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2022 DIGILAW 1349 (AP)

BADDILA REDDY SWAMI NAIDU v. B. NEELAVATHI

2022-11-22

RAVI CHEEMALAPATI

body2022
ORDER: This Criminal Revision Case is filed under Sections 397 and 401 of Criminal Procedure Code (‘Cr.P.C.’ in short), by the petitioner, who is the respondent in Criminal M.P.No.11 of 2017 in Criminal Revision Petition No.49 of 2016 on the file of the Court of the learned II Additional District & Sessions Judge, Madanapalle, feeling aggrieved by the orders dated 15.05.2017 passed therein referring the petitioner and the respondents 1 and 2 for scientific examination i.e. DNA test to find out paternity of the 2nd respondent. 2. The petitioner herein is the alleged husband of the 1st respondent and the father of the 2nd respondent. 3. The respondents 1 and 2 herein filed maintenance case vide M.C.No.33 of 2015 on the file of the Court of the learned Special Magistrate, Madanapalle against the petitioner herein claiming maintenance. According to the averments in the petition, the 1st respondent is the legally wedded wife of the petitioner and their marriage was performed on 23.10.2010 and out of the wedlock they were blessed with the 2nd respondent and thereafter, the petitioner and his family members ill treated her demanding additional dowry. The petitioner filed Ex.P1 delivery certificate, Ex.P2-agreement and Ex.X1-case sheet to substantiate her marriage with the petitioner and birth of the 2nd respondent out of lawful wedlock. The petitioner filed counter denying his marriage with the 1st respondent and paternity of the 2nd respondent. The learned Special Magistrate considering the material dismissed the petition holding that the 1st respondent failed to even prima facie prove that she is the legally wedded wife of the petitioner and there is no evidence to show that the 2nd respondent was born through the petitioner. Aggrieved thereby, the respondents 1 and 2 preferred Criminal Revision Petition No.49 of 2016 on the file of the Court of the learned II Additional District & Sessions Judge, Madanapalle. Pending disposal of the above Crl.R.P., the respondents 1 and 2 filed Criminal M.P.No.11 of 2017 under Section 391 CrPC to send the petitioner herein for DNA test for proving paternity of the 2nd respondent. The learned Sessions Judge allowed the petition on 15.05.2017 directing the petitioner to undergo DNA test along with the respondents 1 and 2. The said order is impugned in this Criminal Revision Case. 4. The learned Sessions Judge allowed the petition on 15.05.2017 directing the petitioner to undergo DNA test along with the respondents 1 and 2. The said order is impugned in this Criminal Revision Case. 4. The contentions raised by the petitioner in this Criminal Revision Case, in brief, are that the impugned order is bad, perverse and contrary to the settled principles of law and the same was passed in a routine manner even though there is no prima facie material showing existence of any relationship between the petitioner and the respondents 1 and 2 and that too when the marriage of the 1st respondent with another person was admitted and is subsisting. Hence, prayed to allow the Criminal Revision Case by setting aside the impugned order. 5. Heard Sri M.V. Subba Reddy, learned counsel for the Criminal Revision Petitioner, Sri V.Chandran, learned counsel for the respondents 1 and 2 and Sri Soora Venkata Sai Nath, learned Special Assistant Public Prosecutor for the 3rd respondent-State. 6. Sri M.V. Subba Reddy, learned counsel for revision petitioner, in elaboration, would submit that the 1st respondent has failed even to place prima facie material on record to substantiate her marriage with the petitioner and even without any prima facie material, the Court below erred in directing the petitioner to under DNA test ignoring the fundamental principle of law that DNA test is not to be directed as a matter of routine and that it adversely affects the privacy of an individual. It is further submitted that the admissions made by the 1st respondent in Ex.R1 copy of the complaint filed by her before the District Women and Child Welfare Authority, Chittoor (relevant portion is marked as Ex.R3) makes it clear that she married one Malreddygari Nagamuni Reddy, a native of Kadapa district, and their marriage still subsists, but the Court below in utter disregard to the same passed the impugned orders. It is further submitted that the Court below ignored the fundamental principle of law that a party to the proceeding cannot compel his opponent to adduce further evidence to support his case and when the petitioner is unwilling to subject himself to the DNA test, forcing him to undergo would affect his personal liberty and his right of privacy. Hence, prayed to allow the Criminal Revision Case by setting aside the impugned order. Hence, prayed to allow the Criminal Revision Case by setting aside the impugned order. In support of his contentions, the learned counsel for the petitioner has relied on Ashok Kumar vs. Raj Gupta and others, (2022) 1 Supreme Court Cases 20. 