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2009 DIGILAW 306 (GAU)

Biplab Dhar v. Panna Saha

2009-05-08

C.R.SARMA

body2009
JUDGMENT C.R. Sarma, J. 1. By this revision the order dated 30.04.2008 passed by the learned Judge, Family Court, Agartala, West Tripura in Misc. Case No. 297 of 2007 awarding maintenance allowance @ Rs. 1200/- per month in favour of the Respondent-wife of the Petitioner and @ Rs. 600/- per month in favour of their son with effect from 1.4.2008 has been challenged with a prayer for directing the Respondent-wife to undergo DNA test for determination of the paternity of the child. 2. The brief story of the case as emerged from the pleadings of both the parties is as follows: The marriage between the Petitioner and the Respondent was solemnized on 12.6.2005 as per the Hindu rites and ceremonies. After the said marriage the couple used to live as husband and wife peacefully. According to the Respondent-wife, they used to live in the residence of her husband (Petitioner) and out of the said wedlock a son was born to them on 15.1.2007. The Petitioner-husband withdrew from the society of the wife-Respondent on the ground that she could not bring more dowry from her parents. That apart, questioning the paternity of the child the husband-Petitioner demanded that the paternity of the child should be determined by a DNA test. It was further alleged that the Petitioner-husband had driven out the Respondent from the marital home on 14.8.2006 and since then the Respondent-wife has been compelled to take shelter in her parents' house. Therefore, the Respondent-wife filed a petition under Section 125 Code of Criminal Procedure against her husband (Petitioner) claiming maintenance for herself and for her minor son. Contesting the Respondent's claim for maintenance the Petitioner-husband while challenging the paternity of the child alleged that the Respondent herself had withdrawn from the society of her husband and that due to a surgical operation of spinal chord the Petitioner-husband was not in a position to co-habit with his wife-Respondent and as such the child not being born through him, the Petitioner was not under any obligation to maintain the Respondent as well as her child. On the basis of the pleadings of both the sides the learned Judge, Family Court framed the following issues for decision: (i) Whether the wife lead adulterous life and gave birth a child? (ii) Whether the husband-opposite party failed to maintain the wife-Petitioner and her child? On the basis of the pleadings of both the sides the learned Judge, Family Court framed the following issues for decision: (i) Whether the wife lead adulterous life and gave birth a child? (ii) Whether the husband-opposite party failed to maintain the wife-Petitioner and her child? (iii) Whether the wife-Petitioner is entitled to maintenance from the husband-opposite party for herself and for her minor child and if so, to what extent? 3. The wife-Respondent in Misc. Case No. 297 of 2007 examined herself as PW 1, while the husband-Petitioner examined himself as DW 1 and two more witnesses as DW 2 and DW 3. The learned Judge, Family Court having heard both the sides and considering the materials on record came to the finding that the husband-Petitioner neglected/refused to maintain his married wife and the child born out of their wedlock and accordingly granted maintenance @ Rs. 1200/- per month in favour of the wife-Respondent and @ Rs. 600/- per month in favour of their minor son to be payable by the Petitioner-husband with effect from 1.4.2008. Referring to the provision of Section 112 of the Evidence Act, the learned Judge, Family Court held that the Petitioner-husband failed to prove that he had no access to his wife and thus held that there was no ground to believe that the child was not born out of their wedlock. Therefore, the learned Judge, Family Court refused to allow the prayer for DNA test. 4. Being aggrieved by the said judgment and order the Petitioner-husband has come up with this revision seeking an order for setting aside the impugned judgment and order and for issuing a direction to undergo DNA test to ascertain the paternity of the child. 5. I have heard Smt. N. Guha, learned Counsel appearing for the Petitioner-husband and Smt. A.S. Lodh, learned Counsel appearing for the Respondent-wife. 6. There is no dispute regarding the performance of marriage between the Petitioner and the Respondent and as such there is no denial that the Respondent is the married wife of the Petitioner. The only contention of the Petitioner was that the Respondent herself had withdrawn from the society of the Petitioner and as such she was not entitled to get maintenance from the Petitioner. The only contention of the Petitioner was that the Respondent herself had withdrawn from the society of the Petitioner and as such she was not entitled to get maintenance from the Petitioner. The Petitioner's second contention was that due to surgical operation in respect of his spinal chord he was not in a position to co-habit with his wife-Respondent and as such he was not the father of the child. Therefore, he denied the paternity of the said child and claimed for DNA test to ascertain the paternity of the child. Under the provision of Section 125 Code of Criminal Procedure, if the husband having sufficient means neglects or refuses to maintain his wife, unable to maintain herself, or his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, such person, upon proof of such neglect or refusal is required to pay monthly allowance for the maintenance of his wife or the child. Under the provision of Section 125(4) Code of Criminal Procedure a wife cannot receive maintenance from her husband on the following grounds: (a) if she is living in adultery; (b) if, without any sufficient reason, she refuses to live with her husband; (c) if they are living separately by mutual consent. 