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2011 DIGILAW 779 (GAU)

Gobinda Neogi v. Jhuma Rani Saha

2011-09-20

HRISHIKESH ROY

body2011
ORDER Hrishikesh Roy, J. 1. Heard Mr. J. M. Choudhury, learned senior counsel appearing for the petitioner. The respondent is absent although notice was served on her. The petitioner questions the legality of the judgment and order dated 5-6-2007 in Case No. 367"/04 rendered by the learned Sub-Divisional Judicial Magistrate (S), Barpeta. By the impugned judgment, the application filed by the respondent (first party) was granted by directing payment of Rs. 1000/- per month as maintenance for the male child allegedly fathered by the petitioner, who was born to the first party on 26-6-2004. 2. In her petition filed on 4-11-2004 under Section 125 of the CrPC. the first party claimed that she was engaged to do domestic chores in the house of the petitioner. Enticed with marriage promise, petitioner developed intimacy with the first party and the first party became pregnant and a male child was born to the first party at the Maternity Home on 26-6-2004. In her application, the first party offered to have DNA Test conducted to determine the paternity of her child. 3. In his written statement, the second party (petitioner) denied any relationship with the first party and contended that a false case was filed against him. The second party offered to undergo a DNA Test, to ascertain the paternity of the child. 4. The learned Sub-Divisional Judicial Magistrate on the basis of the agreement of the parties on 18-8-2006 directed that blood samples be collected from the second party and from the child and the collected blood samples were ordered to be sent to the Forensic Science Laboratory (FSL), Kahilipara for a DNA report on the paternity of the child. The Senior Scientific Officer of the FSL, in his report of 10-11-2006 opined that the DNA Test shows that the petitioner (second party) is not the biological father of the baby Gouranga Neogi, born to the first party. 5. But notwithstanding the negative DNA report, the teamed Court on the basis of the oral testimony of the first party and her grand-mother, concluded that the circumstantial evidence proves that the second party is the father of the child and on that basis ordered for paying maintenance @ Rs. 1000/-for the up-keep of the male child, born to the first party. 6. Mr. 1000/-for the up-keep of the male child, born to the first party. 6. Mr. J.M. Choudhury, learned senior counsel argues that the petitioner used to reside in his house along with his two brothers and since DNA Test conclusively established that the petitioner is not the father of the child born to the first party, the learned Court could not have decided the case on the basis of the oral testimony of PW.1 and PW.3 by ignoring the DNA Test report. He refers to Section 293 of the CrPC to argue that the report of the FSL expert is admissible evidence and since the DNA Test was conducted with the consent of both the parties, the learned Court could not have ignored the DNA Test report to declare that the petitioner is the father of the child. 7. The first party examined herself as PW.1 in the case and she stated that being induced by the promise of marriage, she cohabited with the second party and then she became pregnant. PW.2 (the father of the first party) learnt about the pregnancy from the grand-mother of the first party. He testified that the first party was engaged to do household work by the mother of the petitioner. The grand-mother of the first party was examined as PW.3. She stated that the mother of the second party had engaged the first party to do their household work and in the absence of the mother, the second party had physical relationship with her grand-daughter who was a consenting party since the second party had promised to marry her. 8. The petitioner examined himself as DW.1 and denied having any physical relationship with the first party and also denied that he is father of the child born to the respondent. 9. In a case based on a paternity claim, I feel it would be unsafe to reach a conclusion solely on the mother's assertion on the paternity of the child, without independent corroboration of the mother's testimony particularly in the face of a negative DNA Test report. Merely because the first party was engaged for domestic chores in the house of the petitioner, can't give rise to the presumption that there was a physical relationship between the petitioner and the first party and that the petitioner has fathered the child of the first party. Merely because the first party was engaged for domestic chores in the house of the petitioner, can't give rise to the presumption that there was a physical relationship between the petitioner and the first party and that the petitioner has fathered the child of the first party. This is particularly relevant as there were other male members in the same household and one of them offered to bear the cost of abortion and the DNA Test ruled out that the petitioner is the biological father of the child, born to the first party. 10. In the above circumstances, in the absence of any corroboration of the testimony of the first party from independent witnesses, it is held that the learned Court had erred in declaring the petitioner to be the father of the respondent's son. In the process, the Court ignored the material evidence and made a declaration which, on the face of it, was contrary to the DNA evidence given by the FSL. 11. It must also be borne in mind that the petitioner from the very stage of filing the written statement, had denied the paternity claim and offered to undergo a DNA Test to prove that he hadn't the fathered the child, born to the respondent. The respondent too agreed for the DNA Test and on the basis of the consent of the parties, the learned Court passed order on 18-8-2006 for conducting a DNA Test to determine the paternity of the child. Thus the parties themselves had agreed to resolve the paternity controversy through a scientific test. 12. In the above circumstances, when the DNA Test proved to be negative, the learned Court could not have ignored the forensic evidence and declare on the basis of the so called 'circumstantial evidence' that, the petitioner is the father of the child born to the respondent. Consequently the direction given to the petitioner to pay maintenance to the respondent's child is found to be unjustified and the same is accordingly quashed. The Revision Petition is allowed accordingly, without any order on cost. Petition allowed.