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Himachal Pradesh High Court · body

2015 DIGILAW 1378 (HP)

Nand Lal alias Lumcha Ram v. Master Kamal

2015-09-30

RAJIV SHARMA

body2015
JUDGMENT RAJIV SHARMA, J. 1. This petition is instituted against the judgment dated 2.6.2015, rendered by the learned Additional Sessions Judge-II, Shimla in Criminal Revision No. RBT 12-S/10 of 2014/11. 2. Key facts, necessary for the adjudication of this petition are that respondents No. 1 & 2 have filed petition under Section 125 Cr. P.C. through their natural guardian, mother before the JMIC (V), Shimla on 16.10.2004 seeking monthly maintenance. According to the averments made in the petition, the marriage between Smt. Meena Devi and the petitioner Sh. Nand Lal was solemnized in the year 1998 according to local custom. The relation between the parties remained cordial for about 3 months. Thereafter, the petitioner started ill-treating Smt. Meena Devi. She was forced to leave her matrimonial house. She also filed an application before the Gram Panchayat, Baldian seeking maintenance. The petitioner has failed to maintain his children. 3. The averments made in the petition were denied. According to the petitioner, the children were born out of the loins of one Sh. Hem Dass. She had illicit relations with Sh. Hem Dass. It was admitted that Smt. Meena Devi had filed maintenance petition against him before the Gram Panchayat Baldian. He was married to one Smt. Batti Devi. 4. The learned JMIC (V), Shimla dismissed the petition on 28.7.2010. The respondents filed revision petition before the learned Addl. Sessions Judge-II, Shimla. The learned Addl. Sessions Judge-II, Shimla, allowed the same on 2.6.2015. Hence, this petition. 5. AW-1 Yash Pal, has proved certificates AW-1/A and AW-1/B, issued by Principal, Government Primary School, Mashobra, wherein it is certified that as per the admission withdrawal register, Sh. Nand Lal is recorded as father of the respondents. AW-2 Ashok Kumar has proved the salary certificate of the respondent vide Ext. AW-2/A. AW-3 Meena Devi has reiterated the averments made in the petition. She did not know Hem Dass. She denied the suggestion that Smt. Batti Devi was the legally wedded wife of the petitioner for the last 28 years. 6. The petitioner as appeared as RW-1. According to him, he was married with Batti Devi in the year 1980. He denied the factum of marriage with Smt. Meena Devi. He had no relations with her. He also admitted in cross-examination that he filed Civil Suit against Meena Devi to the effect that she was not his legally wedded wife. 6. The petitioner as appeared as RW-1. According to him, he was married with Batti Devi in the year 1980. He denied the factum of marriage with Smt. Meena Devi. He had no relations with her. He also admitted in cross-examination that he filed Civil Suit against Meena Devi to the effect that she was not his legally wedded wife. RW-2 Prem Dass and RW-3 Ghanshyam have stated that Batti Devi was wife of the petitioner. He had no relations with Meena Devi. 7. The mother of the respondents has duly proved her marriage status and long co-habitation with the petitioner. The civil suit filed by the petitioner against Meena Devi to the effect that she was not legally wedded wife has already been dismissed. The petitioner has not placed any tangible evidence on record that he was married to Batti Devi. In Ext. AW-1/A and AW-1/B, the name of the father has been recorded as Nand Lal. 8. An application under Section 391 Cr. P.C. bearing Cr. M.P. No. 261-S/4 of 2013 was filed before the Court seeking necessary directions for conducting the DNA profiling of Nand Lal and Meena Devi. The direction was issued to the petitioner to appear before the Medical Board to be constituted by the IGMC, Shimla for DNA profiling. The petitioner did not appear before the Medical Board on 24.3.2015. The learned Additional Sessions Judge-II, Shimla, has rightly drawn adverse inference against the petitioner. 9. Their lordships of the Hon’ble Supreme Court in the case of Chilukuri Venkateswhwarlu vs. Chilukuri Venkatanarayana, AIR 1954 SC 176 , have held that the presumption, which Section 112 contemplates, is a conclusive presumption of law which can be displaced only by proof of the particular fact mentioned in the Section, namely, non-access between the parties to the marriage at a time when according to the ordinary course of nature the husband could have been the father of the child. It has been held as follows:- “4. It may be stated at the outset that the presumption which section 112 of the Indian Evidence Act contemplates is a conclusive presumption of law which can be displaced only by proof of the particular fact mentioned in the section, namely, non-access between the parties to the marriage at a time when, according to the ordinary course of nature the husband could have been the father of the child. Access and non-access again connote, as has been held by the Privy Council (1), existence and non-existence of opportunities for marital intercourse. It is conceded by Mr. Somayya, who appeared on behalf of the plaintiff appellant, that non-access could be established not merely by positive or direct evidence; it can be proved undoubtedly like any other