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2018 DIGILAW 1736 (HP)

Sunita Devi v. Makhan Lal

2018-09-27

AJAY MOHAN GOEL

body2018
JUDGMENT : AJAY MOHAN GOEL, J. 1. By way of this petition filed under Section 482 of the Code of Criminal Procedure, petitioners have prayed for quashing of order dated 4th October, 2017, passed by the Court of learned Chief Judicial Magistrate, Kinnaur at Rckong Peo, on an application filed under Section 45 of the Indian Evidence Act by the present respondent allowing his request for directing the parties to give their blood samples for DNA test to ascertain the factum of the paternity of petitioner No.2 (Master Arvind). 2. Brief facts necessary for adjudication of the present petition are as under. In proceedings filed by the petitioners against respondent under Section 125 of the Cr.P.C. seeking grant of maintenance, an application was filed under Section 45 of the Indian Evidence Act by the present respondent for ordering the DNA test of the parties for fortifying the parentage of petitioner No.2 (Master Arvind). As per averments made in the application, the applicant therein denied any access to petitioner No.1 after the year 2010 and on these basis his contention was that petitioner No.2, who was born during the pendency of the petition filed under Section 125 of the Cr.P.C. was not his son. It was further mentioned in the application that in the course of recording of evidence in proceedings under Section 125 of Cr.P.C. it came in knowledge that petitioner No.1 was having physical relationship with one Shri Dharam Singh and that petitioner No.2 was in fact son of Dharam Singh. It was thus prayed in the application that the said fact as to whether petitioner No.2 was the son of the applicant-respondent or not could only be determined by conducting a DNA test of the parties to the lis. 3. This application was contested by present petitioners on the ground that false and bald allegations stood leveled against petitioner No.1 about her allegedly having relations with one Shri Dharam Singh, whose identity even was not disclosed in the application. Averments made in the application were denied in totality in the reply. 4. Vide order dated 4.10.2017 which stands impugned before this Court, the application has been allowed by the Court of learned Chief Judicial Magistrate, Kinnaur at Reckong Peo. Averments made in the application were denied in totality in the reply. 4. Vide order dated 4.10.2017 which stands impugned before this Court, the application has been allowed by the Court of learned Chief Judicial Magistrate, Kinnaur at Reckong Peo. While allowing the application, it has been held by learned court below that it has been the case of the applicant therein that he was not having any access to petitioner No.1 since the year 2010 and during the course of cross examination of petitioner No.1, a specific question was put to her qua her relationship with Shri Dharam Singh, who hailed from her village. Learned court below further held that as the matter in hand only pertained to claim of maintenance, therefore, there was no necessity of impleading Shri Dharam Singh as party. It further held that paternity of petitioner No.2 could only be ascertained if DNA test was ordered and thereafter relying upon the judgment of Hon’ble Supreme Court of India in Dipanwita Roy Vs. Ronobroto Roy, AIR 2015 SC 418 , learned court below allowed the application. 5. Learned Senior Counsel appearing for the petitioners has argued that the order impugned was a perverse order, as learned court below has erred in not appreciating that no Court would force a minor to give his blood sample for the purpose of DNA test. He has further argued that the filing of the application was a tactic deployed by the present respondent to avoid payment of maintenance and this very important aspect of the matter was ignored by the learned court below. 6. On the other hand learned Senior Counsel appearing for the respondent had argued that there was no illegality or perversity with the order impugned because there was no bar in law that a Court could not order the DNA test of a minor. Learned Senior Counsel has further argued that the very fact that petitioner No.1 was vehemently opposing DNA test itself was suggestive of the fact that petitioner No.2 was not the son of the respondent. As per learned Senior Counsel the technical pleas raised on behalf of the petitioners were just to ensure that truth did not come out. On these bases, he prayed that as there was no merit in the petition, the same be dismissed. 7. As per learned Senior Counsel the technical pleas raised on behalf of the petitioners were just to ensure that truth did not come out. On these bases, he prayed that as there was no merit in the petition, the same be dismissed. 7. I have heard learned Senior Counsel for the petitioners as well as learned Senior Counsel for the respondent and have also gone through the records of the case. 8. According to the respondent, as petitioner No.2 is not his son, therefore, he is not liable to pay maintenance. It is further his case that petitioner No.2 is the child of petitioner No.1 and one Shri Dharam Singh, with whom petitioner No.1 allegedly has physical relations. According to him, he has had no access to petitioner No.1 since the year 2010. It is not in dispute that the date of birth of petitioner No.2 is 21.11.2013. This is evident from the averments made in the present petition itself. 9. Hon’ble Supreme Court of India in Bhabani Prasad Jena Vs. Convenor Secretary, Orissa State Commission for Women and another, (2010) 8 SCC 633 has held that in a matter where paternity of a child is in issue before the Court, the use of DNA test is an extremely delicate and sensitive aspect. It further held that when there is apparent conflict between the right to privacy of a person not to force himself to medical examination and duty of the Court to reach the truth, the Court must exercise its discretion only after balancing the interests of the parties and on due consideration whether for a just decision in the matter, DNA test is eminently needed. Hon’ble Supreme Court has further held that DNA test in a matter relating to paternity of a child should not be directed by the Court as a matter of course or in a routine manner, and the Court has to consider diverse aspects including presumption under Section 112 of the Indian Evidence Act, as also the pros and cons of such order and the test of “eminent need”, whether it is not possible for the Court to reach the truth without use of such test. 10. In Dipanwita Roy Vs. Ronobroto Roy, AIR 2015 SC 418 , Hon’ble Supreme Court has held as under:- “9. 