7. On the other hand, Sri V.Chandran, learned counsel for the respondent No.1, would submit that the petitioner (examined as R.W.1 in M.C. proceedings), having admitted in clear terms that he has no objection for DNA test, cannot now turn around and question the orders. It is further submitted that DNA test result is scientifically accurate and the same can be relied on to decide paternity under matrimonial laws. It is further submitted that Ex.P1, Ex.P2 and Ex.X1 relied on by the 1st respondent amply proves that the petitioner is her husband and the 2nd respondent was born to them out of lawful wedlock and to elucidate the truth of paternity of the 2nd respondent, there is eminent to subject the petitioner to DNA test to safeguard the interest of the 2nd respondent. It is further submitted that in case the petitioner refuses to submit himself to medical examination, an adverse inference has to be drawn. It is further submitted that since the 1st respondent has placed strong prima facie material before the Court with regard to paternity of the 2nd respondent, the Court below has rightly exercised its discretion judiciously and the same does not warrant any interference of this Court. Hence, prayed to dismiss the Criminal Revision Case. In support of his contentions, the learned counsel relied on Priyanka Janardhan Patil vs. Janardhan Raghunath Patil, 2022 SAR (Cil) 654, Madharapu Prashu Ram vs. Shaik Janibhee and others, 2012(3) ALT (Crl.) 227 (A.P.), Manjudari Neerada @ Radhi s. M.P.Narasimha Rao, 2015(4) ALT 157 , Buridi Vanajakshmi v. Buridi Venkata Satya Varaha Prasad Gangadhar Rao and another, 2010(4) ALT 441 , Kodi Satish Naidu v.State of A.P.rep.by Public Prosecutor and another, 2015(3) ALT (Crl.) 254 (A.P.), Rohit Shekhar vs. Narayan Dutt Tiwari and another, (2012) AIR (Delhi) 151. 8. The learned Special Assistant Public Prosecutor would submit that DNA test result can be relied on to decide paternity under matrimonial laws and the Court below having found the presence of strong prima facie case rightly ordered DNA test and the impugned order does not suffer any illegality and thus does not warrant interference of this Court. 9. 8. The learned Special Assistant Public Prosecutor would submit that DNA test result can be relied on to decide paternity under matrimonial laws and the Court below having found the presence of strong prima facie case rightly ordered DNA test and the impugned order does not suffer any illegality and thus does not warrant interference of this Court. 9. In Ashok Kumar v. Raj Gupta and others relied on by the learned counsel for the petitioners, the Hon’ble Apex Court held as thus: “11. In circumstances where other evidence is available to prove or dispute the relationship, the court should ordinarily refrain from ordering blood tests. This is because such tests impinge upon the right of privacy of an individual and could also have major societal repercussions. Indian law leans towards legitimacy and frowns upon bastardy. The presumption in law of legitimacy of a child cannot be lightly repelled. 14. It was also the view of the Court that the normal rule of evidence is that the burden is on the party that asserts the positive. But in instances where that is challenged, the burden is shifted to the party, that pleads the negative. Keeping in mind the issue of burden of proof, it would be safe to conclude that in a case like the present, the court's decision should be rendered only after balancing the interests of the parties i.e. the quest for truth, and the social and cultural implications involved therein. The possibility of stigmatising a person as a bastard, the ignominy that attaches to an adult who, in the mature years of his life is shown to be not the biological son of his parents may not only be a heavy cross to bear but would also intrude upon his right of privacy. *** 18. Having answered these questions, an additional issue to be resolved is whether refusal to undergo DNA testing amounts to “other