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2010 DIGILAW 713 (CAL)

Rabinder Yadav @ Gope v. STATE OF WEST BENGAL

2010-06-29

PRASENJIT MANDAL

body2010
JUDGMENT:- Prasenjit Mandal, J.: 1. This application under Section 401 read with Section 397 and Section 482 of the Code of Criminal Procedure, 1973 is at the instance of a husband of a maintenance proceeding and is directed against the judgment and order dated 05.03.2009 passed by the learned Additional Sessions Judge, Fourth Court, Paschim Medinipur in Criminal Revision No.105 of 2008 arising out of a maintenance proceeding bearing M.R. Case No.358 of 1998 thereby allowing the revisional application with order of remand. The learned Additional Sessions Judge also granted ad interim maintenance at the rate of Rs.1,500/- per month to the wife payable within 10th of each month. Being aggrieved by such order of the learned Additional Sessions Judge, the husband has preferred this application. The fact of the case leading to the filing of this application is that the marriage of the husband and wife (opposite party no.2) was solemnised on 03.03.1992 according to Hindu rites and customs. After marriage, the wife began to reside at her matrimonial house. After some days she came to her paternal house as per their customs. The wife contended that one male child was born in the wedlock. Then she came to her matrimonial house. After some days of stay, the husband demanded Rs.20,000/-more from the father of the wife, though adequate dowry was given at the time of marriage. The father of the wife could not pay such demand and for that reason, the wife was subjected to physical and mental torture. She came back with her son to her paternal house. The husband took her back to his house but he again subjected her to torture. Ultimately, the wife was compelled to leave her matrimonial house. Thereafter, she filed an application under Section 125 of the Cr.P.C., 1973 claiming maintenance for herself and the child. The husband appeared in the said proceedings. He denied all the material allegations. He disputed that the paternity of the child. Both the parties adduced evidence. Then, upon consideration of the evidence on record, the learned Judicial Magistrate, Paschim Medinipur rejected the application under Section 125 of the Cr.P.C. Thereafter, the wife filed a revisional application under Sections 397, 399 read with Section 401 of the Cr.P.C. against the order passed by the learned Judicial Magistrate rejecting the maintenance application. Both the parties adduced evidence. Then, upon consideration of the evidence on record, the learned Judicial Magistrate, Paschim Medinipur rejected the application under Section 125 of the Cr.P.C. Thereafter, the wife filed a revisional application under Sections 397, 399 read with Section 401 of the Cr.P.C. against the order passed by the learned Judicial Magistrate rejecting the maintenance application. The learned Additional Sessions Judge disposed of the said revisional application thereby directing that the case is sent back to the learned Court below for recording further evidence and then to dispose of the case according to law. The learned Additional Sessions Judge also granted interim maintenance at the rate of Rs.1,500/- per month to the wife payable within the 10th of each month. Thereafter, the husband has preferred this application. Mr. Mitra, learned Advocate for the petitioner, submits that according to the customs prevailing in the society of the parties to the maintenance proceeding, after marriage the parties stay for some days together and thereafter the wife goes to her father’s house and stays there for one year and then the parties begin to live together as husband and wife. In the instant case, one child was born to the wife during such period and so paternity of the child by the husband is denied. In such circumstances, DNA test was held. The report of the DNA was considered by the learned Magistrate and thereafter the order of rejection of the application under Section 125 of the Cr.P.C. was passed by the learned Magistrate. It is clear that without examination of the scientific expert, the report was accepted. There is no other procedure save and except Section 293 of the Cr.P.C. to accept the report without examination of the scientific expert. So there is no illegality in the matter. The question of further examination as directed by the learned Additional Sessions Judge does not arise at all. Therefore, the judgment delivered by the learned Additional Sessions Judge cannot be supported and it must be set aside and quashed. In support of his submission, the learned Advocate for the petitioner referred to the following judgments:- 1. Pandit Ukha Kolhe Vs. The State of Maharashtra reported in SCR (1) 1964 page 926. Therefore, the judgment delivered by the learned Additional Sessions Judge cannot be supported and it must be set aside and quashed. In support of his submission, the learned Advocate for the petitioner referred to the following judgments:- 1. Pandit Ukha Kolhe Vs. The State of Maharashtra reported in SCR (1) 1964 page 926. In the said decision an order for retraial was challenged and it was held that unless the appellate Court is satisfied that the trial court had no jurisdiction to try the case order of retrial cannot be supported. In that case, the report of the chemical examiner was tendered in evidence. The contention that the report of the chemical examiner to the police was inadmissible in evidence, was rejected. Therefore question of fresh trial in the instant case did not arise. 