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2012 DIGILAW 2358 (BOM)

Vinod Arlekar v. Yesh A. Arlekar

2012-12-17

F.M.REIS

body2012
Judgment: Heard Shri J.J. Mulgaonkar, learned Counsel appearing for the petitioner and Shri A. Nachinolkar, learned Counsel appearing for respondent no.1 and Ms. M. Pinto, learned Additional Public Prosecutor appearing for respondent No.2. 2. Rule. Heard forthwith with the consent of the learned Counsel. Learned Counsel appearing for the respondents waive service. 3. The above petition filed under Section 482 of the Code of Criminal Procedure Code, 1973 seeks to quash and set aside the judgment and order dated 31/07/2012 passed by the learned Additional Sessions Judge, Fast Track, South Goa, Margao in Criminal Revision Application No.77/2011 and the order dated 20/09/2011 passed by the learned Judicial Magistrate First Class, Vasco in Maintenance Application No.4/2010/C. 4. Briefly, the facts of the case are that the respondent no.1 claiming to be the son of the petitioner filed proceedings for maintenance under Section 125 of the Criminal Procedure Code. The fact that the respondent no.1 is the son of the petitioner has been disputed by the petitioner in his reply. 5. During the course of the recording of evidence in support of the case put forward by the respondent no.1, an application came to be filed by the said respondent to subject the petitioner for paternity test by application dated 6/08/2011. The said application came to be opposed by the petitioner inter alia on the ground that such application was not maintainable in proceedings under Section 125 of the Criminal Procedure Code and further that the petitioner had no access to the the mother of the respondent no.1 and consequently the question of claiming that respondent no.1 was the son of the petitioner would not arise. It is further their case that the respondent no.1 has not brought any prima facie evidence to establish that such paternity test is to be ordered by the Court. 6. After hearing the parties, the learned JMFC by order dated 20/09/2011 directed the petitioner to subject himself to paternity test. Being aggrieved by the said order the petitioner preferred a Criminal Revision before the learned Additional Sessions Judge which came to be dismissed by judgment dated 31/07/2012. Being aggrieved by the said judgment the petitioner filed the above petition seeking to quash the said orders passed by the Courts below. 7. Being aggrieved by the said order the petitioner preferred a Criminal Revision before the learned Additional Sessions Judge which came to be dismissed by judgment dated 31/07/2012. Being aggrieved by the said judgment the petitioner filed the above petition seeking to quash the said orders passed by the Courts below. 7. Shri J.J. Mulgaonkar, learned Counsel appearing for the petitioner has assailed the impugned orders on the ground that the respondent no.1 has failed to establish that his mother had any access to the petitioner and consequently the question of the petitioner establishing no access cannot be accepted. The learned Counsel further pointed out that the question of directing paternity test in the proceedings under Section 125 of the Criminal Procedure Code is not at all justifiable. The learned Counsel has thereafter taken me through the material on record and pointed out that there are contradictions on the part of the mother of the petitioner which suggest that the whole case put forward by the respondent no.1 is concocted and without any basis. The learned Counsel has further pointed out that the party is not entitled as a matter of right to direct the petitioner for paternity test unless and until some prima facie material has been produced to show that there was access with the petitioner. The learned Counsel further pointed out that it is the case of the petitioner that he did not know the mother of the petitioner at all and, as such, the question of there being any access with the petitioner is totally without any foundation. The learned Counsel further pointed out that directing paternity test is in breach of Article 21 of the Constitution of India and consequently the Courts below were not justified to direct such paternity test. The learned Counsel further pointed out that records in the birth certificate are always rebuttable and in any event it is an unilateral act on the part of the mother of the respondent no.1, which otherwise would have to be considered at the time of the hearing of the main matter for maintenance. Considering the defence raised by the petitioner that he does not at all know the mother of the respondent no.1 at this stage such presumption stands rebutted. Considering the defence raised by the petitioner that he does not at all know the mother of the respondent no.1 at this stage such presumption stands rebutted. The learned Counsel in support of his submissions has relied upon the judgments of the Apex Court reported in AIR 2003 SC 3450 in the case of Sharda V/s. Dharmpal, AIR 1993 SC 2295 in the case of Goutam Kundu V/s. State of West Bengal. The learned Counsel in support of his submission has also relied upon the judgment of the learned Single Judge of this Court dated 1/04/2001 passed in Criminal Writ Petition No.1050/2010 where this Court had permitted such paternity test. The learned Counsel, as such, submits that the impugned orders passed by the Courts below be quashed and set aside. 