evidence” or in other words, can an adverse inference be drawn in such situation. In Sharda v. Dharmpal, (2003) 4 SCC 493 a three-Judge Bench in the opinion written by S.B. Sinha, J. rightly observed in para 79 that “if despite an order passed by the court, a person refuses to submit himself to such medical examination, a strong case for drawing an adverse inference” can be made out against the person within the ambit of Section 114 of the Evidence Act. The plaintiff here has adduced his documentary evidence and is disinclined to produce further evidence. He is conscious of the adverse consequences of his refusal but is standing firm in refusing to undergo the DNA test. His suit eventually will be decided on the nature and quality of the evidence adduced. The issue of drawing adverse inference may also arise based on the refusal. The Court is to weigh both sides' evidence with all attendant circumstances and then reach a verdict in the suit and this is not the kind of case where a DNA test of the plaintiff is without exception. 19. The respondent cannot compel the plaintiff to adduce further evidence in support of the defendants' case. In any case, it is the burden on a litigating party to prove his case adducing evidence in support of his plea and the court should not compel the party to prove his case in the manner, suggested by the contesting party. 20. The appellant (plaintiff) as noted earlier, has brought on record the evidence in his support which in his assessment adequately establishes his case. His suit will succeed or fall with those evidence, subject of course to the evidence adduced by the other side. When the plaintiff is unwilling to subject himself to the DNA test, forcing him to undergo one would impinge on his personal liberty and his right to privacy. Seen from this perspective, the impugned judgment [Raj Gupta v. Ashok Kumar, 2019 SCC OnLine P&H 6032] merits interference and is set aside. In consequence thereof, the order passed by the learned trial court on 28-11-2017 is restored. The suit is ordered to proceed accordingly.” 10. In the above decision, a suit was filed for declaration claiming ownership over coparcenary property and while answering the question whether the plaintiff without subjecting himself to a DNA test, is entitled to establish his right over the property through other material evidence already adduced by him and whether in the absence of consent, a party can be forced to provide sample for a DNA test, the Hon’ble Supreme Court held that the suit filed by the plaintiff will succeed or fall with those evidence brought him on record when the plaintiff is unwilling, he cannot be forced to undergo DNA test and the defendants cannot compel the plaintiff to adduce further evidence in support of the defendants’ case. Thus, the fact and circumstances of the present case does not fit in to the facts of the decision relied on by the learned counsel for the petitioner and thus the observations so made by the Hon’ble Apex Court can not be made applicable to the facts of the present case. 11. In Priyanka Janardhan Patil vs. Janardhan Raghunath Patil, relied on by the learned counsel for the 1st respondent, their Lordships of Hon’ble Apex Court held that the opinion that the result of a genuine DNA test is said to be scientifically accurate. 12. In Kadhavarapu Prashu Ram v. Shaik Janibhee and others, relied on by the learned counsel for the 1st respondent, the High Court of composite State of Andhra Pradesh, while referring to various pronouncements of Hon’ble Supreme Court held that a matrimonial Court has power to order a person to undergo medical test and passing of such an order would not be in violation of the right of personal liberty under Article 21 of the Indian Constitution. However, the Court should exercise such a power if the applicant has a strong prima facie case and there is sufficient material before the Court. It is further held that when there is a total denial of relationship by the party in matrimonial matters, the only alternative is to prove the said relationship through scientific examination. 