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2017 DIGILAW 151 (UTT)

Ramesh Bishnoi v. Maya Devi

2017-03-06

RAJIV SHARMA

body2017
JUDGMENT : Rajiv Sharma, J. This petition is directed against the order dated 14.12.2016 rendered by learned Principal Judge, Family Court, Dehradun in Criminal Case No.269 of 2016. 2. “Key facts”, necessary for the adjudication of this petition, are that respondent filed an application under Section 125 of Cr.P.C. against the petitioner seeking maintenance. 3. According to the averments made in this petition, the marriage between the parties was solemnized 33 years ago. Learned Principal Judge, Family Court, Dehradun passed the ex parte order against the petitioner on 03.02.2016 with a direction to the petitioner to pay Rs.10,000/-per month to the respondent. The petitioner came to know about the order when he received the recovery warrant. 4. Thereafter, the petitioner moved an application under Section 126 of Cr.P.C. to recall the ex parte order dated 03.02.2016. According to the averments made in the application, he was never married with respondent. The respondent also filed objections to the recall application. In the meantime, respondent has also filed an application seeking DNA test of the petitioner. 5. The matter came up before the learned Trial Court on 14.12.2016. The application for DNA test was allowed by the learned Trial Court and the petitioner and his son Jagdish @ Tinku were ordered to be present on 24.01.2017 for collection of blood sample. 6. The petitioner filed another application on 24.01.2017 stating therein that since no order has been passed in the recall application, thus, no order could be passed in the application for DNA test. The petitioner has relied upon the ration card. The said application of the petitioner was rejected by learned Trial Court on 24.01.2017. Hence, the present petition. 7. I have heard learned counsel for the petitioner and gone through the impugned orders carefully. 8. The petitioner has been ordered to pay a sum of Rs.10,000/- per month to the respondent under Section 125 of Cr.P.C. The petitioner has not chosen to appear before the Trial Court despite due service. He has submitted the application to recall the order dated 03.02.2016 only when recovery warrant was issued against him. Since, the petitioner has denied the paternity of his children, learned Trial Court was constrained to order the petitioner to be present on 24.01.2017 for collection of blood sample to prove the paternity. 9. Learned Trial Court has correctly asked the petitioner to give his blood sample to prove the paternity. Since, the petitioner has denied the paternity of his children, learned Trial Court was constrained to order the petitioner to be present on 24.01.2017 for collection of blood sample to prove the paternity. 9. Learned Trial Court has correctly asked the petitioner to give his blood sample to prove the paternity. No ground has been made out to recall the order passed by learned Trial Court, thus, the order dated 14.12.2016 is in accordance with law. 10. The husband has not said specifically that he had no access to his wife at the time when the child could have been begotten. Their Lordships of Hon’ble Supreme Court in 2014(2) SCC 576 , in the case of “Nandlal Wasudeo Badwaik vs. Lata Nandlal Badwaik & another”, have held that Section 112 of the Evidence Act does not create a legal fiction but provides for presumption of fact. However, a presumption of the fact depends on satisfaction of certain circumstances. Their Lordships of Hon’ble Supreme Court have held as under:- “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 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. Section 112 of the Evidence Act does not create a legal fiction but provides for presumption. 19. The husband's plea that he had no access to the wife when the child was begotten stands proved by the DNA test report and in the face of it, we cannot compel the Appellant to bear the fatherhood of a child, when the scientific reports prove to the contrary. We are conscious that an innocent child may not be bastardized as the marriage between her mother and father was subsisting at the time of her birth, but in view of the DNA test reports and what we have observed above, we cannot forestall the consequence. It is denying the truth. "Truth must triumph" is the hallmark of justice.” 11. This judgment has been further relied by their Lordships of Hon’ble Supreme Court in 2015(1) SCC 365 , in the case of “Dipanwita Roy vs. Ronobroto Roy”. 12. The petitioner has also not made any ground for recall of the order, whereby the wife was ordered to be paid maintenance @ Rs.10,000/-per month. 13. This judgment has been further relied by their Lordships of Hon’ble Supreme Court in 2015(1) SCC 365 , in the case of “Dipanwita Roy vs. Ronobroto Roy”. 12. The petitioner has also not made any ground for recall of the order, whereby the wife was ordered to be paid maintenance @ Rs.10,000/-per month. 13. Accordingly, there is no merit in this petition and the same is hereby dismissed.