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2013 DIGILAW 57 (ALL)

Ram Bali Mishra v. Siyadevi @ Vakilin and Another

2013-01-07

VINAY KUMAR MATHUR

body2013
Vinay Kumar Mathur, J.— Heard learned counsel for the revisionist and learned counsel for the caveators/respondents and perused the record. 2. The instant revision has been preferred against the order dated 27.11.2012 whereby the applications 46-C and 48-C of respondents-plaintiffs seeking permission to file papers and praying for D.N.A., test respectively have been allowed. In Original Suit No. 740 of 2008 by learned Additional District Judge, Court No. 3, Hardoi. It has been submitted by learned counsel for the revisionist that the respondents filed Original Suit No. 740 of 2008 for maintenance against the revisionist claiming that respondent No. 1 is legally wedded wife of the revisionist while respondent No. 2 is their daughter. It has been contended in the plaint that the alleged marriage between the revisionist and respondent No. 1 had taken place about 40 years ago and respondent No. 2 was born out of this wedlock. It is also stated in the plaint that the respondents were turned out of the house by the revisionist nearly 27 years ago and the revisionist is residing with a lady Uma as his keep. The suit was contested by the revisionist in which he denied his alleged marriage with respondent No. 1 and stated that respondent No. 2 is not his daughter. He also categorically stated that Smt. Uma is his wedded wife who was married with him and he has three children from Smt. Uma. The eldest child is a daughter while the other two are sons. All of them have been married. Evidence was recorded and after the evidence 46-C application seeking permission to file papers and another application C-48 for D.N.A. test were moved and vide the impugned order the said two applications have been wrongly and arbitrarily allowed by the learned Additional District Judge. 3. Further submission is that an application under Section 125 Cr.P.C., has also been moved by the respondents in the Court of Judicial Magistrate in which an interim order was passed awarding interim maintenance against the revisionist which was challenged under Section 482 Cr.P.C., by the revisionist and in the order dated 13.04.2011 another Bench of this Court has found prima facie that it was established by the revisionist herein on the basis of the record produced, that Uma Devi is the legally wedded wife of the revisionist. 4. 4. In this view, it was ordered that the impugned order shall not be imposed till the final decision of the Court. 5. Learned counsel has also submitted that in the case of Rajni Aggarwal Vs. Sushma Aggarwal 2010 (111) RD 464 Hon'ble Single Judge of this Court has held that dispute in respect of a valid marriage does not fall in the category where D.N.A., test is required. The relevant guidelines have been summarized in this judgment. In Banarasi Das Vs. Tiku Dutta (2005) 4 SCC 449 , the Hon'ble Supreme Court has held that D.N.A., test should not be directed as a matter of routine and only in the deserving cases such a direction should be given. Lastly, the learned counsel for the revisionist has submitted through the D.N.A. test, the fact that marriage between the revisionist and respondent No. 1 was solemnized cannot be proved. The Court below without due application of mind has allowed both the applications and the impugned orders are not sustainable. 6. Learned counsel for the caveators/respondents has submitted that since the factum of marriage and the status of respondent No. 2 as the daughter of the revisionist has been denied by the revisionist and reliable evidence to prove the marriage and paternity was lacking in some respect, therefore, an application for conducting D.N.A. matching was moved which after due consideration was allowed by the Court concerned exercising its jurisdiction which duly vested in it. The impugned order is not without jurisdiction and the Court below has exercised its discretion as such, the same cannot be challenged and set aside casually. The revisionist is apprehensive that the truth may come and he may be exposed that is why he is avoiding the D.N.A., test/matching. Learned counsel further submitted that the impugned order does not fall within category of case decided and is a inter-locutory order and no material illegality or irregularity has been committed while passing the said order by the Court below. No prejudice will be caused to the parties and the jurisdiction vested in the Court below has been rightly exercised, as such the impugned order which is perfectly legal requires no interference. In support of her arguments, learned counsel for the respondents has relied upon the judgment of this Court in Cantonment Board Lucknow and other Vs. District Judge (Incharge) Lucknow and others 2006 (24) LCD 798. 7. In support of her arguments, learned counsel for the respondents has relied upon the judgment of this Court in Cantonment Board Lucknow and other Vs. District Judge (Incharge) Lucknow and others 2006 (24) LCD 798. 7. The order dated 13.04.2011 passed in Case No. 1695 of 2011 under Section 482 Cr.P.C. dated 13.04.2011 is an inter-locutory order in which the Court prima facie found that Uma Devi is legally wedded wife of the petitioner Rambali revisionist herein. Therefore, the same has no binding effect. As regards the case of Banarasi Das Vs. Tiku Dutta 2005 (4) SCC 449 wherein paragraph 14 of the judgment, the Hon'ble Supreme Court has held the view of the Trial Court was erroneous as the D.N.A. test should not be directed as a matter of routine and only in deserving cases such a direction can be given as was noted in Goutam Kundu's case 4 (2001) 5 SCC 311 . It is also true that the Trial Court being a testamentary Court should leave the parties to prove their respective cases by such evidence produced during the trial rather than creating evidence by directing D.N.A. test and the Court must carefully examine the consequences of ordering blood test. However, it cannot be said that the learned Court below was not competent to order for D.N.A. test by allowing the application. 8. I am in agreement with the submissions of the learned counsel for the revisionist that the result of D.N.A. test will not be conclusively proof of the factum of marriage. In Rajni Aggarwal Vs. Sushma Aggarwal 2010 (111) RD 464 Hon'ble Single Judge of this Court has held that D.N.A. test should not be directed as a matter of routine and directions can be given only in deserving cases. In paragraph 4 of the judgment it has been observed that in case the plaintiff-respondent No. 1 therein is able to establish her legal and valid marriage, the provisions of Section 112 of the Evidence Act will automatically come into play in order to establish the paternity of plaintiff-respondent No. 2. It may be clarified that the judgment of the Hon'ble Single Judge has only persuasive value and is not binding in the instant matter. It may be clarified that the judgment of the Hon'ble Single Judge has only persuasive value and is not binding in the instant matter. From the perusal of the record it appears that the marriage as has been claimed in the petition is stated to have taken place about 40 years ago and out of the said wedlock respondent No. 2/plaintiff in the suit was born. The impugned order dated 27.11.2012 appears to have been passed after the plaintiffs completed their evidence. From the perusal of the impugned order, it is also apparent that the learned Court below has not considered the guidelines and the circumstances under which direction for D.N.A. test may be given. It is apparent that while allowing the application for D.N.A. test learned court below has failed to examine the fact whether on the basis of oral evidence/documentary evidence given, can the factum of marriage was determinable. The guidelines for directing a D.N.A. test given in the various judgments cited in the body of this judgment were also not taken into account while allowing the application. It may be clarified again that the Court below is empowered to order for D.N.A. test but the same has to be ordered only in deserving matters and in the light of the guidelines which have been provided by the Hon'ble Supreme Court/High Court. 9. In this view of the matter, the impugned order which has been passed without due application of judicial mind and following the legal position in respect of application 48-C, deserves to be set aside, however, the order on 46-C does not warrant any interference as the same has neither been challenged nor there is any infirmity/illegality in it. It will be open for the learned Court below to pass proper orders afresh on application 48-C taking into account the peculiar facts of the matter and in the light of the guidelines as contained in the judgments of Hon'ble Supreme Court referred to in the body of this judgment after affording opportunity to both the parties as far as possible within one month from the date a certified copy of this order is placed before it. 10. With these observations, the revision is finally disposed of at the admission stage. _____________