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2014 DIGILAW 1112 (AP)

Banoth Krishna v. Banoth Vimala

2014-09-04

B.SIVA SANKARA RAO

body2014
Judgment : 1. The revision petitioner is the husband of the revision 1st respondent and father of the revision2nd respondent as per their claim in the M.C. No.7 of 2013 against the revision petitioner who disputes the same. It is in the M.C.No.7 of 2013 pending trial, the M.C. Petitioners filed the Crl.M.P.No.279 of 2013 under Section 45 of the Indian Evidence Act for D.N.A test to the M.C.-2nd petitioner and M.C-respondent on paternity dispute. The same was allowed. Impgning the same, the M.C-respondent filed this revision petition against said order dated dated 22.04.2014 passed by the Principal Judicial magistrate of the First Class, Kothagudem in Crl.M.P.No.279 of 2013 in M.C. No.7 of 2013 allowing the petition filed under Section 45 of Indian Evidence Act with a direction to undergo DNA test for paternity test before A.P.F.S.L, Hyderabad. 2. The contention of the revision petitioner is that no such relief can be granted in a proceedings under Section 125 Cr.P.C as it is a summary proceeding and not to provide for full and final determination of the status and personal rights of parties that too at the fag end of the proceedings i.e., before advancing arguments and further contended that the Court below by going beyond the scope of the provisions of Section 125 Cr.P.C allowed the petition and prayed to allow the revision by setting aside the impugned order. The main contention of M.C-respondent is that he is Banoth Krishna and P.W-1 in her cross-examination deposed that her marriage was performed with Banoth Kishan and again stated as Krishna; while saying Kishan is her paternal uncle’s son. Thereby her husband is some other person and the son is not born to him. 3. Whereas learned counsel for the revision-respondent Nos.1 and 2 contended that to prove the pleadings of the wife regarding the relationship, there is no other way except to undergo the DNA test and the trial Court when rightly allowed the petition, there are no grounds to set aside the order passed by the trial Court and hence to dismiss the revision. 4. Heard both sides at length and perused the material on record including the evidence of P.W-1 and the copies of Exs.A-1 to A-11 and Exs.R-1 to R-11 marked in the maintenance case besides the petition and counter in the maintenance case as well as the Section 45 Evidence Act petition. 4. Heard both sides at length and perused the material on record including the evidence of P.W-1 and the copies of Exs.A-1 to A-11 and Exs.R-1 to R-11 marked in the maintenance case besides the petition and counter in the maintenance case as well as the Section 45 Evidence Act petition. Among the Exs.A-1 to A-11, Exs.A-1 to A-8 are the photos and negatives, others are the list of marriage gifts, lagna patrika and the study certificate of the child Ganesh, showing B.Krishna who is husband of her and father of M.C-2nd Petitioner. Among Exs.R-1 to R-11 wedding invitation of B.Krishna (Respondent) with Shanti, Singareni Collieries Medical attendance book and certificate of him, his wife, parents and 2 children and not showing the M.C-petitioners names so also the household supply card, study certificate of Banoth Ganesh as son of Kishan, Indiramma pension scheme statement of names in voters lists. 5. Now, the points that arise for consideration are (i) Whether the impugned order of the learned Magistrate is unsustainable and while sitting in revision the same is liable to be set aside by this Court and if so with what observations? (ii) To what relief? POINT No.(i) 6. The evidence on record let in by the parties also covers in support of the rival contentions. In view of the above, it is by considering the D.N.A test for paternity determination is required, the lower Court allowed the petition and how far while sitting in revision this Court can interfere is the issue. POINT No.(i) 6. The evidence on record let in by the parties also covers in support of the rival contentions. In view of the above, it is by considering the D.N.A test for paternity determination is required, the lower Court allowed the petition and how far while sitting in revision this Court can interfere is the issue. Needless to repeat the factual matrix referred supra but for to say the respondent seriously disputes his relationship with M.C-petitioners as detailed above the the latest expression of the Apex Court by the two Judges bench in Nandlal Wasudeo Badwaik V. Lata nandlal Badwaik ( (2014)2 SCC 576 ) laid down the law by scanning the entire case law on the factual dispute relating to the disputed legitimacy of child in the maintenance case filed by the wife for herself and for the daughter, the husband since disputes the paternity saying the child was not born to him; in holding that under Sections 4 and 101 to 117 of Indian Evidence Act, 1872, in particular, Section 112 of Indian Evidence Act while the truth or fact is known, there is no need or room for any presumption, interest of justice