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2015 DIGILAW 2238 (MAD)

Senthil Andavar v. Muthumari

2015-06-17

S.NAGAMUTHU

body2015
Judgment :- 1. The first respondent claims to be the wife of the petitioner. According to her, the respondents 2 and 3 were born to her through the petitioner. On the allegation that the petitioner has neglected them and to maintain them, the respondents filed M.C.No.40 of 2013 before the learned Judicial Magistrate, Sivakasi, under Section 125 Cr.P.C. claiming a sum of Rs.3,500/- each towards maintenance of the respondents 2 and 3 alone. 2. According to the admitted case of the parties, the first respondent was already married to one Mr.Pandian. But, later on, they got separated. Thereafter, according to the first respondent, the petitioner married her. It is the further case of the first respondent that out of the said wedlock, the respondents 2 and 3 were born. But, the case of the petitioner is otherwise. According to him, he was already married to one Chandra and the said marriage is still subsisting. He has further admitted that he had illicit intimacy with the first respondent for some time, out of which, the 2nd respondent was born. But after the birth of the second respondent, there was no love-lost between them and as a result, the petitioner had no access to the first respondent. However, according to him, the third respondent was born to the first respondent, for which, he is not responsible. In other words, he is not the biological father of the third respondent and therefore, he is not liable to pay any amount as maintenance to the third respondent. In order to prove that the third respondent was not born to him, the petitioner filed Cr.M.P.No.12729 of 2014 before the learned Judicial Magistrate, seeking a direction for DNA Test to be conducted by expert to ascertain the paternity of the third respondent. The learned Judicial Magistrate dismissed the said petition by order, dated 06.02.2015 mainly on the ground that such a petition is not maintainable in a proceeding under Section 125 Cr.P.C. Challenging the said order, the petitioner is before this Court with this petition. 3. Today, before this Court, the petitioner and the respondents are present. They are also represented by the respective counsels. 4. 3. Today, before this Court, the petitioner and the respondents are present. They are also represented by the respective counsels. 4. The learned counsel for the petitioner would submit that the only ground, upon which, the trial Court dismissed the request of the petitioner is not sustainable, in view of the judgment of the Hon'ble Supreme Court in Nandlal Wasudeo Badwaik vs . Lata Nandlal Badwait & Anr. reported in (2014) 5 CTC 680. 5. The learned counsel would submit that in the instant case, in order to prove the non access and consequently to prove that the petitioner is not the biological father of the third respondent, it is absolutely necessary that the DNA Test is to be conducted. In the judgment of the Hon'ble Supreme Court in paragraph Nos.15 to 18, it has been held as follows: “15. From a plain reading of the aforesaid, it is evident that a child born during the continuance of a valid marriage shall be a conclusive proof that the child is a legitimate child of the man to whom the lady giving birth is married. The provision makes the legitimacy of the child to be a conclusive proof, if the conditions aforesaid are satisfied. It can be denied only if it is shown that the parties to the marriage have no access to each other any any time when the child could have been begotten. Here, in the present case, the wife had pleaded that the husband had access to her and, in fact, the child was born in the said wedlock, but the husband had specifically pleaded that after his wife left the matrimonial home, she did not return and thereafter, he had no access to her. The wife has admitted that she had left the matrimonial home but again joined her husband. Unfortunately, none of the Courts below have given any finding with regard to this plea of the husband that he had or had not any access to his wife at the time when the child could have been begotten. 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. 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. 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. 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.” 6. But the learned counsel for the respondents would submit that the question of paternity cannot be conclusively arrived at by the Magistrate under Section 125 of Cr.P.C. According to him, the said question is purely civil in nature, which is to be decided only by the competent civil Court. Being a summary procedure, according to the learned counsel, allowing the parties to question the paternity leading to any conclusion by the Magistrate on this question will only unnecessarily drag on the proceeding, which in turn, would defeat the very object of Section 125 Cr.P.C. Therefore, according to the learned counsel, this revision petition deserves to be dismissed. 7. I have considered the above submissions. 8. It is true that a proceeding under Section 125 of Cr.P.C., being a summary procedure, has been introduced with the object of extending helping hand to the destitute women and children to rescue them from starvation and penury. It has been re-emphasized by the Hon'ble Supreme Court as well as this Court on several occasions that the delaying tactics in proceeding under Section 125 Cr.P.C. by unscrupulous parties cannot be encouraged and the Court should take every endeavour to ensure that such proceeding comes to an end within a least possible time. In this case, though it is stated that the present revision is an attempt to drag on the proceedings, I do not think so for the following reasons: (i) In this case, admittedly, there was no valid marriage between the petitioner and the first respondent. As I have already pointed out, it is the admitted case that the marriage between the petitioner and Mrs.Chandra is still subsisting. Similarly, though it is alleged that the marriage between the first respondent and one Pandian has been dissolved as per the custom, as of now, there is no proof for the same. As I