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Andhra High Court · body

2012 DIGILAW 510 (AP)

Madharapu Prashu Ram v. Shaik Janibhee

2012-06-12

K.S.APPA RAO

body2012
Judgment : Aggrieved by the orders dated 22.09.2010 passed in Criminal M.P.No. 2756 of 2010 in M.C.No. 10 of 2010 on the file of Court of the Judicial Magistrate of First Class, Huzurnagar, the present Criminal Revision Case is filed. The petitioner herein is the alleged husband of the first respondent and the father of the second respondent. For convenience sake, the parties hereinafter are referred to as they are arrayed in the lower Court. The petitioners filed M.C.No. 10 of 2010 under Section 125 (1) Cr.P.C claiming maintenance against the respondent. According to the averments in the petition, the first petitioner is wife and the second petitioner is the daughter of the respondent. The respondent in the month of December 2005, asked the first petitioner to marry him. Since the respondent already having wife and children, the first petitioner refused to marry him. The respondent said that he is having Ac. 6.00 wet land and out of same, he gave Ac. 3.00 to his wife and divorced her, and he is prepared to give the remaining Ac. 3.00 to the first petitioner if she agrees to marry him. Accordingly, the respondent convinced the first petitioner to marry him by executing a document on plain papers alienating Ac. 3.00 wetland in favour of first petitioner and finally married her in the house of her parents at Sarwaram Village. During their wedlock, they were blessed with the second petitioner and thereafter, differences arose in between them. Petitioners also filed photographs showing the scheme applied under girl-child protection to the District Collector, Nalgonda. But, during the pendency of the proceedings in MC, the respondent disputed the marriage with the first petitioner and denied the relationship with the petitioners. The first petitioner filed a petition claiming interim maintenance under Section 125(1) of Cr.P.C. Thereafter, she also filed a petition in Crl.M.P.No. 2756 of 2010 under Section 45 of the Indian Evidence Act, requesting to refer both parties for scientific examination i.e., DNA test for proving that the second petitioner is the child of the first petitioner and respondent. The Trial Court, after due enquiry, allowed the said petition through the impugned order referring the petitioners and respondent for DNA test. Aggrieved by the same, the present Criminal Revision Case is filed. The Trial Court, after due enquiry, allowed the said petition through the impugned order referring the petitioners and respondent for DNA test. Aggrieved by the same, the present Criminal Revision Case is filed. The learned counsel appearing for the revision petitioner-husband mainly argued that there is no relationship between the petitioners and the respondent and the respondent has not married the first petitioner and he is not aware of the second petitioner and the photographs filed by the first petitioner are only concocted. It is also his further contention that the first petitioner might have begot the second petitioner through her first husband and that the respondent has no relationship with them and denied the paternity of the second petitioner. He also further argued that referring the parties in matrimonial cases for DNA test was many times found fault by the Supreme Court and in support of his argument placed reliance on the decision reported in THOGORANI @ K. DAMAYANTI VS. STATE OF ORISSA AND OTHERS (2004) 2 ALT (CRL) 22 , (2004) 4 CRIMES 76 ), wherein the Supreme Court observed that “taking blood sample of the accused-opposite party No. 3, in the instant case, will not amount to the accused becoming a witness against himself and thus a direction if issued to collect blood sample from the accused-opposite party No. 3 conducting DNA test would not in any way take away his rights enjoyed under Article 20(3) of the Constitution”. While attacking the said arguments, the learned counsel appearing for the respondents submits that the Court, if found that there is a prima facie material to refer the petitioner for DNA in matrimonial cases, can refer the same, and he draw the attention of the Court to the decision of the Delhi High Court reported in NARAYAN DUTT TIWARI VS. ROHIT SHEKHAR AND ANOTHER (FAO (OS) NO. 44/2011 AND CM 1795/2011 DATED 7.2.2011). The relevant portion at paragraph (iv) of the order is extracted hereunder for ready reference: “On the facts of this case and the materials on record, the Court is satisfied that there is eminent need to direct the first defendant to furnish his blood samples, for the purpose of DNA testing; Respondent No. 1 has filed a Suit for Declaration and Permanent Injunction pleading, inter alia, that he has no intention of claiming any benefit, financial or otherwise, out of his relation with the Appellant. It has been pleaded that the plaintiff’s mother, Defendant No. 2, stayed with her father as she was estranged from her husband. Defendant No. 1 is stated to have convinced the plaintiff’s mother that if she bore him a child, he would divorce his wife who had not had children; that although in the official records the plaintiff was shown as the son of Shri Bimal Prasad Sharma, but in actuality the plaintiff was treated by the Appellant as his son. It has further been averred in the plaint that the ‘plaintiff finds it very difficult to bear the injustice that has been done to him and also the refused to bear the burden of illegitimacy that has been put to him due to the irresponsible and inhuman conduct’ of the appellant. It has been recorded that the plaintiff is willing to go through a DNA test and that the appellant should do likewise. The prayers in the plaint are that a decree for declaration be passed, declaring the plaintiff as the naturally born son of the appellant which the appellant should acknowledge. The plaint is accompanied by an application praying that by an ad interim order the appellant may be directed to submit himself for a DNA