is best served by ascertaining the truth and the Court should be furnished with the best available science to the facts in issue and when there is a conflict between a ‘conclusive proof’ envisaged under law based on a presumption (section 4 read with Section 112 of Indian Evidence Act, 1872) and a proof based on scientific advancement (DNA) accepted by the world community to be correct, the latter must prevail over the former and such scientific proof provided by DNA test report is acceptable against presumption of legitimacy of child to rebut conclusively. Hence, a direction to the appellant-husband to pay maintenance for the child is held set aside by ordering DNA test. Hence, a direction to the appellant-husband to pay maintenance for the child is held set aside by ordering DNA test. For that conclusion, it also referred earlier expressions of the Apex Court in Gountam Kundu V. State of West Bengal( (1993)3 SCC 418 ), Banarsi Dass V. Teeku Dutta( (2005)4 SCC 449 )and Bhabani Prasad Jena( (2010)8 SCC 633 ) in particular among paras 10 and 11 with conclusion at para 20 that neither in Kamti Devi nor in other cases relied by the respondent referred supra, was the Surpreme Court confronted with the situation in which a DNA test report, in fact, was available and was in conflict with the presumption of conclusive proof of legitimacy of the child under Section 112 of the Evidence Act. 7. The other decision referred by this Court in Baridi Vanajakshmi V. Buridi Venkata Satya Varaha Prasad Gangadhar Rao ( 2010(4) ALT 441 ) in a matrimonial dispute under Section 13 of Hindu marriage Act, application filed for DNA examination under Section 45 of Indian Evidence Act on right of privacy held as not absolute, when medical examination may remove misunderstanding between parties; in order to dismiss the revision, confirming the order of the matrimonial Court and for that conclusion referred Banarsi Dass’s case, Goutam Kundu’s case referred supra and other expression in Sharda V. Dharmpal (2003(3) ALT 41 (SC)), Ramkanya Bai V. Bharatram (2009(8) SCJ 849) and two expressions of this Court in B.Vandana Kumari V. P.Praveen Kumar (2007(1)ALT 193) and Shaik Fakruddin V. Shaik Mohammed Hasan ( 2005(6) ALT 97 ) case. From the expressions in the above matrimonial cases, one thing is clear that anybody can contest the right of privacy under Article 21 of the Constitution of India for subject to D.N.A examination, for which the Court may consider to remove or dispel any misunderstanding between the couple. However, by considering above proposition of law in applying to the present facts, in maintenance matter under Section 125 Cr.P.C which is quasi civil in nature, particularly summary in nature and even for that there must be a factual foundation with some oral evidence of alleged denial of the relationship and then to take the scientific examination to substantiate. 8. However, by considering above proposition of law in applying to the present facts, in maintenance matter under Section 125 Cr.P.C which is quasi civil in nature, particularly summary in nature and even for that there must be a factual foundation with some oral evidence of alleged denial of the relationship and then to take the scientific examination to substantiate. 8. In fact, the law is well settled in maintenance cases that a stray act of adultery or disputing the paternity is not a sole ground to refuse maintenance when marriage and its subsistence not in dispute. Here, the revision petitioner-husband is disputing his liability to pay maintenance to the revision respondents saying the child is not born to him and even the 1st respondent is not his wife. Then, it is only when there is some evidence, she can seek D.N.A test to substantiate as a solid proof. Here from the above expressions, the test that can be permitted is not confined to matrimonial matters relating to divorce or restitution of conjugal rights, but also extended from the latest expression in Nandlal Wasudeo Badwaik (supra), including in maintenance proceedings under Section 125 Cr.P.C from dispute of legitimacy. 9. In this regard the husband’s plea that he had no access to the wife when the child was begotten can be proved by the DNA test report and in the face of it, this Court cannot compel the revision petitioner to bear the fatherhood of a child, when the scientific reports if prove to the contrary and further the innocent child may not be bastardized as the burden is on the mother to prove the revision petitioner is the father, from the marriage also in dispute, equally of any conjugal life. 10. Having regard to the above, with reference to the oral evidence on record, the DNA test helps as a sold proof on truth of the dispute of paternity. When such is the case, the lower Court is right in allowing the application and as such for this Court while sitting in revision, there is nothing to interfere. Accordingly, the point No.1 for consideration is answered. POINT No.2: 11. In the result, the revision petition is dismissed. As a sequel the miscellaneous petitions pending if any stand closed.