physical fact by (1) Vide Karapaya vs. Mayandy, 12 Rang 243 evidence, either direct or circumstantial, which is relevant to the issue under the provisions of the Indian Evidence Act, though as the presumption of legitimacy is highly favoured by law it is necessary that proof of non-access must be clear and satisfactory. Mr. Somayya has also not contended seriously before us that the principle of English common law (1), according to which neither a husband nor a wife is permitted to give evidence of non-access after marriage to bastardise a child born in lawful wedlock, applies to legitimacy proceeding in India. No such rule is to be found anywhere in the Indian Evidence Act and it may be noted that the old common law doctrine has itself been abrogated in England by the provision of section 7 of the Matrimonial Cause Act, 1950 (2). 10. In our opinion, the learned judges of the High Court approached the facts of the case from a wrong standpoint altogether and their conclusions are based for the most part upon surmises and speculations and not what was actually proved by the evidence. There is no warrant, we think, for holding that the documents Exs. P-5 and P-6 were in the nature of a separation agreement. Such an inference not only goes against the tenor or the express terms of the documents but is not borne out even by the evidence of the mediators through whose mediation the documents were brought into being or of the persons who were admittedly present at the time when the documents were executed and signed the same as attesting witnesses. Exhibit P-5, as stated already, simply mentions the fact of the third marriage of defendant No. 1 and the institution of a suit for maintenance by his second wife. There is nothing in this document which even impliedly suggests that in consideration of receiving an allowance of Rs. 100 a year, the wife agreed to reside separately from her husband. So far as Ex. There is nothing in this document which even impliedly suggests that in consideration of receiving an allowance of Rs. 100 a year, the wife agreed to reside separately from her husband. So far as Ex. P-6 is concerned, the gift is expressly stated to be an affectionate gift by the husband to the wife and it clearly indicates that it was the intention of the parties that the wife should reside there, and delivery of possession of the house was given to the wife on the very same day that the document was executed. We do not think that there is any justification for holding that these recitals were false and were not intended to be operative. D.W. 8, who is one of the attesting witnesses to the documents and was examined on behalf of defendant No. 1, says in his deposition that the documents were read over to the executant and he executed them after consenting to the recitals. P.W. 5, who was one of the mediators, says that defendant No. 2 used to live in the mudterraced house after compromise. Unless there is cogent evidence to the contrary and apparently there is no such evidence in the present case-we should certainly presume that, the document Ex. P-6 was acted upon and that the possession of the mud-terraced house was actually given to defendant No. 2 in accordance with its terms. The High Court, in its judgment, records a rather curious finding on this point. “It may be thus the judgment runs, that even down to Ex. D-3 one may presume that in the very house allotted to her by Ex. P- 6 she lived, so that up to the date of Ex. D-3 it may be that there is no impossibility of cohabitation between the parties. The real trouble arises with reference to the state of affairs after Ex. D-3. We find in Ex. D- 11 which - is the plaint in O.S. No. 326 of 1944 filed by the present first defendant against the present second defendant for a cancellation of Exs. The real trouble arises with reference to the state of affairs after Ex. D-3. We find in Ex. D- 11 which - is the plaint in O.S. No. 326 of 1944 filed by the present first defendant against the present second defendant for a cancellation of Exs. P-5 and P-6 that he makes a definite allegation therein that from the time that the plaintiff married his third wife there has not been any bodily connection between him and the defendant.” The learned judges, in our opinion, misdirected themselves in allowing these statements made by the husband himself in the suit instituted by him nearly two years after the material period, to influence their decision in regard to the effect of Ex. P-6. Defendant No. 1 definitely admits that his second wife was perfectly chaste at the time when the sum of Rs. 100 was given to her on 5th of October, 1942 and the receipt Ex. D-3 was taken. There is not a scrap of evidence to show that there was any bitterness of feelings between the parties at that time. There could be no doubt that the feelings of the husband were changed and had become extremely bitter towards the plaintiff's mother before he filed the suit for cancellation of the deeds in July, 1944 but the statements made by the husband in the plaint in that suit were made long after the dispute arose between the parties, no matter whatever the reason might be which gave rise to the dispute. In our opinion, the subsequent conduct of defendant No. 1 or the statements