7. The learned Judge, Family Court has held that none of the said circumstances are available in the present case. There is nothing on record regarding insufficiency of means of the husband-Petitioner and the ability of the wife-Respondent to maintain herself. In her evidence given as PW 1 the wife-Respondent already stated that the Petitioner-husband had driven her out from the marital home and demanded that she should undergo DNA test. She firmly stated that her husband who was a goldsmith by profession had decent earning and that she had no personal income on her part. 8. The husband-Petitioner deposing as DW 1 stated that since his wife led an adulterous life he was not under any obligation to provide maintenance to her. No cogent or sufficient evidence has been adduced to substantiate the allegation that the Respondent-wife used to live an adulterous life. From the tenor of evidence given by the DW 1, it appears that he refused to maintain his wife and the child. Therefore, the learned Judge, Family Court committed no illegality by holding that the husband-Petitioner failed and neglected to maintain his wife (Respondent) and the child. 9. From the tenor of evidence given by the DW 1, it appears that he refused to maintain his wife and the child. Therefore, the learned Judge, Family Court committed no illegality by holding that the husband-Petitioner failed and neglected to maintain his wife (Respondent) and the child. 9. Mrs. N. Guha, learned Counsel appearing for the husband-Petitioner strenuously argued that the Petitioner-husband who was seriously ill till November, 2005 due to his inter-vertebral Disc Lesion L4 L5 and L5 SI level with right sided sciatica went to Chennai for better treatment and returned to Agartala on 1.2.2006 with advice from the Doctor for taking bed rest for a couple of months and that due to the surgical operation the Petitioner was not in a position to have sexual intercourse with his wife and as such the son born to the Respondent-wife on 15.1.2007 was not born through the Petitioner-husband. The learned Counsel has submitted that in spite of sufficient materials on record the learned trial Judge committed illegality by refusing to pass an order for DNA test. Relying on the decision held in the case of Mothyukuri Shivakumar v. Mothukuri Narayanamma reported in Dwarika Prasad Satpathy v. Bidyut Prava Dixit reported in (1999) 7 SCC 675 , the learned Counsel for the Petitioner-husband submitted that the direction may be made for ascertaining the paternity of the child by an order to undergo DNA test. In the case of Dwarika Prasad Satpathy (supra) the Respondent-wife filed a case seeking maintenance for herself and for her minor daughter. A revision being filed the learned 1st Addl. Sessions Judge, Puri set aside the maintenance granted to the Respondent 1. However, the learned Judge granted maintenance in favour of the minor child till she attains majority. Against that order a criminal misc. case was filed before the High Court. In the High Court the Appellant contended that he was not the father of the child. On behalf of the Respondent it was pointed out that the Respondent was prepared to have a DNA test for finding out the paternity of the child. When the matter was placed for hearing the learned Counsel for the Appellant stated that the Appellant was not willing to undergo DNA test and, therefore, the High Court ordered "this means the Appellant is disentitled to dispute the paternity of the child, this is recorded". When the matter was placed for hearing the learned Counsel for the Appellant stated that the Appellant was not willing to undergo DNA test and, therefore, the High Court ordered "this means the Appellant is disentitled to dispute the paternity of the child, this is recorded". In the above referred case the marriage between the parties was in dispute. In the case of Mothyukuri Shivakumar (supra) the case of Gautam Kundu v. State of West Bengal AIR 1993 SC 2295 was referred as follows: Section 112 requires the party disputing the paternity to prove non-access in order to dispel the presumption. "Access" and non-access mean the existence or non-existence of opportunities for sexual intercourse; it does not mean actual cohabitation. It is a rebuttable presumption of law under Section 112that a child born during the lawful wedlock is legitimate, and that access occurred between the parents. This presumption can only be displaced by a strong preponderance of evidence, and not by mere balance of probabilities. Thus following is the position as to permissibility of blood test to prove paternity. (1) That Courts in India cannot order blood test as a matter of course. (2) Wherever applications are made for such prayer in order to have roving inquiry, the prayer for blood test cannot be entertained, (3) There must be a strong prima facie case in 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 the mother as an unchaste woman, (5) No one can be compelled to give sample of blood for analysis. In the said case, the case of B. Vandana Kumari v. P. Praveen Kumar AIR 2007 AP 17 was mentioned as follows: The result of 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 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. Though