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Himachal Pradesh High Court · body

2014 DIGILAW 1421 (HP)

Ravi Kumar v. Reeta Devi

2014-10-14

TARLOK SINGH CHAUHAN

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Judgment Tarlok Singh Chauhan, J. This petition under Section 397 of the Code of Criminal Procedure is directed against the order dated 19.4.2014 passed by learned Additional Chief Judicial Magistrate, Joginder Nagar, District Mandi, H.P. in Cr.M.A. No. 226-IV/2013 whereby he has ordered the petitioner to pay interim maintenance of Rs.1,000/- each to the respondents and has declined the request of the petitioner for DNA test upon the respondent No.2. 2. The facts, in brief, may be noted. The marriage between the petitioner and respondent No.1 was solemnized according to Hindu rites on 12.12.2002 at village Patta, Tehsil Joginder Nagar, District Mandi, H.P. The respondent No.1 gave birth to respondent No.2 on 30.6.2003 at Sanjivan Hospital, Mandi. It is the allegation of the petitioner that the child was born after full term delivery, while only a period of six months had elapsed after the marriage of the petitioner and respondent No.1 and accordingly when the petitioner asked for an explanation, respondent No.1 and her parents started pressurizing the petitioner to accept the respondent No.2 as his son. It is further claimed that in order to increase the magnitude of harassment towards the petitioner, respondent No.1 and her parents got registered a false case against the petitioner under Section 498-A IPC at Police Station, Joginder Nagar, District Mandi, in which case he was acquitted. 3. It is further claimed that in order to get out of the repeated harassment faced by the petitioner, he filed a petition under Section 12-D read with Section 13-1 (a) of the Hindu Marriage Act for dissolution and annulment of marriage, which was dismissed by the learned Additional District Judge (Fast Track Court), Mandi on 31.3.2012. 4. The respondents on the other hand, filed a petition under Section 125 of the Code of Criminal Procedure for grant of maintenance at the rate of Rs.5,000/- per month to each of the respondents and also sought litigation expenses amounting to Rs.20,000/-. 5. The petitioner filed reply and disowned respondent No.2 to be his son and he further contended that DNA test should be conducted on the respondent No.2, so as to prove his paternity and that the respondent (petitioner) was ready to bear all the expenses qua the DNA test. 5. The petitioner filed reply and disowned respondent No.2 to be his son and he further contended that DNA test should be conducted on the respondent No.2, so as to prove his paternity and that the respondent (petitioner) was ready to bear all the expenses qua the DNA test. Vide order dated 19.4.2014, the learned Additional Chief Judicial Magistrate, Joginder Nagar, Mandi allowed the petition for grant of maintenance, which order is impugned in these proceedings as being against the facts and law. 6. The respondents further contended that in the proceedings filed by the petitioner under Section 12-D for annulment and dissolution of marriage, it had been specifically pleaded that respondent No.2 had not been born out of the marriage inter se the petitioner and respondent No.1. After the parties led their evidence, the learned Court below has given specific findings that the petitioner had failed to prove that he had no access to respondent No.1 prior to solemnization of marriage and, therefore, had failed to displace the presumption under Section 112 of the Evidence Act. It was further found that the evidence on record did not support the case of the petitioner that at the time of marriage he was ignorant about the pregnancy of the respondent No.1. It was further submitted that in the above stated position, the order passed by the learned Additional District Judge (Fast Track Court) having attained finality, it did not lie in the mouth of the petitioner to question the paternity of respondent No.2 repeatedly. 7. I have heard Mr. Vikram Thakur, assisted by Mr. Vivek Thakur, learned counsel for the petitioner and Ms. Rita Goswami assisted by Ms. Komal Chaudhary, learned counsel for the respondents and have also gone through the records carefully. 8. The petitioner has agitated that this is a fit case where in order to know the real biological father of respondent No.2, it was necessary, he be subjected to a DNA test because admittedly the child was born within 200 days of the marriage and no presumption of legitimacy under Section 112 of the Evidence Act could be invoked in the present case. 9. Learned counsel for the petitioner in support of first submission has relied upon the judgment of the Hon’ble Supreme Court in Narayan Dutt Tiwari vs. Rohit Shekhar and another (2012) 12 SCC 554. 9. Learned counsel for the petitioner in support of first submission has relied upon the judgment of the Hon’ble Supreme Court in Narayan Dutt Tiwari vs. Rohit Shekhar and another (2012) 12 SCC 554. In that case, the Hon’ble Supreme Court affirmed the order passed by the Delhi High Court directing Sh. Tiwari to undergo a DNA test, so as to establish the relationship of father and son between the petitioner and respondent therein. 