made by him in the suit of 1944 could not be regarded as part of the res gestae and were not admissible as evidence against the plaintiff. The defendant No. 1 could not certainly constitute himself an agent of the plaintiff for the purpose of making admissions against the interest of the latter. If the story of defendant No. 1 that the wife went to Eddanapudi and lived there an immoral life is disbelieved, as it has been disbelieved by the High Court, the conclusion becomes irresistible that she did reside at the mud-terraced house as alleged by her and this is fully borne out by the terms of the document Ex. P-6. If the story of defendant No. 1 that the wife went to Eddanapudi and lived there an immoral life is disbelieved, as it has been disbelieved by the High Court, the conclusion becomes irresistible that she did reside at the mud-terraced house as alleged by her and this is fully borne out by the terms of the document Ex. P-6. There is no evidence of any unnatural conduct on the part of defendant No. 1 towards the plaintiffs mother at about the time when the plaintiff was conceived. We do not consider it unreasonable, much less unnatural, if the father of defendant No. 2 alone took her to the hospital at Chirala at the time of her delivery and himself bore all the hospital expenses; nor is it a matter to be surprised at if defendant No. 2 after delivery stayed for several months with her infant child in her father's house. Apparently for some reason or other, the husband took up an unnatural attitude, but this was a subsequent event and whether he had really any grievance against his wife, or his unnatural behaviour was due to the instigation of his third wife, it is not necessary for us to investigate. On the evidence, as it stands, we are clearly of opinion that the defendant No. 1 did not succeed in proving that there was no opportunity for intercourse between him and defendant No. 2 at the time when the plaintiff was conceived. He rested his whole case upon the allegation of unchastity of the plaintiff's mother and of the plaintiff being born as the result of fornication. While rejecting that story, the High Court, in our opinion, erred in holding that there was no opportunity for access between the parties at the material period, relying mainly upon what the husband himself said and did much after the estrangement of feelings took place between the parties, no matter whatever that was due to. In our opinion, on the evidence in the record the findings of the High Court cannot possibly stand. The result is that the appeal is allowed, the judgment and decree of the High Court are set aside and those of the trial judge restored. The plaintiff will have his costs of all the courts.” 10. In our opinion, on the evidence in the record the findings of the High Court cannot possibly stand. The result is that the appeal is allowed, the judgment and decree of the High Court are set aside and those of the trial judge restored. The plaintiff will have his costs of all the courts.” 10. Their lordships of the Hon’ble Supreme Court in the case of Sharda vs. Dharmpal, (2003) 4 SCC 493 , have held that the Hindu Marriage Act or any other law governing the field does not contain any express provision empowering the Court to issue a direction upon a party to a matrimonial proceedings to compel him to submit himself to a medical examination, however, that does not preclude a Court from passing such an order. Their lordships have further held that the primary duty of the Court is to see that truth is arrived at. Thus, the Civil Court although may not have any specific provisions in the Code of Civil Procedure and the Evidence Act, has an inherent power in terms of Section 151 CPC to pass all orders for doing complete justice to the parties to the suit. Under Section 75 (e) and Order 26 Rule 10-A CPC the Civil Court has the requisite power to issue a direction to hold a scientific, technical or expert investigation. It has been held as follows:- “17. The Hindu Marriage Act or any other law governing the field do not contain any express provision empowering the Court to issue a direction upon a party to a matrimonial proceedings to compel him to submit himself to a medical examination. However, in our opinion, this does not preclude a court from passing such an order. We may, however, notice that such provisions have expressly been inserted in England by way of Sections 22 and 23 of the Family Law Reform Act, 1987 on the recommendations of the Law Commission. Sections 23 is to the following terms:- “23. However, in our opinion, this does not preclude a court from passing such an order. We may, however, notice that such provisions have expressly been inserted in England by way of Sections 22 and 23 of the Family Law Reform Act, 1987 on the recommendations of the Law Commission. Sections 23 is to the following terms:- “23. Provisions as to scientific tests (1) for sub-sections (1) and (2) of Section 20 of the Family Law Reform Act, 1969 (power of court to require use of blood tests) there shall be substituted the following sub-sections:- (1) In any civil proceedings in which the parentage of any person falls to be determined, the court may, either of its own motion or on an application by any party to the proceedings, give a direction:- (a) For the use of scientific tests to ascertain whether such tests show that a party to the proceedings is or is not the father or mother of that person. (b) For the taking, within a period specified in the direction, of bodily samples from all or any of the following, namely, that person, any party who is alleged to be the father or mother of that person and any other party to the proceedings. The court may at any time revoke or vary a direction previously given by it under this sub-section.” 