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2014 DIGILAW 233 (CHH)

Taresh Kumar v. Sohan Kumar

2014-06-24

SANJAY K.AGARWAL

body2014
ORDER 1. This revision is directed against the order dated 30.11.2013 passed by Family Court, Korba in M.J.C. No. 100 of 2010 whereby the application under Section 125 of the Code of Criminal Procedure, 1973 (for short Cr. P.C.) filed by respondent herein has been allowed granting Rs. 500/- monthly allowance for maintenance. 2. The application was filed by minor Sohan Kumar stating inter alia that marriage of Smt. Ratna was solemnized with Taresh Kumar applicant herein according to prevalent custom and the marital dispute between the parties was settled in M.J.C. No. 179 of 2008 on 28.1.2009 before the Family Court and the Family Court directed them to live together, accordingly, the respondents mother Smt. Ratna Bai started living with Taresh Kumar with effect from 16.02.2009 and became pregnant in the month of April, 2009 and thereafter, on the pretext of treatment, Taresh Kumar sent her to her parental house and, since then applicant has neither taken care of respondent nor respondents mother, she was admitted to Govt. District Hospital, Korba on 8.1.2010 and on the same day, she delivered a male child namely Sohan Kumar, respondent herein, information of which was given by Smt. Ratna Bai over telephone to the applicant, despite that the applicant did not come there to see and did not care to maintain him leading to filing of the application as he is unable to maintain himself and the applicant is working in the BALCO and earning Rs. 8,000/- per month. 3. The applicant herein has filed reply and opposed the application and denied the paternity of minor Sohan Kumar. 4. The trial Court, after appreciating the evidence of the parties, came to the conclusion that pursuant to the order dated 28.1.2009 passed by Family Court passed in M.J.C. No. 179 of 2008, Smt. Ratna started living with applicant - Taresh Kumar as a husband and wife with effect from 16.2.2009 and delivered a male child namely Sohan Kumar on 8.1.2010 in the District Hospital, Korba. The Family Court further recorded a finding relying upon the provisions of Section 112 of the Indian Evidence Act, 1872 (henceforth Act, 1972) that minor Sohan respondent herein was born during the continuance of a valid marriage between Ratna and present applicant Taresh Kumar and within 280 days from 16.02.2009 and further recorded a finding that as minor Sohan Kumar has no source of income and he is unable to maintain himself, granted Rs. 500/- per month as maintenance to him. Against this order of the Family Court, instant revision has been filed challenging the order as unsustainable in law. 5. Shri Vinod Kumar Tekam, learned counsel appearing for the applicant would submit that order passed by the Family Court granting maintenance allowance to the extent of Rs. 500/- is bad in law as the application for DNA test filed by the applicant was rejected by the Family Court on 28.7.2011 on unsustainable grounds and as such the impugned order deserves to be set aside. 6. I have heard learned counsel appearing for the applicant and perused the order impugned with utmost circumspection. 7. The short question that arises for consideration is whether the Family Court is justified in rejecting the application for DNA test holding the respondent to be legitimate son of applicant in view of provisions contained in Section 112 of the Indian Evidence Act? 8. Section 112 of the Indian Evidence Act, 1872 states as under:- "112. Birth during marriage, conclusive proof of legitimacy - The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the, legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotton." 9. It is also appropriate at this stage to consider the definition of the expression conclusive proof as given in Section 4 of the Evidence Act, which reads as under: Conclusive proof - When one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disapproving it. 10. 10. The expression conclusive proof shall have to be read along with Section 112 of the Act. A combined reading of both the provisions would make it clear that if a person is born during the continuance of a valid marriage or within 280 days after the dissolution of the marriage and the mother remains unmarried, that fact is the conclusive proof that he is the legitimate son of the man, unless it can be shown that the parties to the marriage had no access to each other at any time, when that person could have been begotten. Legitimacy is the conclusive proof when it is shown that the son was born during the continuance of the marriage or within 280 days after the dissolution of the marriage when the mother remains unmarried. Once it is the conclusive proof, it admits of no evidence to disprove the same. The only manner in which the conclusive presumption can be avoided is by proving the non-access in between the husband and wife when the son could have been begotten. 11. The Supreme Court in case of Smt. Dukhtar Jahan vs. Mohammed Farooq, 1987 Cri. L.J. 849, considering Section 112 of the Indian Evidence Act, 1872 has held that rule of law based on the dictates of justice has always made the Courts incline towards upholding the legitimacy of a child. Paras 12 & 13 of the report states as under:- 12. This rule of law based on the dictates of justice has always made the Courts incline towards upholding the legitimacy of a child unless the facts are so compulsive and clinching as to necessarily warrant a finding that the child could not at all have been begotten to the father and as such a legitimation of the child would result in rank injustice to the father. Courts have always desisted from lightly or hastily rendering a verdict and that too, on the basis of slender materials, which will have the effect of branding a child as a bastard and its mother an unchaste woman. 