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2014 DIGILAW 3665 (MAD)

C. Thangavel v. P. Vijayalakshmi

2014-09-25

C.T.SELVAM

body2014
Judgment : 1. Challenging the order of learned Judicial Magistrate II, Gobichettipalayam, passed in C.M.P.No.772 of 2009 in M.C.No.10 of 2007 on 27.07.2009, the present revision has been filed. 2. Petitioner and the first respondent are husband and wife and the second respondent is their son. Due to misunderstandings between them, the first respondent left the matrimonial home. The petitioner has filed H.M.O.P.No.54 of 2005 on the file of learned Sub-ordinate Judge, Mettur, seeking restitution of conjugal rights and later, the same was withdrawn by the petitioner. Thereafter, the petitioner filed H.M.O.P.No.106 of 2007 on the file of learned Subordinate Judge, Mettur, seeking divorce. Disputing the parentage of the second respondent son, the petitioner has filed I.A.No.91 of 2008 in H.M.O.P.No.106 of 2007 seeking conduct of a DNA test and the same was dismissed under orders dated 12.11.2008. Challenging the same, the petitioner filed C.R.P.(PD) No.4122 of 2008 before this Court, which was dismissed under orders dated 12.01.2009 recording the memo filed by the first respondent informing her willingness for divorce and granting liberty to the petitioner to raise his contentions in other proceedings pending between them. The first respondent has filed M.C.No.10 of 2007 on the file of learned Judicial Magistrate II, Gobichettipalayam, seeking maintenance in a sum of Rs.5,000/-per month for her son. Therein, the petitioner has filed C.M.P.No.772 of 2009 seeking conduct of DNA test towards determining the parentage of the child. By the order under challenge, the Court below dismissed such petition. 3. It is the contention of learned counsel for petitioner that the first respondent/wife had conceived even before the marriage between the petitioner and the respondent on 04.03.2004 and the conduct of a DNA test was essential to prove the petitioner’s case. Learned counsel relied on the judgment of the Apex Court in Sharda v. Dharmpal 2003 (2) CTC 760 : AIR 2003 SC 3450 : (2003) 4 SCC 493 : LNIND 2003 SC 366. 4. Heard learned counsel for respondents on the above submission. 5. The decision in Sharda v. Dharmpal (supra), arose in a case where medical examination of a wife was sought towards establishing her state of mind. Therein, it is informed that compelling a person to undergo medical examination under an order of Court would not be violative of rights to one’s right to privacy/liberty guaranteed under Article 21 of he Constitution of India. Therein, it is informed that compelling a person to undergo medical examination under an order of Court would not be violative of rights to one’s right to privacy/liberty guaranteed under Article 21 of he Constitution of India. In such case, the applicability of Section 112 of the Indian Evidence Act did not even rise for consideration. Section 112 of the Indian Evidence Act reads thus: “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, them other 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 begotten.” The presumption that Section 112 of the Indian Evidence Act provides is in the nature of conclusive proof. The judgment of the Apex Court in Banarsi Dass v. Teeku Dutta (MRS) and Another (2005) 4 SCC 449 : LNIND 2005 SC 433 : (2005) 2 MLJ 181, informs thus: “9. It was noted that Section 112 of the Indian Evidence Act, 1872 (in short “the Evidence Act”) requires the party disputing the parentage to prove non-access in order to dispel the presumption of the fact under Section 112 of the Evidence Act. There is a presumption and a very strong one, though a rebuttable one. Conclusive proof means proof as laid down under Section 4 of the Evidence Act. 10. In matters of this kind the court must have regard to Section 112 of the Evidence Act. This section is based on the well-known maxim pater is est quem nuptiae demonstrant (he is the father whom the marriage indicates). The presumption of legitimacy is this, that a child born of a married woman is deemed to be legitimate, it throws on the person who is interested in making out the illegitimacy, the whole burden of proving it. The law presumes both that a marriage ceremony is valid, and that every person is legitimate. Marriage or filiation (parentage) may be presumed, the law in general presuming against vice and immorality. 11. It is rebuttable presumption of law that a child born during lawful wedlock is legitimate, and that access occurred between the parents. The law presumes both that a marriage ceremony is valid, and that every person is legitimate. Marriage or filiation (parentage) may be presumed, the law in general presuming against vice and immorality. 11. It is rebuttable presumption of law that a child born during lawful wedlock is legitimate, and that access occurred between the parents. This presumption can only be displaced by a strong preponderance of evidence, and not by a mere balance of probabilities. 12. In Dukhtar Jahan v. Mohd. Farooq (1987) 1 SCC 624 , this Court held: (SCC p.629 para 12) “Section 112 lays down that if a 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 and the mother remains unmarried, it shall be taken as 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 begotten. 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.” The view has been reiterated by this Court in many later cases e.g. Amarjit Kaur v. Harbhajan Singh (2003) 10 SCC 228 . 13. 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. 13. 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 Evidence 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. (See Kamti Devi v. Poshi Ram (2001) 5 SCC 311 ).” 6. In the instant case, there is not even an attempt by the petitioner to inform that he had no access to his wife during the relevant period. His position is rendered worse by the fact that in H.M.O.P.No.54 of 2005 on the file of Sub Judge, Mettur, an action initiated by him seeking relief of restitution of conjugal rights, the petitioner specifically has pleaded that a child was born to him and the first respondent wife on 17.11.2004. This Criminal Revision shall stand dismissed. Consequently, connected miscellaneous petition is closed. Revision dismissed.