32. Yet again the primary duty of a Court is to see that truth is arrived at. A party to a civil litigation, it is axiomatic, is not entitled to constitutional protection under Article 20 of the Constitution of India. Thus, the Civil Court although may not have any specific provisions in the Code of Civil Procedure and the Evidence Act, has an inherent power in terms of Section 151 of the Code of Civil Procedure to pass all orders for doing complete justice to the parties to the suit. 33. Discretionary power under Section 151 of Code of Civil Procedure, it is trite, can be exercised also on an application filed by the party. 34. In certain cases medical examination by the experts in the field may not only found to be leading to truth of the matter but may also lead to removal of misunderstanding between the parties. It may bring the parties to terms. 35. 34. In certain cases medical examination by the experts in the field may not only found to be leading to truth of the matter but may also lead to removal of misunderstanding between the parties. It may bring the parties to terms. 35. Having regard to development in medicinal technology, it is possible to find out that what was presumed to be a mental disorder of a spouse is not really so. 36. In matrimonial disputes, the court has also a conciliatory role to play- even for the said purpose if may require expert advice. 37. Under Section 75(e) of Code of Civil Procedure and Order 26 Rule 10A the Civil Court has the requisite power to issue a direction to hold a scientific, technical or expert investigation.” 11. Their lordships of the Hon’ble Supreme Court in the case of Banarsi Dass vs. Teeku Dutta and Another, (2005) 4 SCC 449 , though have held that conclusiveness of presumption under S.112, could not be rebutted by DNA test, the proof of non-access between the parties to marriage during the relevant period is the only way to rebut that presumption. Their lordships have also put a caveat that DNA test is not to be directed as a matter of routine. It is to be directed only in deserving cases. It has been held as follows:- “13. We may remember that Section 112 of the Evidence Act was enacted at a time when the modem 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. 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. Kamti Devi and Another vs. Poshi Ram, 2001 (5) SCC 311 . 14. The main object of a Succession Certificate is to facilitate collection of debts on succession and afford protection to parties paying debts to representatives of deceased persons. All that the Succession Certificate purports to do is to facilitate the collection of debts, to regulate the administration of succession and to protect persons who deal with the alleged representatives of the deceased persons. Such a certificate does not give any general power of administration on the estate of the deceased. The grant of a certificate does not establish title of the grantee as the heir of the deceased. A Succession Certificate is intended as noted above to protect the debtors, which means that where a debtor of a deceased person either voluntarily pays his debt to a person holding a Certificate under the Act, or is compelled by the decree of a Court to pay it to the person, he is lawfully discharged. The grant of a certificate does not establish a title of the grantee as the heir of the deceased, but only furnishes him with authority to collect his debts and allows the debtors to make payments to him without incurring any risk. In order to succeed in the succession application the applicant has to adduce cogent and credible evidence in support of the application. The respondents, if they so chooses, can also adduce evidence to oppose grant of succession certificate. The trial court erroneously held that the documents produced by the respondents were not sufficient or relevant for the purpose of adjudication and DNA test was conclusive. 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's case (supra). Present case does not fall to that category. 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's case (supra). Present case does not fall to that category. High Court's judgment does not suffer from any infirmity. We, therefore, uphold it. It is made clear that we have not expressed any opinion on the merits of the case relating to succession application.” 12. In the instant case, the direction was rightly issued whereby the petitioner was directed to be present before the Medical Board but he has not appeared before the Medical Board. There is no illegality or perversity in the order passed by the learned Additional Sessions Judge-II, Shimla dated 2.6.2015. 13. Accordingly, there is no merit in this petition and the same is dismissed.