have already pointed out, it is the admitted case that the marriage between the petitioner and Mrs.Chandra is still subsisting. Similarly, though it is alleged that the marriage between the first respondent and one Pandian has been dissolved as per the custom, as of now, there is no proof for the same. Assuming that the marriage between Mr.Pandian and the first respondent has been dissolved validly, even then, the so called marriage as claimed by the first respondent with the petitioner is void under Section 5 of the Hindu Marriage Act, since the marriage between the petitioner and Mrs.Chandra is still subsisting. (ii) Section 112 of the Evidence Act, speaks of presumption of legitimacy of the child born during the subsistence of a marriage so long as the marital relationship continues. But in the instant case, such presumption under Section 112 cannot be raised, because there is no valid marriage between the first respondent and the petitioner. Though the said marriage is not valid, in the event, if the petitioner happens to be the biological father of the third respondent, still, he is liable to pay maintenance, because as per Section 125 of Cr.P.C., the illegitimate child is also entitled for maintenance. Therefore, the fundamental question is whether the petitioner is the biological father of the third respondent or not. Though the procedure to be followed under Section 125 of Cr.P.C., is summary in nature and though the decision on the question of paternity arrived at by the Magistrate is not conclusive, such a question is to be conclusively decided only by the competent civil Court, as held by the Hon'ble Supreme Court in Nandlal Wasudeo's case, even for the purpose of ordering for payment of maintenance, the paternity is to be proved. When there is denial, as held by the Hon'ble Supreme Court, the child may be subjected to DNA Test. In Nandlal Wasudeo's case, admittedly, there was a valid marriage and consequentially there was conclusive proof of legitimacy of proof for birth during the continuance of a valid marriage. But in the Nandlal Wasudeo' s case, the Hon'ble Supreme Court held that in order to prove the non access, the child can be sent for DNA examination. In Nandlal Wasudeo's case, admittedly, there was a valid marriage and consequentially there was conclusive proof of legitimacy of proof for birth during the continuance of a valid marriage. But in the Nandlal Wasudeo' s case, the Hon'ble Supreme Court held that in order to prove the non access, the child can be sent for DNA examination. In the given case, since there is no marriage and since there is no presumption of conclusive proof of paternity of the child, it is absolutely necessary to send the child, namely, the 3rd respondent for DNA examination. (iii) At the same time, it cannot be forgotten that the first respondent, who is living in starvation, cannot afford to spend money for her travel to the hospital and to the expert, if need be taking the child. Therefore, the entire cost for the first respondent to take the child to undergo the DNA Test is to be borne out only by the petitioner. When this Court pointed out the same that the petitioner should deposit a sum of Rs. 15,000/- (Rupees fifteen thousand only), the learned counsel for the petitioner as well as the petitioner, who is present before this Court, submitted that Rs.15,000/- will be deposited within a period of fifteen days from today before the lower Court. That statement is recorded. (iv) Before concluding, I wish to clarify that any conclusion to be arrived at by the Magistrate on the basis of the DNA report shall not be construed as conclusive as such question could be resolved only by a competent civil Court at a later point of time, if need be. 9. In the result, the Criminal Revision Petition is allowed in the following terms: (i) The impugned order of the learned Judicial Magistrate in Cr.M.P.No.12729 of 2014 is set aside and the said Miscellaneous Petition is allowed directing the Magistrate to forward the petitioner, the first respondent and the third respondent to the Government Head Quarters Hospital, Virudhunagar for taking blood samples and the said hospital authorities shall thereafter forward the blood samples to the Forensic Lab (DNA Division), Government of Tamil Nadu, Chennai for conducting DNA Test and to forward their opinion in respect of the paternity of the third respondent, namely, the baby – Maris. (ii) The petitioner shall deposit a sum of Rs.15,000/- (Rupees fifteen thousand only) to the credit of the lower Court within a period of fifteen days from today and if such deposit is made, the lower Court shall pay Rs.10,000/- (Rupees ten thousand only) to the first respondent and keep the balance of Rs.5,000/- (Rupees five thousand only) in the criminal Court deposits, until the disposal of the case. (iii) At the conclusion of the trial of the Maintenance Case in M.C.No.40 of 2013, the trial Court will be at liberty to dispose of the said amount, according to the final decision. (iv) It is further directed that if the amount of Rs.15,000/- is not deposited within 15 days from today, this order shall stand vacated and thereafter, the trial Court shall not forward the parties for DNA Test and instead, the trial Court shall proceed to dispose of the M.C.No.40 of 2013, expeditiously. (v) After the above said amount of Rs.15,000/- is deposited, the trial Court shall forward the petitioner, the first respondent and the third respondent to the Government Head Quarters Hospital, at Virudhunagar, within a period of two weeks and the said hospital authorities shall forward the blood samples to the Forensic Lab, Chennai, within a further period of one week. (vi) On receipt of the blood samples, the Forensic Lab, DNA Division, Chennai, shall conduct DNA Test and forward opinion regarding the paternity of the third respondent to the learned Judicial Magistrate, Sivakasi, within a period of one month. (vii) After the receipt of the report from the Forensic Lab, the trial Court shall dispose of the maintenance case in M.C.No.40 of 2013 within a further period of three months, after affording sufficient opportunities to both parties. Consequently connected Miscellaneous Petition is closed.