the Court has ample power while deciding the matrimonial matters to order a person to undergo medical tests which cannot be held to be in violation of the rights guaranteed under Article 21 of the Constitution of India, such power is required to be exercised sparingly only where sufficient material is available before the court and a strong prima facie case has been made out by the applicant. If despite the order of the court the Respondent refuses to submit himself to medical examination, the court will be entitled to draw an adverse inference against him. 10. In the above referred case it was held that the proceeding under Section 125 Code of Criminal Procedure is a quasi-criminal proceeding and the Petitioner cannot be treated as an accused in a strict sense, therefore, he cannot be compelled to give blood test. The Court can ask him to undergo the test, which will set at rest the dispute regarding the paternity. However, in order to claim for DNA test the revision Petitioner is to establish that he had no access to the wife-Respondent during the period in which the wife conceived the child. 11. Challenging the claim of the Petitioner the learned Counsel appearing for the opposite party has placed reliance on the decisions held in the case of Gautam Kundu v. State of West Bengal AIR 1993 SC 2295 ; Banarsi Dass v. Teeku Dutta (2005) 4 SCC 449 ; Smt. Sabitabai v. Chandrabhan Dubey AIR 2006 MP 135 . 12. 11. Challenging the claim of the Petitioner the learned Counsel appearing for the opposite party has placed reliance on the decisions held in the case of Gautam Kundu v. State of West Bengal AIR 1993 SC 2295 ; Banarsi Dass v. Teeku Dutta (2005) 4 SCC 449 ; Smt. Sabitabai v. Chandrabhan Dubey AIR 2006 MP 135 . 12. In the case of Sabitabai (supra) it was held that the order for DNA test should not be made as a matter of routine, it is to be directed only in deserving cases when there is prima facie case in favour of the Respondent-husband due to medical evidence. In this case the marriage was performed on 22.4.1996 and the child was born on 21.11.1996 i.e. after a period of only 7 months and doubting the paternity of the child, the Respondent filed a suit for divorce under Section 12of the Hindu Marriage Act stating that his wife was pregnant prior to the marriage and he did not want to continue with the said alliance. 13. In allowing the prayer for DNA test of the child the court considered the following ratio laid down in the matter of Sharda v. Dharampal AIR 2003 SC 3450 : We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancements with deoxyribonucleic acid (DNA) tests were not even 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 Evidence 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 irrebuttable. This may look hard from the point of views 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 of non-access as delineated above. 14. 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 of non-access as delineated above. 14. In our present case the child was born well within the subsistence of the marriage and there was availability of opportunity of access to the wife. 15. The case of Banarsi Dass (supra) relates to issuance of Succession Certificate. In the said case, the following ratio laid down in Gautam Kundu (supra) was considered: (1) that courts in India cannot order blood test as a matter of course: (2) wherever applications are made for such prayer in order to have roving inquiry, the prayer for blood test cannot be entertained: (3) there must be a strong prima facie case in that the husband must establish non-access in order to dispel the presumption arising under Section112 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 the mother as an unchaste woman; (5) no one can be compelled to give sample of blood for analysis. 16. Referring to Section 112 of the Evidence Act it was held that the party disputing the parentage is required to prove non-access in order to dispel the presumption of the fact under Section 112 of the Evidence Act and the Courts are required to have regard to Section 112 of the Evidence Act. This section is based on the well-known maxim pater is est quem nuptiae demonstrant (he is the father whom the marriage indicates). The presumption of legitimacy, is this, that a child born of a married woman is deemed to be legitimate, it throws on the person who is interested in making out the illegitimacy, the whole burden of proving it. The law presumes both that a marriage ceremony is valid, and that every person is legitimate. Marriage or filiation (parentage) may be presumed, the law in general presuming against vice and immorality. It is rebuttable presumption of law that a child born during lawful wedlock is legitimate, and that access occurred between the parents. This presumption can only be displaced by a strong preponderance of evidence, and not by a mere balance of probabilities. Marriage or filiation (parentage) may be presumed, the law in general presuming against vice and immorality. It is rebuttable presumption of law that a child born during lawful wedlock is legitimate, and that access occurred between the parents. This presumption can only be displaced by a strong preponderance of evidence, and not by a mere balance of probabilities. In deciding the said case the following observation made by the Apex Court in the case of Dukhtar Jahan v. Mohd. Farooq (1987) 1 SCC 624 was taken into consideration. Section 112 lays down that if a 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 and the mother remains unmarried, it shall be taken as 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. 