13. To drive home the point, we may refer to some of the reported cases where the Courts have applied the rule of evidence contained in Section 112 of the Indian Evidence Act and declared the legitimacy of a child born during wedlock, even though the child has been born prematurely. 13. To drive home the point, we may refer to some of the reported cases where the Courts have applied the rule of evidence contained in Section 112 of the Indian Evidence Act and declared the legitimacy of a child born during wedlock, even though the child has been born prematurely. In Mahbub All vs. Taj Khan, AIR 1915 Lahore 77(2), it was held that a boy born about 7 months after his father and mother were lawfully married and who had opportunity of access to each other at the time he could have been begotten, must be held to be the legitimate son of his parents. In Khan Singh vs. Natha Singh, AIR 1925 Lahore 414, the defendants father was married to the defendants mother on 2nd August, 1889 and the defendant was born on 23rd January, 1890. Even so it was held that the defendant being born during the continuance of the marriage between his parents, he is his parents legitimate son unless it is shown that his parents had no access to each other at any time when he could have been begotten and that it is immaterial how soon after the marriage the defendant was born. 12. After having examined the statutory provisions contained in Section 112 of the Evidence Act and the principles laid down by their Lordships of the Supreme Court in this regard, falling back to the facts of the case, it appears that pursuant to the compromise recorded by the jurisdictional Family Court in M.J.C. Case No. 179 of 2008, dated 28.1.2009, mother of the respondent - Smt. Ratna started living with the applicant as husband and wife with effect from 16.2.2009 and became pregnant in the month of April, 2009 and thereafter, the applicant sent her to her parental house on 19.05.2009, where she delivered a male child namely Sohan Kumar, respondent herein on 8.1.2010 at District Hospital, Korba. Thus, the non-applicant had born within 280 days from the date on which she started living with the applicant. Thus, the conclusive presumption of legitimacy provided in Section 112 of the Evidence Act is squarely attracted to the facts of the case in hand. Thus, the non-applicant had born within 280 days from the date on which she started living with the applicant. Thus, the conclusive presumption of legitimacy provided in Section 112 of the Evidence Act is squarely attracted to the facts of the case in hand. The applicant could avoid the operation of the conclusive presumption under Section 112 of the Evidence Act by proving no access at the relevant time and, thus, it is held that learned trial Court is absolutely justified in holding that minor Sohan Kumar is legitimate son of applicant born during the subsistence of valid marriage between Taresh Kumar and Smt. Ratna Bai and said finding of fact is based on evidence available on record. 13. The Family Court by order 28.7.2011, rejected the applicants application for DNA test holding that minor son Sohan Kumar is legitimate child of the applicant in view of Section 112 of the Indian Evidence Act, 1872. 14. The DNA stands for deoxyribonucleic acid, which is the biological blueprint of every life. DNA is made-up of a double standard structure consisting of a deoxyri-bose sugar and phosphate backbone, cross-linked with two types of nucleic acids referred to as adenine and guanine, purines and thymine and cytosine pyrimidines. The most important role of DNA profile is in the identification, such as an individual and his blood relations such as mother, father, brother, as so on. Successful identification of skeleton remains can also be performed by DNA profiling. DNA usually can be obtained from any biological material such as blood, semen, saliva, hair, skin, bones, etc. The question as to whether DNA tests are virtually infallible may be a moot question, but the fact remains that such test has come to stay and is being used extensively in the investigation of crimes and the Court often accepts the views of the experts, especially when cases rest on circumstantial evidence. Please See para-34 of the judgment of the Supreme Court in case of Dharam Deo Yadav vs. State of Uttar Pradesh, 2014 (4) SCALE 730 : 2014 Cri. L.J. 2371 (SC). 15. The Supreme Court in case of Goutam Kundu vs. State of West Bengal and Another, (1993) 3 SCC 418 : 1993 Cri. L.J. 3233 (SC), has considered the contents of Section 112 of the Evidence Act and held as under:- 26. L.J. 2371 (SC). 15. The Supreme Court in case of Goutam Kundu vs. State of West Bengal and Another, (1993) 3 SCC 418 : 1993 Cri. L.J. 3233 (SC), has considered the contents of Section 112 of the Evidence Act and held as under:- 26. From the above discussion it emerges :- (1) That courts in India cannot order blood test as a matter of course. (2) Wherever applications are made for such prayers in order to have roving inquiry, the prayer for blood test cannot be entertained. (3) There must be a strong prima facie case in that the husband must establish non-access in order to dispel the presumption arising under Section 112 of the Evidence Act. (4) The court must carefully examine as to what would be the consequence of ordering the blood test; whether it will, have the effect of branding a child as a bastard and the mother as an unchaste woman. (5) No one can be compelled to give sample of blood for analysis. 