13. In Shardav v. Dharmpal, 2003(3) ALT 41 (SC) relied on by the learned counsel for the 1st respondent, the Hon’ble Supreme Court held that a matrimonial Court has the power to order a person to undergo medical test, passing of such an order by the Court would not be in violation of the right of personal liberty under Article 21 of the Indian Constitution and the Court should exercise such a power if the applicant has a strong prima facie case and there is sufficient material before the Court. If despite the order of the Court, the respondent refuses to submit himself to medical examination, the Court will be entitled to draw an adverse inference against him. 14. The observations made in the above referred decisions make it amply clear that a matrimonial Court has the power to order a person to undergo medical test and the Court should exercise such a power if the applicant has a strong prima facie case and there is sufficient material before the Court. 15. 14. The observations made in the above referred decisions make it amply clear that a matrimonial Court has the power to order a person to undergo medical test and the Court should exercise such a power if the applicant has a strong prima facie case and there is sufficient material before the Court. 15. The respondent No.1 to substantiate her contention that she is the legally wedded wife of the petitioner and that the 2nd respondent was born out of their lawful wedlock, placed reliance on Ex.P1, Ex.P2 and Ex.X1. Ex.P1 is the Delivery certificate of the 1st respondent, Ex.P2 is the unregistered agreement executed between the petitioner and the 1 st respondent and Ex.X1 is the case sheet. In Ex.P1 the petitioner is described as the husband of the 1st respondent. Ex.P2 is the agreement said to have been executed by the petitioner and the 1st respondent. The petitioner admitted his signature contained on Ex.P2, however stated that his signature was obtained by force in the police station. In Ex.X1 case sheet the petitioner is described as husband of the 1st respondent. Thus, the 1st respondent by placing the above documents could raise a strong prima facie case in support of her contention. 16. The material placed on record would go to show that the defence of the petitioner in M.C. proceedings is one of total denial of his marriage with the 1st respondent and parental relationship with the 2nd respondent. Thus, there is total denial of relationship by the petitioner. 17. Since the petitioner has denied his relationship with the respondents, the only alternative available to them is to prove the said relationship is through scientific examination as held in Kadhavarapu Prashu Ram v. Shaik Janibhee and others. Thus, in order to arrive at justice decision and to safeguard the interest of the 2nd respondent and to protect him from adverse consequences, there is eminent need to refer the petitioner and the 2nd respondent to scientific examination. It is also pertinent here to note that the petitioner in his cross examination expressed no objection for subjecting himself to the DNA test, which is extracted, for brevity. “I have no objection for DNA test.” Hence, he cannot now wriggle out of his solemn undertaking. It is also pertinent here to note that the petitioner in his cross examination expressed no objection for subjecting himself to the DNA test, which is extracted, for brevity. “I have no objection for DNA test.” Hence, he cannot now wriggle out of his solemn undertaking. Further the presumption under Section 112 of the Evidence Act and also proof of non access are not applicable to the facts of the case, since the marriage itself was denied. The observations in the decision relied on by the learned counsel for the petitioner makes it clear that if a party does not appear for DNA test, adverse inference has to be drawn. 18. Thus, the Court below has considered the material on record and also the contentions advanced on behalf of the respective parties in right perspective and came to the right conclusion in allowing the petition directing the petitioner to undergo DNA test. In these Circumstances, this Court does not find any illegality or irregularity in the impugned orders passed by the Court below allowing the application of the respondents 2 and 3. The Criminal Revision Case is, therefore, deserves dismissal. 19. In view of the above, the Criminal Revision Case is dismissed. The Court below shall fix a date and intimate the same to the parties to enable them to appear before the concerned medical officer to undergo DNA test. It is needless to observe further that in case the petitioner refuses to submit himself to medical examination, the Court below can draw an adverse inference. Since the Maintenance Case pertains to the year 2015, the Court below is directed to dispose of the matter as expeditiously as possible. There shall be no order as to costs. As a sequel, pending miscellaneous applications, shall stand closed. Interim Orders, if any, shall stand vacated.