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 cinching 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. The principle laid down in the case of Gautam Kundu (supra) regarding paternity of a child with reference to Section 112of the Evidence Act has already been discussed. The Section 112 of the Evidence Act requires the party disputing the paternity to prove non-access in order to dispel the presumption. "Access" and "non-access" mean the existence or non-existence of opportunities for sexual intercourse; it does not mean actual cohabitation. 17. In our present case in hand, the marriage was held on 12.6.2005 and the child was born on 15.1.2007. "Access" and "non-access" mean the existence or non-existence of opportunities for sexual intercourse; it does not mean actual cohabitation. 17. In our present case in hand, the marriage was held on 12.6.2005 and the child was born on 15.1.2007. In his revision petition, the Petitioner averred that he was not in a position to have sexual intercourse after his return from Chennai on 1.2.2006 that the Respondent-wife left him on 5.2.2006 and came back to the house of the Petitioner on 30.4.2006 and that after living in the marital house for about 15 days she again went back to her parents' house. In the Annexure-B, i.e. the complaint made before the O.C., Belonia PS, on 15.7.2006, the Petitioner contended that his wife was having 21/2 months pregnancy. In the said petition dated 15.7.2006 nothing was alleged regarding the illegitimacy of the pregnancy denying the paternity. If, on 15.7.2006, she was carrying 21/2 months pregnancy, she might have, in all probability, conceived the baby in the last part of April or first part of May. According to the Petitioner, after his return from Chennai, his wife stayed with him for some days. 18. In view of the above, it appears that it was not a case where the Petitioner had no opportunity to have access to his wife. Rather there is sufficient materials on record to find that the Respondent-wife lived with the Petitioner after his return from Chennai and that he had opportunity to have access to his wife. Now the question was whether the Petitioner was in a position to have sexual intercourse causing the pregnancy. No medical evidence has been adduced in support of the Petitioner's contention that he was not physically fit or capable to have sexual intercourse with his wife. In his evidence given as DW 1 the Petitioner stated as follows: I sustained a surgical operation in my spinal-chord. It was done in Apollo Hospitals, Chennai in the month of January, 2006. At that time, my wife was at her paternal house. I came back from Chennai and informed her over telephone to join my Company. Accordingly, she joined, but unfortunately asserted that since she would not be able to enjoy marital life because of my operation, it would be fruitless to live with me at that stage. Hence, deserted me. The son born to her is not my son. I came back from Chennai and informed her over telephone to join my Company. Accordingly, she joined, but unfortunately asserted that since she would not be able to enjoy marital life because of my operation, it would be fruitless to live with me at that stage. Hence, deserted me. The son born to her is not my son. Therefore, there is no question of giving maintenance to that son. Since my wife leads an adulterous life, I am under no obligation to provide maintenance to her. From the said evidence, it appears that the wife of the Petitioner had joined him after his return from Chennai but as stated by him, deserted him on the plea that she would not be able to enjoy marital life because of the surgical operation. The Petitioner nowhere categorically stated, in his evidence, that he was not physically fit to have sexual intercourse or that he had no access at all to his wife. Therefore, there is no substantive and cogent evidence in support of the contention that the Petitioner had no capability to have sexual intercourse. He also did not make any whisper in his evidence that he had no sufficient means to maintain his wife and the child. Hence, the Petitioner failed to establish his pleas. 19. In the light of the above mentioned decisions as relied on by both sides, an order requiring the wife and the child to undergo DNA test for ascertaining the paternity can be passed only in rare cases where it is proved that the husband had no access to the wife at the time of the alleged pregnancy. Section 112 of the Evidence Act reads as follows: 112. Birth during marriage, conclusive proof of legitimacy -- 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 it could have been begotten. 20. 20. In view of the above as the Petitioner could not establish by adducing substantive evidence that within 280 days, prior to the birth of the child, the Petitioner had no access to his wife coupled with his failure to prove the alleged adultery against the wife it stood conclusively proved that the child was the legitimate son of the Petitioner. Therefore, in the attending facts and circumstances, there was no necessity for directing to undergo DNA test. Therefore, in my considered view the learned Judge, Family Court committed no illegality by refusing to pass an order for DNA test. 21. In view of the discussions stated above, I find no merit in this revision petition requiring interference with the impugned judgment and order. Accordingly, the criminal revision stands dismissed without cost. Lower court records be returned.