8. On the other hand, Shri A. Nachinolkar, learned counsel appearing for the respondent no.1 has supported the impugned orders. The learned Counsel pointed out that considering that now there are scientific ways of conducting the paternity test, the Apex Court as well as the Delhi High Court has accepted that a child is entitled to know who are his parents and consequently the Courts below were justified to subject the petitioner to paternity test. The learned Counsel has further pointed out that it is now well accepted that such paternity test is conclusive and, as such, the learned Magistrate was justified to direct the petitioner to subject himself to paternity test. The learned Counsel further pointed out that the respondent no.1 has brought enough evidence on record by examining two of his family members to establish the access of the petitioner with his mother. The learned Counsel further pointed out that even the mother who has been examined has categorically stated that the father of the respondent no.1 is the petitioner. The learned Counsel further pointed out that in the birth certificate of the respondent no.1 immediately after he was born the name of the petitioner in official records has been clearly shown. The learned Counsel further pointed out that there is overwhelming evidence on record to suggest that the petitioner is the father of the respondent no.1 and the contention of Shri Mulgaonkar, learned counsel appearing for the petitioner to the effect that there is no prima facie evidence to substantiate such contention is totally misplaced. The learned Counsel further pointed out that there is overwhelming evidence on record to suggest that the petitioner is the father of the respondent no.1 and the contention of Shri Mulgaonkar, learned counsel appearing for the petitioner to the effect that there is no prima facie evidence to substantiate such contention is totally misplaced. The learned Counsel has also relied upon the judgment of the Apex Court reported in 2010 (8) SCC 633 in the case of BhabaniPrasad Jena V/s. Convenor Secretary, Orissa State Commission for Women and anr. andthe judgment of the Hon'ble Delhi High Court dated 27/04/2012 in FAO(OS) No.547/2011 and dated 23/12/2010 in IA No.4720/2008 in the case of RohitShekhar V/s. Narayan Dutt Tiwari & Anr. whereinthe paternity test was directed to be performed. The learned Counsel, as such, submits that the above petition deserves to be rejected. 9. I have carefully considered the submissions of the learned Counsel and have also gone through the records. With regard to the first contention of the learned Counsel appearing for the petitioner that such application cannot be filed in the proceedings under Section 125 of the criminal Procedure Code, I find that the said submission is without any merit. In fact, in the judgment of the Apex Court relied upon by Shri Mulgaonkar, learned Counsel appearing for the petitioner in the case of GautamKundu (supra) there were observations therein that such test can be permitted in proceedings under Section 125 of Criminal Procedure Code. Apart from that, an issue is raised by the petitioner with regard to the paternity of the respondent no.1 and as such, there is no reason to refuse such paternity test in the facts and circumstances of the case. As such, the first contention of Shri Mulgaonkar, learned Counsel deserves to be rejected. 10. With regard to the two judgments relied upon by Shri Mulgaonkar, learned Counsel appearing for the petitioner in the case of GoutamKundu (supra) and Sharda(supra) both the said judgments were considered by the Apex Court in the case of BhabaniPrasad Jena (supra). The Apex Court at para 23 after considering the said judgments has observed thus: "23. There is no conflict in the two decisions of this Court, namely, Goutam Kundu and Sharda. The Apex Court at para 23 after considering the said judgments has observed thus: "23. There is no conflict in the two decisions of this Court, namely, Goutam Kundu and Sharda. In Goutam Kundu it has been laid down that courts in India cannot order blood test as a matter of course and such prayers cannot be granted to have roving inquiry; there must be strong prima facie case and the court must carefully examine as to what would be the consequence of ordering the blood test. In Sharda while concluding that a matrimonial court has power to order a person to undergo a medical test, it was reiterated that the court should exercise such a power if the applicant has a strong prima facie case and there is sufficient material before the court. Obviously, therefore, any order for DNA test can be given by the court only if a strong prima facie case is made out for such a course." The conclusion, as such, by the Apex Court is that such DNA test can always be directed in cases in which strong prima facie case is made out for such course to be taken. 11. In the light of the ratio laid down by the Apex Court, we shall now examine the facts on record whether the learned JMFC was justified to pass the impugned order. The respondent no.1 has produced his birth certificate which was registered on 28/06/1996. The respondent no.1 is stated to be born on 11/05/1996. This shows that immediately after the birth of the respondent no.1 his mother had given a declaration before the official Authorities that the father of the respondent no.1 was the petitioner herein. Apart from that, the respondent no.1 has also examined his uncle who corroborated the statements to the effect that the petitioner is the father of the respondent no.1. On perusal of the evidence of the mother of the respondent no.1, I find that prima facie, there is enough material on record to establish her claim that the petitioner was the father of respondent no.1. Apart form that, the witnesses examined by the respondent no.1 also corroborate the said fact. The said facts would have to be considered in the light of the defence being taken by the petitioner herein. Apart form that, the witnesses examined by the respondent no.1 also corroborate the said fact. The said facts would have to be considered in the light of the defence being taken by the petitioner herein. Strangely, the defence of the petitioner is that he does not know the brother of the respondent no.1 at all. If that was the case, there is no explanation as to in what circumstances the mother of the respondent no.1 had disclosed the name of the petitioner as the father of the respondent no.1 at the time of the registration of the birth way back in June, 1996. There is also material on record to suggest that the mother of the respondent no.1 was a nurse at Vasco Clinic