test; it is this application, which has been allowed in the impugned order. We have heard the parties in complete detail and, therefore, proceed to decide the Appeal. Mr. Jayant Bhushan, learned senior counsel for the appellant, has relied on Goutam Kundu vs. State of West Bengal, (1993) 3 SCC 418 , Kamti Devi Vs. Poshi Ram, 2001 (5) SCC 311 , Sharda Vs. Dharampal, 2003 (4) SCC 493 , Banarasi Das Vs. Mrs. Teeku Dutta, 2005 (4) SCC 449 , Sham Lal vs. Sanjeev Kumar, 2009 (12) SCC 454 , Ramkanya Bai vs. Bharatram, 2010 (1) SCC 85 and Bharat Matha vs. R. Vijaya Ranganatham, 2010 (11) SCC 483 . Sharda was delivered by Three-Judge Bench which considered as many as forty-five precedents, including Kundu and Ningamma vs. Chikkaiah, AIR 2000 Karnataka 50. In paragraph 39, the Three-Judge Bench in Sharda opined that “Gautam Kundu is, therefore, not an authority for the proposition that under no circumstances the court can direct that blood tests be conducted. It, having regard to the nature of the child, has, of course, sounded a note of caution as regard mechanical passing of such order. In paragraph 39, the Three-Judge Bench in Sharda opined that “Gautam Kundu is, therefore, not an authority for the proposition that under no circumstances the court can direct that blood tests be conducted. It, having regard to the nature of the child, has, of course, sounded a note of caution as regard mechanical passing of such order. In some other jurisdictions, it has been held that such direction should ordinarily be made if it is in the interest of the child’ (underlining inserted). After a detailed analysis of the decisions rendered on this point, their Lordships enunciated the law in the following words: 80. So viewed, the implicit power of a court to direct medical examination of a party to a matrimonial litigation in a case of this nature cannot be held to be violative of one’s right of privacy. 81. To sum up, our conclusions are:- (1) A matrimonial court has the power to order a person to undergo medical test. (2) Passing of such an order by the court would not be in violation of the right to personal liberty under Article 21 of the Indian Constitution. (3) However, the court should exercise such a power if the applicant has a strong prima facie case and there is sufficient material before the court. 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. A detailed discussion of earlier decisions, which are of smaller Benches, will only lead to prolixity, which should be zealously avoided. However, in Sham Lal, a Two-Judge Bench has held that once the validity of marriage is proved and parents have access to each other, adultery of wife which though amounts to very strong evidence, is, by itself, not quite sufficient to repel the presumption of legitimacy of children born from such wedlock and that is undesirable to enquire into paternity of a child in such cases.” A plain reading of the above judgment, the Supreme Court has given guidelines that a Matrimonial Court has power to order a person to undergo medical test and passing of such an order would not be in violation of the right to personal liberty under Article 21 of the Indian Constitution. However, the Court should exercise such a power if the applicant has a strong prima facie case and there is sufficient material before the Court. In support of his arguments, he placed reliance on MOTHYUKURI SHIVAKUMAR @ CHITTI BABU VS. MOTHUKURI NARAYANAMMA AND OTHERS ((2008) 2 LAD (CRI) 369), CHALUMURI ROHIT NARIDU VS. CHALUMURI RAMA RAO ( (2011) 5 ALT 94 ), MARADA VENKATESWARA RAO VS. OLETI VARALAKSHMI AND OTHERS ( (2008) 2 ALT 348 , (2008) 0 AIR (AP) 195, (2008) 2 ALD 293 )and BURIDI VANAJAKSHMI VS. BURIDI VENKATA SATYA VARAHA PRASAD GANGADHAR RAO ( (2010) 4 ALT 441 , 2010 0 AIR (AP) 172). The point that arises for consideration is whether the impugned order dated 22.9.2010 is sustainable? POINT: The respondent denied the relationship with the petitioners even though they filed photographs and certificates issued by the District Collector, Nalgonda. The case of the respondent is of total denial. He neither admitted the relationship with the first petitioner nor the paternity of the second petitioner with him. When there is a total denial of relationship by the party in matrimonial matters, the only alternative is to prove the said relationship through scientific examination. It is a case where the petitioners filed the petition under Section 45 of the Indian Evidence Act, requesting the Court to refer both parties for scientific examination i.e., DNA test as the respondent denied the relationship and the paternity of the child. In the instant case, as noticed above, the contention raised between the parties is whether the child born during the alleged continuance of the marriage. Having regard to the nature of the proceedings in the main M.C, undoubtedly, the issue of paternity of the child is also an important one for an effective adjudication of the controversy between the parties. It is also true that DNA test by itself would not discharge the burden of proof placed on the respondent-husband. Hence, in my considered opinion the present case is deserving one where DNA test can be directed to be conducted. The Trial Court also while discussing the material on record, referred the petitioners and respondent to DNA test for ascertaining the truth. Hence, in my considered opinion the present case is deserving one where DNA test can be directed to be conducted. The Trial Court also while discussing the material on record, referred the petitioners and respondent to DNA test for ascertaining the truth. For the aforesaid reasons and also by placing reliance on the decisions submitted by the counsel appearing for the petitioners-respondents herein, the order under revision referring the respondent-revision petitioner herein to DNA test along with petitioners is sustainable and the same does not warrant any interference by this Court. In the result, the Criminal Revision Case is dismissed while confirming the orders passed by the Trial Court.