2. Rajesh Kumar & Anr. Vs. State Government of NCT of Delhi reported in (2008) 2 SCC (Cri) 366. The Hon’ble Apex Court held that it is not obligatory that an expert who furnishes his opinion on the scientific issue of the chemical examination of substance, should be of necessity made to depose in proceedings before the Court. 3. Kamti Devi & Anr. Vs. Poshi Ram reported in 2001 SCC (Cri) 892. He contended that the presumption under Section 112, held, would stand rebutted if the party concerned could show that the parties had no access to each other at the time when the child could have been begotten. On the other hand, Mr. Himangshu De, learned Advocate for the wife/opposite party submits that marriage between the parties was held according to customs of the parties. Thereafter both the parties lived together for some days. Thereafter, the wife was sent to her father’s house according to their customs and she stayed there for one year. Thereafter she came to her matrimonial house. In the meantime, one child was born in the wedlock. However, as the paternity of the child was disputed, DNA test was held and upon consideration of the report when the learned Magistrate rejected the application for maintenance, the wife filed a revisional application which was allowed by the learned Additional Sessions Judge for fresh trial. So, there is no illegality in the matter. However, as the paternity of the child was disputed, DNA test was held and upon consideration of the report when the learned Magistrate rejected the application for maintenance, the wife filed a revisional application which was allowed by the learned Additional Sessions Judge for fresh trial. So, there is no illegality in the matter. Having considered the submission of the learned Advocate of both the sides and on perusal of the materials on record, I find that the marriage between the parties is not disputed. It is not also in dispute that the parties lived together for some time and thereafter the wife went to stay to her father’s house for one year according to the customs prevailing in their society. During that period, one child was born. The wife claims that the husband is the father of the child and such contention of the wife is totally denied by the husband. For that reason, DNA test was done and the scientific expert submitted the report of the DNA test. On the basis of such test report and other materials as available before the learned Magistrate, he (learned Magistrate) rejected the application for maintenance. Being aggrieved by the said order of rejection of her maintenance application, she preferred a revisional application under Sections 397, 399 and 401 of the Cr.P.C., 1973. That revisional application was disposed of on contests giving opportunity to both the parties to raise their respective contentions before the learned Magistrate. Upon due consideration of the contentions of both the parties, the learned Additional Sessions Judge allowed the revisional application thereby setting aside the order of rejection passed by the learned Magistrate and the case was sent back to the learned Magistrate for fresh trial. As per direction of the revisional Court, the learned Magistrate is bound to examine the witness or witnesses. Section 293 of the Cr.P.C. does not debar from examination of the witness such as, scientific officer, if the situation demands. Rather, in appropriate cases, they court may, if its thinks fit, summon and examine any such expert as to subject matter of his report, as Section 293(2) of the Cr.P.C., 1973. Therefore, on consideration of the above facts and circumstances, I do not find that the learned Additional Sessions Judge has committed any error or illegality. Rather, in appropriate cases, they court may, if its thinks fit, summon and examine any such expert as to subject matter of his report, as Section 293(2) of the Cr.P.C., 1973. Therefore, on consideration of the above facts and circumstances, I do not find that the learned Additional Sessions Judge has committed any error or illegality. It is not the case that the learned Additional Sessions Judge suffers from impropriety to deal with the matter. So the learned Additional Sessions Judge has disposed of the revisional application in accordance with law. Therefore, I do not find that the husband has set out any valid ground for interference with the judgment and order passed by the learned Additional Sessions Judge, on merits. In view of what has been stated above, I am of the view that the said revisional application should be dismissed. Accordingly, the revisional application is dismissed. Considering the circumstances, there will be no order as to costs. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.