10. The learned counsel for the petitioner would then rely upon the judgment of the Hon’ble Supreme Court in Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik and another AIR 2014 SC 932 to contend that when the presumption of Section 112 of the Evidence Act is not applicable, then the only basis by which the Court can come to know about the parentage of person by adopting scientific test of DNA. He has relied upon the following observations of the Hon’ble Supreme Court: “16. As stated earlier, the DNA test is an accurate test and on that basis it is clear that the appellant is not the biological father of the girl- child. However, at the same time, the condition precedent for invocation of Section 112 of the Evidence Act has been established and no finding with regard to the plea of the husband that he had no access to his wife at the time when the child could have been begotten has been recorded. Admittedly, the child has been born during the continuance of a valid marriage. Therefore, the provisions of Section 112 of the Evidence Act conclusively prove that respondent No. 2 is the daughter of the appellant. At the same time, the DNA test reports, based on scientific analysis, in no uncertain terms suggest that the appellant is not the biological father. In such circumstance, which would give way to the other is a complex question posed before us. 17. We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancement and DNA test were not even in contemplation of the Legislature. The result of DNA test is said to be scientifically accurate. Although Section 112 raises a presumption of conclusive proof on satisfaction of the conditions enumerated therein but the same is rebuttable. The presumption may afford legitimate means of arriving at an affirmative legal conclusion. The result of DNA test is said to be scientifically accurate. Although Section 112 raises a presumption of conclusive proof on satisfaction of the conditions enumerated therein but the same is rebuttable. The presumption may afford legitimate means of arriving at an affirmative legal conclusion. While the truth or fact is known, in our opinion, there is no need or room for any presumption. Where there is evidence to the contrary, the presumption is rebuttable and must yield to proof. Interest of justice is best served by ascertaining the truth and the court should be furnished with the best available science and may not be left to bank upon presumptions, unless science has no answer to the facts in issue. In our opinion, when there is a conflict between a conclusive proof envisaged under law and a proof based on scientific advancement accepted by the world community to be correct, the latter must prevail over the former. 18. We must understand the distinction between a legal fiction and the presumption of a fact. Legal fiction assumes existence of a fact which may not really exist. However presumption of a fact depends on satisfaction of certain circumstances. Those circumstances logically would lead to the fact sought to be presumed. Section 112 of the Evidence Act does not create a legal fiction but provides for presumption. 19. The husband’s plea that he had no access to the wife when the child was begotten stands proved by the DNA test report and in the face of it, we cannot compel the appellant to bear the fatherhood of a child, when the scientific reports prove to the contrary. We are conscious that an innocent child may not be bastardized as the marriage between her mother and father was subsisting at the time of her birth, but in view of the DNA test reports and what we have observed above, we cannot forestall the consequence. It is denying the truth. “Truth must triumph” is the hallmark of justice.” 11. The argument of the learned counsel for the petitioner though appears to be attractive, but it only merits rejection because in the proceedings for dissolution and annulment of marriage, it was the specific stand of the respondent No.1 that the petitioner had access to her prior to marriage as would be clear from the following averments made in the rejoinder to those proceedings: “1. That the para No.1 of reply is not admitted to be correct, except admission of the replying respondent pertaining to marriage. Be it stated here that from the very inception of the marriage, the petitioner is/was regularly residing in the conjugal society of respondent in the house of respondent, situated in Village Makrana and respondent is/was serving as carpenter at Place Balakrupi, one and half K.M. from the residential house of respondent. It is not out of place to mention here that betrothal ceremony inter alia the parties to lis has commenced on dated 13.10.2002 by that time the petitioner was undergoing the course of tailoring at place Mandi, Palace Colony, Mandi (H.P.) and was residing at Khaliyar, the respondent persistently requested the petitioner for dating, and in the intimate moments the respondent has commenced sexual intercourse, despite the decline for the same by petitioner, who was made to understand by respondent that as the marriage has already been fixed on dated 12.12.2012, as such, he has got prerogative of being would be husband upon the petitioner, doth petitioner could not dare to annoy the respondent, resultantly petitioner conceived the child, which fact was duly in the knowledge of respondent and on similar facts the H.M.P. No. 30/2005 (16/2004) has since been dismissed, wherein the bone of contention was based on the same false accusation of