondent and at that time she was pregnant and on 18.1.1998, the petitioner No.2 was born. According to section 112 of the Evidence Act "the fact that any person was born during the continuance of a valid marriage between his mother and any man or within 280 days after its dissolution, the mother remaining unmarried, shall be conclusive to that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no nexus to each other at any time when he could have been bigoted". Thus, if a person is born during the continuance of a valid marriage, then it is conclusive proof that he is the legitimate son, but if it is proved that the parties to the marriage had no nexus to each other, then of course no such conclusion can be drawn that he is the legitimate son. Thus, if a person is born during the continuance of a valid marriage, then it is conclusive proof that he is the legitimate son, but if it is proved that the parties to the marriage had no nexus to each other, then of course no such conclusion can be drawn that he is the legitimate son. The respondent herein has pleaded that the petitioner No. 1 had left the house of the respondent after some days after 16.2.1995 and, thereafter, she never return to respondent and thus he had no nexus to her. It is pertinent to note that in this case, evidence of the parties is yet to be recorded and no witness has been examined by either party in the case and simply on the basis of the averments made in the reply of the petition, the application of the respondent has been allowed. I am of the considered view that the permission of DNA Finger Print Test should not be allowed as a matter of course by the Courts. It is admitted by the respondent that the marriage of the respondent was solemnized with petitioner No. 1 on 17.6.1994 and, therefore, there must be a strong prima facie case in favour of the respondent to establish non-access in order to dispel the presumption arising under section 112 of the Evidence Act. Simply because there is denial of paternity in the pleadings, the application for DNA Finger Print Test should not be allowed, but the Court is expected to examine carefully as to what would be the consequences of ordering the DNA Test and its affect to the future of child. No person should be compelled for DNA Test against his/her will in a casual manner. During the course of arguments, the learned counsel for the petitioners has submitted that in this case both the parties should be allowed to adduce evidence and if after recording the evidence, the Court comes to the conclusion that DNA Test is necessary, then the application of the respondent at that stage may be considered. On this argument, learned counsel for the respondent also agreed and submitted that he has no objection in case the application of the respondent for DNA Test is kept pending and first the parties be allowed to adduce evidence. The submission of both the parties in this respect appears to be reasonable. 6. On this argument, learned counsel for the respondent also agreed and submitted that he has no objection in case the application of the respondent for DNA Test is kept pending and first the parties be allowed to adduce evidence. The submission of both the parties in this respect appears to be reasonable. 6. Considering the facts and circumstances of the case and the submissions of both the parties this petition is allowed and the impugned order is set aside and the trial Court is directed to afford an opportunity to both the parties to adduce evidence in the case and after conclusion of the evidence the application of respondent under section 45 of the Evidence Act be considered on merits. The observations made in this order during discussion shall not come in any way before the trial Court while considering the application of the respondent. 7. Accordingly, petition is disposed of as indicated above.