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2016 DIGILAW 1726 (HP)

Sharda v. Surat Singh

2016-08-20

TARLOK SINGH CHAUHAN

body2016
JUDGMENT : Tarlok Singh Chauhan, J. This petition under Section 482 Cr.P.C., is directed against the order dated 23.5.2016 passed by learned Judicial Magistrate 1st Class, Solan, District Solan, H.P. whereby the application filed by the petitioner seeking direction to the respondent to undergo DNA profiling test alongwith his children and to obtain expert opinion in this regard, came to be dismissed. 2. The application filed by the petitioner under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (for short ‘Act’) is pending adjudication before the learned trial Magistrate. In the application, the petitioner had averred that she had been living for the last more than 40 years with the respondent, who had kept her as a wife and out of the said relationship, two children Surinder Parkash and one Sushma were born and now the respondent had stopped maintaining the petitioner and prayed that pending disposal of the application the residence order (fourth storey - first floor known as Surat Bhawan), as required under Section 19 of the Act be passed. 3. In reply to the application, the respondent denied having had any relationship with the petitioner and further denied the children mentioned above are not his. 4. In order to prove her relationship with the respondent, the petitioner filed an application under Section 45 read with Section 113 of the Indian Evidence Act, for directing the respondent to undergo DNA profiling test with the aforesaid children, which was opposed by the respondent. 5. The learned trial Court dismissed the application by initially according the following reasons: “The present petition is petition under Section 12 of protection of women from Domestic Violence Act and the children are not party to the present petition but applicant has averred that he had denied even paternity of children and therefore, DNA test is required to be conducted. However, the paternity of the children is not in question in the present case. Moreover, it is an accepted fact that maintenance has been provided to the children under Section 125 Cr.P.C. and under Section 125 Cr.P.C. even illegitimate child is also covered. Copy of order dated 29.7.86 Ext. DX1 has been placed on record wherein they were stated to be his illegitimate children of respondent which order is not as such challenged by the respondent in any court of law. Copy of order dated 29.7.86 Ext. DX1 has been placed on record wherein they were stated to be his illegitimate children of respondent which order is not as such challenged by the respondent in any court of law. The evidence has also come to the effect that respondent was also married and had children from his wife namely Durgi Devi and it has also been stated by her in the court that children of Sharda were also born in her presence and she was married to Basti Ram.” : Thereafter, by placing reliance upon the judgment of the Hon’ble Supreme Court in D.Velusamy vs. D. Patchaiammal, 2010 (10) SCC 469 , it was further observed as under: “In view of authority cited supra it can be safely stated that for the purpose of relief under domestic violence Act, the relationship should be akin to marriage and detail with regard to the relationship which can be stated to be akin to marriage has been provided and so the points as stated above by Hon’ble Supreme Court of India is required to be proved and therefore, paternity of children is not going to prove same. Hence, in view of discussion made above present application is not maintainable and is dismissed accordingly. Application stands disposed of accordingly. It be registered and papers after due completion be tagged with main case file for record. Be listed for arguments for 17.6.2016.” I have heard learned counsel for the parties and also gone through the records of the case carefully. 6. The learned Magistrate appears to have gone astray by not taking into consideration the fact that though the legitimacy of the children as observed by it was not in issue, but then this would be one of the main determinative factor, which would go to a long way to establish the relationship between the parties. 7. I am conscious of the fact that use of DNA test is an extremely delicate and sensitive aspect when it gets down to human relationship. 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. 7. I am conscious of the fact that use of DNA test is an extremely delicate and sensitive aspect when it gets down to human relationship. 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. However, there is other view 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 be prejudicial to the rights of the parties and at the same time may have devastating effect on the child. Sometimes, the result of such a scientific test may bastardize an innocent child even though his mother and her spouse were living together during the time of conception. Any order for DNA test can be given by the Court only if a strong prima facie case is made out for such a course. 8. In Bhabani Prasad Jena versus Convenor Secretary, Orissa State Commission for Women and another (2010) 8 SCC 633 , the Hon’ble Supreme Court has held that whenever there is a conflict between the right of privacy of a person not to submit himself to medical examination and duty of the Court to reach the truth, the Court must exercise its discretion only after balancing the interest of the parties and on due consideration whether for a just decision in the matter, DNA test is eminently needed. 9. In Dipanwita Roy versus Ronobroto Roy (2015) 1 SCC 365 , the Hon’ble Supreme Court was dealing with a case pertaining to the alleged infidelity of the appellant therein and the husband wanted to prove and establish the ingredients of Section 13(1)(i) of the Hindu Marriage Act, 1955, namely, that after the solemnization of the marriage of the appellant with the respondent, the appellant therein had voluntarily engaged in sexual intercourse with a person other than the respondent. The Hon’ble Supreme Court held that the prayer made by the respondent for conducting DNA test of the appellant’s son was aimed at the alleged adulterous behaviour of the appellant and, therefore, the issue of legitimacy was also incidentally involved. The Hon’ble Supreme Court held that the prayer made by the respondent for conducting DNA test of the appellant’s son was aimed at the alleged adulterous behaviour of the appellant and, therefore, the issue of legitimacy was also incidentally involved. It was further held that depending on the facts and circumstances of each case, it will direct the holding of a DNA examination, but then it was specifically held that if the directions to hold such test can be avoided, it should be so avoided for the reasons that the legitimacy of a child should not be put to peril. It is apt to reproduce para-16 of the judgment which reads thus:- “16. It is borne from the decisions rendered by this Court in Bhabani Prasad Jena v. Orissa State Commission for Women (2010) 8 SCC 633 and Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik (2014) 2 SCC 576 that depending on the facts and circumstances of the case, it would be permissible for a court to direct the holding of a DNA examination to determine the veracity of the allegations which constitute one of the grounds, on which the party concerned would either succeed or lose. There can be no dispute, that if the direction to hold such a test can be avoided, it should be so avoided. The reason, as already recorded in various judgments by this Court, is that the legitimacy of a child should not be put to peril.” 10. The Court here is dealing with a case where a woman (petitioner) himself admits that she has never married to the man (i.e. the respondent), but would claim that respondent was having access to her and out of this relationship, two children were born, whereas the case of the respondent is that of total denial of not only the relationship, but also he has not owned the children. 11. Indubitably in proceedings under Section 125 Cr.P.C. the children were held to be illegitimate children of the respondent but that is on the basis of the evidence led in that case. Therefore, it is prima-facie established that the parties are not total strangers and even otherwise I am of the firm view that no prejudice otherwise would be caused either to the respondent or the two children if they undergo the DNA test. Therefore, it is prima-facie established that the parties are not total strangers and even otherwise I am of the firm view that no prejudice otherwise would be caused either to the respondent or the two children if they undergo the DNA test. After all, only the truth will come out from such test and it has to be remembered that every trial is a voyage of discovery in which the truth is the quest. It is, therefore, the duty of the Court to ensure that the truth in a case comes out. The truth is the basis of justice delivery system and therefore, should be the guiding star in the entire judicial process. The Court’s serious endeavour has to be to find out where in fact the truth lies. Judges at all levels have to seriously engage themselves in the journey of discovering the truth. That is their mandate, obligation and bounden duty. Justice system will acquire credibility only when people will be convinced that justice is based on the foundation of the truth. 12. Having said so, I find merit in this petition and the same is accordingly allowed. The order passed by the learned Judicial Magistrate 1st Class, Solan, on 23.5.2016 is ordered to be set-aside and the petition is allowed as prayed for. Interim order granted on 30.6.2016 is vacated. 13. Petition is disposed of in the aforesaid terms, so also the pending applications, leaving the parties to bear their own costs.