16. Further, the Supreme Court in case of Banarsi Dass vs. Teeku Dutta (Mrs.) and Another, (2005) 4 SCC 449 has held that direction of DNA test should be given only in deserving cases and not as a matter of routine and held as under:- 14. This is not a correct view. It is for the parties to place evidence in support of their respective claims and establish their stands, DNA test is not to be directed as a matter of routine and only in deserving cases such a direction can be given, as was noted in Goutam Kundu case (supra). Present case does not fall in that category. 17. The Supreme Court in case of Kamti Devi vs. Poshi Ram, (2001) 5 SCC 311 : AIR 2001 SC 2226 , has held as under:- 10. We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancements with deoxyribonucleic acid (DNA) as well as ribonucleic acid (RNA) tests were not even in contemplation of the legislature. The result of a genuine DNA test is said to be scientifically accurate. We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancements with deoxyribonucleic acid (DNA) as well as ribonucleic acid (RNA) tests were not even in contemplation of the legislature. The result of a genuine DNA test is said to be scientifically accurate. But even that is not enough to escape from the conclusiveness of Section 112 of the Act e.g. if a husband and wife were living together during the time of conception but the DNA test revealed that the child was not born to the husband, the conclusiveness in law would remain irrebuttable. This may look hard from the point of view of the husband who would be compelled to bear the fatherhood of a child of which he may be innocent. But even in such a case the law leans in favour of the innocent child from being bastardised if his mother and her spouse were living together during the time of conception. Hence the question regarding the degree of proof of non-access for rebutting the conclusiveness must be answered in the light of what is meant by access or non-access as delineated above. 18. In Bhabani Prasad Jena vs. Convenor Secretary, Orissa State Commission for Women & Another, (2010) 8 SCC 633 : AIR 2010 SC 2851 , their Lordships of Supreme Court has clearly laid down the principle on which the direction for DNA test in a matter relating to paternity of child can be given and held as under:- 21. In a matter where paternity of a child is in issue before the court, the use of DNA test is an extremely delicate and sensitive aspect. One view is that when modern science gives the means of ascertaining the paternity of a child, there should not be any hesitation to use those means whenever the occasion requires. The other view is that the court must be reluctant in the use of such scientific advances and tools which result in invasion of right to privacy of an individual and may not only be prejudicial to the rights of the parties but may have devastating effect on the child. Sometimes the result of such scientific test may bastardise an innocent child even though his mother and her spouse were living together during the time of conception. 22. Sometimes the result of such scientific test may bastardise an innocent child even though his mother and her spouse were living together during the time of conception. 22. In our view, when there is apparent conflict between the right to privacy of a person not to submit himself forcibly to medical examination and duty of the court to reach the truth, the court must exercise its discretion only after balancing the interests of the parties and on due consideration whether for a just decision in the matter, DNA test is eminently needed. DNA test in a matter relating to paternity of a child should not be directed by the court as a matter of course or in a routine manner, whenever such a request is made. The court has to consider diverse aspects including presumption under Section 112 of the Evidence Act; pros and cons of such order and the test of eminent need whether it is not possible for the court to reach the truth without use of such test. 19. A conspectus of the above referred judgments shows that the Court has the power to order a person to undergo DNA test. However, the Court should exercise such a power only when strong prima facie and eminent need is made out for such test as DNA test is extremly delicate and sensitive and it should not be directed as a matter of course or in a routine matter. Merely because the applicant/father denied the paternity of non-applicant, having regard to the nature of the proceedings filed and the other admitted facts emanating from the respective pleadings and in view of clear cut finding recorded by the Family Court that the respondent is legitimate son of applicant relying upon conclusive presumption of legitimacy under Section 112 of the Indian Evidence Act, in the considered opinion of this Court, the Family Court is absolutely justified in rejecting the applicants application dated 28.07.2011 for DNA test for examining paternity of minor child Sohan Kumar. I do not find any illegality in the impugned order warranting interference of this Court under its revisional jurisdiction. 20. Concludingly, the revision petition being devoid of merit is liable to be and is hereby dismissed. No order as to costs. Petition dismissed.