and the circumstance in which the said mother came in contact of the petitioner has also been disclosed by AW1 who is the mother of the respondent no.1. Apart from that, it is not in dispute that the petitioner was also the resident of Vasco at the relevant time. All these circumstances draw a strong prima facie case to support the case of the respondent no.1 that the petitioner be subjected to paternity test. The documentary evidence adduced by the respondent no.1 coupled with the oral evidence on record at this stage is sufficient enough for the Court to direct that the paternity test/DNA test be performed on the petitioner. Hence, the contention of Shri Mulgaonkar, learned Counsel appearing for the petitioner to the effect that there was no prima facie material on record to justify that the petitioner be directed to subject himself for paternity test cannot be accepted. The learned Single Judge of the Delhi High Court in the judgment in the case of ShriNarayan Dutt Tiwari (supra) relied upon by the learned Counsel appearing for the respondent no.1 has at para 41,44(ii) and (iii) observed thus: “41. The learned Single Judge of the Delhi High Court in the judgment in the case of ShriNarayan Dutt Tiwari (supra) relied upon by the learned Counsel appearing for the respondent no.1 has at para 41,44(ii) and (iii) observed thus: “41. As far as the first defendant's submission that incalculable harm would ensue if he is directed to undergo DNA testing is concerned, on the ground that doing so would be sanctioning the dubious motives of grasping individuals, who may collusively level false allegations, with a view to profit and extort from vulnerable persons, the Court notices that there are sufficient guidelines framed by virtue of the law declared in Goutam Kundu and Bhabani Prasad Jena, which the Court must follow; these are: (i) Existence of a fair degree of prima facie case (revealing non-access); (ii) welfare of the child; (iii) A need to balance the rights of two competing claims, i.e. the one for paternity and the one for privacy (or autonomy), and direct a test if there is eminent need to do so. 44(ii) A "paternity" action by the son or daughter of one, claiming the defendant to be his or her biological father, filed in Court, particularly after the plaintiff as in this case, attains adulthood, or claims paternity, for other reasons, (such as non-consensual sexual relationship the basis of facts, and on the basis of the child's rights/either under Section 125 Cr.P.C., or in a suit for declaration or for maintenance) cannot be jettisoned by shutting out evidence, particularly based on DNA test reports, on a threshold application of Section 112; the Court has to weigh all pros and cons, and, following the ruling in Kundu and Jena (supra), on being satisfied about existence of "eminent need" make appropriate orders; 44(iii) The development of statute law-through enactment of the Hindu Adoptions and Maintenance Act, 1956, the Criminal Procedure Code, 1973 and the Family Courts Act, 1984, read together with a child's right to knowledge about her or his natural parentage has added a new dimension where the concept of paternity or a claim, cannot be ousted by Section 112 and concerns of legitimacy, underlying it." 12. The learned Single Judge of this Court in the judgment dated 1/04/2011 in Criminal Writ Petition No.1050 of 2010 in the case of Sangita & Anr. V/s. Arjun & Anr. (supra) has observed at para 9 thus: “9. The learned Single Judge of this Court in the judgment dated 1/04/2011 in Criminal Writ Petition No.1050 of 2010 in the case of Sangita & Anr. V/s. Arjun & Anr. (supra) has observed at para 9 thus: “9. Bearing in mind the observations of the Apex Court in the matter of Sharda, as stated above, in the petition in hand, the question is only about the welfare of the child i.e. the 2nd petitioner, and it depends upon the result of the DNA test as to whether he will get the name of his father and consequently the maintenance. In the modern society, one may get the fame, but it is though very difficult yet essential to get the father's name, which can decide his status in the society. Here the question is about the paramount consideration of the welfare of the child and to decide the status of the 2nd petitioner and as the consent is given for DNA test by the present respondent No.1 in his cross examination before the Lower Court, it cannot be said that it would amount to compel him to face the D.N.A. Test. This is the only hurdle in between the welfare of the minor child, and to remove ti, it is necessary to set aside the order impugned.” 13. Hence, considering the ratio laid down in the judgments (supra) what is of importance is the welfare of the minor child. In the present case, it is not in dispute that the child is presently studying. Considering the welfare of the minor child, which would affect his future career, I find that in the facts and circumstances of the case the learned JMFC was justified to direct the paternity test to be conducted on the petitioner. The learned Additional District Judge, as such, has not committed any error in dismissing the revision preferred by the petitioner. The other contention of Shri J.J. Mulgaonkar, the learned Counsel to say that some adverse infereance is to be drawn for non-examining the sisters of mother of the respondent no.1 is not a matter which has any barring at this stage in the view taken by me that there was strong prima facie case to conduct the paternity test on the petitioner at this stage. 14. Shri A. Nachinolkar, learned Counsel appearing for the respondent no.1 points out that this Court had directed to deposit Rs.10,000/-. 14. Shri A. Nachinolkar, learned Counsel appearing for the respondent no.1 points out that this Court had directed to deposit Rs.10,000/-. In the facts and circumstances of the case, the Registry is directed to pay the said costs to respondent no.1 herein. 15. Hence, I find no merit in the above petition. Consequently, the petition stands rejected. Rule stands discharged.