adultery but factum of access of respondent with petitioner has since been proved, consequently petition was dismissed and now having no prima-facie case and no plausible reason to assail and re-allege the adultery and call for DNA test is only pretext to make out the false defence, which even otherwise exists none in fact or law and respondent cannot be allowed to take the advantage of his own wrong doings. It is reasserted to be correct that out of the wedlock of petitioner No.1 and respondent one son namely Ankit Kumar, petitioner No.2 was born on 30.06.2003, it is altogether wrong and denied that the petitioner No.1 after the marriage allowed the respondent to have sexual intercourse with her for two months and thereafter the petitioner No.1 refuse to have the same with the respondent and started making excuses to have pain in her stomach as alleged in this para of reply. It is partly correct that on 30.6.2003 petitioner reveal her mother in law that she is suffering pain in her stomach and she was hospitalized in Govt. It is partly correct that on 30.6.2003 petitioner reveal her mother in law that she is suffering pain in her stomach and she was hospitalized in Govt. Hospital, Joginder Nagar where petitioner alongwith respondent use to periodically got her check up and concerned doctor solicited that though the days for delivery are yet to be there but he observed, since it is a case of premature delivery, as such with the same endorsement referred the case to Zonal Hosital Mandi but respondent and his parents malafidely in connivance with their relations got master Ankit delivered in Sanjeevan Hospital, Mandi (H.P.) with the sole motive to create the concocted record, respondent in camouflage manner have twisted the real facts who is/was in know of the actual facts, that it is on account of his own bodily urge that prior to commencement of marriage he being having access to petitioner has gone through her, as such there was no occasion for any kind of surprise qua the pregnancy, it is totally wrong and denied that respondent before marriage never met with the petitioner and it is all baseless that before the solemnization of marriage the respondent has never any sexual intercourse prior to solemnization of marriage i.e. 12.12.2002 especially in view of the facts elucidated hereinabove, it is categorically denied that respondent inquired the matter from petitioner No.1 and her parents and they started pressurizing the respondent to accept the newly born child as child of respondent but respondent refuse to accept the child to be the child of respondent, whereas true matrix is that respondent is the father of child master Ankit, since the petitioner is suffering from titubations under this pretext respondent use to pass sarcastic remarks off and on and make the petitioner realise that respondent and his family are ashamed of her physique and use to call the petitioner as tharakmundi, not only this much but the respondent and his family members have tortured the petitioner, maltreated her which has resulted in the registration of the criminal case, though on technicalities all the accused were acquitted, the repeated allegations that petitioner No.1 was already pregnant at the time of marriage and it was concealed by the petitioner from the respondent and petitioner No.2 was not fathered by respondent all these allegations are without bases since respondent has regularly gone through the petitioner No.1 and enjoyed the matrimonial society was already in know of the facts that it is he who is the father of child and was knowing the fact of pregnancy, it is all whimsical that respondent did not smell that petitioner was pregnant, as such allegation to contrary as contained in this para of reply being wrong are denied.” 12. These allegations of the petitioner have gone unrebutted and the findings recorded by the learned Additional District Judge (Fast Track Court) based on these pleadings dismissing the claim of the petitioner for annulment and dissolution of marriage, have attained finality and in such circumstances, this Court cannot order the DNA test in a matter of course as this would amount to having a roving inquiry and in fact Court would not risk this exercise which will virtually have the effect of branding the child as a bastard and mother as an unchaste woman. 13. In directing a person to undergo DNA test, there may not be a violation of the right to life or privacy of a person, but then the power of the Court to DNA test has to be exercised cautiously after weighing all “pros and cons” and satisfying that the “test of ‘eminent need’” for such an order, is fulfilled. It cannot be directed on the mere asking of a party, the Court cannot allow a father, who is resisting parenthood at the cost of bastardizing the child on his mere asking. 14. In view of the specific findings recorded by the learned Additional District Judge (Fast Track Court) whereby it was held that the petitioner had access to respondent No.1 even prior to the marriage and the same admittedly have attained finality and after balancing the interest of the parties and after due consideration of the material on record, I do not find that it is a fit case where a DNA test is eminently needed or even call for. 15. Accordingly, there is no merit in this petition and the same is dismissed leaving the parties to bear their own costs.