10. In Dipanwita Roy Vs. Ronobroto Roy, AIR 2015 SC 418 , Hon’ble Supreme Court has held as under:- “9. All the judgments relied upon by the learned counsel for the appellant were on the pointed subject of the legitimacy of the child born during the subsistence of a valid marriage. The question that arises for consideration in the present appeal, pertains to the alleged infidelity of the appellant-wife. It is not the husband's desire to prove the legitimacy or illegitimacy of the child born to the appellant. The purpose of the respondent is, to establish the ingredients of Section 13(1)(ii) of the Hindu Marriage Act, 1955, namely, that after the solemnisation of the marriage of the appellant with the respondent, the appellant had voluntarily engaged in sexual intercourse, with a person other than the respondent. There can be no doubt, that the prayer made by the respondent for conducting a DNA test of the appellant's son as also of himself, was aimed at the alleged adulterous behaviour of the appellant. In the determination of the issue in hand, undoubtedly, the issue of legitimacy will also be incidentally involved. Therefore, insofar as the present controversy is concerned, Section 112 of the Indian Evidence Act would not strictly come into play. x x x x x x x x x x x x x x 10. It is borne from the decisions rendered by this Court in Bhabani Prasad Jena (supra), and Nandlal Wasudeo Badwaik (supra), 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 allegation(s), which constitute one of the grounds, on which the concerned party 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. 11. The question that has to be answered in this case, is in respect of the alleged infidelity of the appellant-wife. The respondent-husband has made clear and categorical assertions in the petition filed by him under Section 13 of the Hindu Marriage Act, alleging infidelity. 11. The question that has to be answered in this case, is in respect of the alleged infidelity of the appellant-wife. The respondent-husband has made clear and categorical assertions in the petition filed by him under Section 13 of the Hindu Marriage Act, alleging infidelity. He has gone to the extent of naming the person, who was the father of the male child born to the appellant-wife. It is in the process of substantiating his allegation of infidelity, that the respondent-husband had made an application before the Family Court for conducting a DNA test, which would establish whether or not, he had fathered the male child born to the appellant-wife. The respondent feels that it is only possible for him to substantiate the allegations levelled by him (of the appellant-wife's infidelity) through a DNA test. We agree with him. In our view, but for the DNA test, it would be impossible for the respondent-husband to establish and confirm the assertions made in the pleadings. We are therefore satisfied, that the direction issued by the High Court, as has been extracted hereinabove, was fully justified. DNA testing is the most legitimate and scientifically perfect means, which the husband could use, to establish his assertion of infidelity. This should simultaneously be taken as the most authentic, rightful and correct means also with the wife, for her to rebut the assertions made by the respondent-husband, and to establish that she had not been unfaithful, adulterous or disloyal. If the appellant-wife is right, she shall be proved to be so. 12. We would, however, while upholding the order passed by the High Court, consider it just and appropriate to record a caveat, giving the appellant-wife liberty to comply with or disregard the order passed by the High Court, requiring the holding of the DNA test. In case, she accepts the direction issued by the High Court, the DNA test will determine conclusively the veracity of accusation levelled by the respondent-husband, against her. In case, she declines to comply with the direction issued by the High Court, the allegation would be determined by the concerned Court, by drawing a presumption of the nature contemplated in Section 114 of the Indian Evidence Act, especially, in terms of illustration (h) thereof. Section 114 as also illustration (h), referred to above, are being extracted hereunder: “114. In case, she declines to comply with the direction issued by the High Court, the allegation would be determined by the concerned Court, by drawing a presumption of the nature contemplated in Section 114 of the Indian Evidence Act, especially, in terms of illustration (h) thereof. Section 114 as also illustration (h), referred to above, are being extracted hereunder: “114. Court may presume existence of certain facts – The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustration (h) - That if a man refuses to answer a question which he is not compelled to answer by law, the answer, if given, would be unfavourable to him.” This course has been adopted to preserve the right of individual privacy to the extent possible. Of course, without sacrificing the cause of justice. By adopting the above course, the issue of infidelity alone would be determined, without expressly disturbing the presumption contemplated under Section 112 of the Indian Evidence Act. Even though, as already stated above, undoubtedly the issue of legitimacy would also be incidentally involved.” 11. Coming to the facts of this case, herein also, by way of averments made in the application filed by respondent under Section 45 of the Indian Evidence Act, the intent of the applicant is not to establish the illegitimacy of the child i.e., petitioner No.2, but endeavour is to demonstrate the infidelity of petitioner No.1. In my considered view, the prayer made in the application for conducting DNA test of the parties was aimed at the alleged adulterous behaviour of petitioner No.1, though in the determination of the said fact, undoubtedly the factum of legitimacy of petitioner No.2 will also be incidentally involved as has been held by Hon’ble Apex Court. 12. Accordingly, in these circumstances, without interfering with the order impugned, this petition is disposed of with the direction that petitioner No.1 shall be at liberty to comply with or disregard the order passed by the learned court below requiring the holding of DNA test both qua her and petitioner No.2. 12. Accordingly, in these circumstances, without interfering with the order impugned, this petition is disposed of with the direction that petitioner No.1 shall be at liberty to comply with or disregard the order passed by the learned court below requiring the holding of DNA test both qua her and petitioner No.2. It is further made clear that in case she complies with the direction passed by the learned court below, the DNA test will determine the veracity of the accusation leveled against her by the present respondent and if she declines to comply with the directions, then obviously the allegations would be determined by the Court by drawing a presumption of the nature contemplated in Section 114 of the Indian Evidence Act in terms of the law declared by the Hon’ble Supreme Court in Dipanwita Roy’s case, Supra. Petition stands disposed of in the above terms. No order as to costs.