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2022 DIGILAW 368 (CHH)

Chuman Lal Sahu S/o Gokul Sahu v. Dhanush Lal Sahu S/o Chuman Lal Sahu

2022-08-23

GOUTAM BHADURI, RADHAKISHAN AGRAWAL

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JUDGMENT : Goutam Bhaduri, J 1. The present appeal is against the judgment and decree dated 07.10.2017 passed by the First Addl. Principal Judge, Family Court Durg whereby the suit for declaration that the plaintiff is not the biological father of the defendant was dismissed. 2. According to the plaint, on a report being made by mother of respondent, a sessions case was registered against the appellant u/s 376 of IPC wherein he was acquitted. At the time of birth of the child Dhanush Lal, the name of plaintiff Chummanlal Sahu (appellant herein) was got recorded as father. The appellant contended that he never had physical relations with the mother to whom child Dhanush Lal was born. As such, the plaintiff cannot be declared to be a biological father of Dhanush Lal Sahu and declaration was sought for to that effect. 3. The defendant(s) filed their written statement and stated that in Sessions case registered under Section 376 IPC, certain compromise was effected and the prosecutrix was examined before the Court wherein she made a statement in favour of the plaintiff, therefore, the plaintiff was acquitted. During the cross examination before the Court in the said criminal case, when a question was posed to her as to whether she is ready and willing to go with the plaintiff if the accused plaintiff marries and keeps her as wife, she answered that she is ready and willing to marry the plaintiff but the marriage should be in the Court. In the said case, during the statement made of accused u/s 313 of CrPC, the appellant/ plaintiff also stated that if the complainant wants to marry and stay with him, then he is ready and willing to keep her. In the written statement, it is further contended that the birth of child Dhanush is an outcome of physical relations developed between the plaintiff and mother of respondent, therefore, the name of plaintiff got recorded in the birth certificate. The learned family Court dismissed the suit of the plaintiff. Hence, this appeal. 4. Learned counsel for the appellant would submit that there is no evidence on record that at any point of time, the mother of the defendant was in relation with the plaintiff appellant. The learned family Court dismissed the suit of the plaintiff. Hence, this appeal. 4. Learned counsel for the appellant would submit that there is no evidence on record that at any point of time, the mother of the defendant was in relation with the plaintiff appellant. He therefore submits that in absence of any evidence showing physical relations between the plaintiff and mother Durpat Bai, the Court below ought to have passed a declaratory decree and only on the basis presumption, the inference cannot be drawn that the plaintiff is biological father of Dhanush Lal Sahu. 5. No representation is made on behalf of the respondent despite repeated calls. 6. We have heard learned counsel for the appellant and have also perused the evidence of the plaintiff Chummanlal Sahu. In the cross examination of the plaintiff, he admits that a case u/s 376 IPC was registered against him in the year 2009 and before he was arrested, child Dhanush was born. It was further admitted that after birth of Dhanush, a meeting was held between the parents of the plaintiff and parents of the girl and subsequently during Chhatti ceremony of child, his parents sent clothes and other ornaments etc. He further admitted that after Chhatti programme that is after birth of the children, the mother of child came to his house. Thereafter some dispute took place. He denied to have given any contrary statement during the course of evidence of accused recorded in sessions case to the effect that he was ready and willing to marry and keep the mother of respondent. He further denied to have given any answer to question no.32 during the cross examination of accused to the effect that he is ready and willing to marry and keep the complainant with him if she wants to marry and stay with him, therefore, he be acquitted. The birth certificate was marked as Ex.P-1 wherein the name of child Dhanushlal, and the name of Chumman Lal stand recorded along with the name of mother. 7. In the Statement of D.W.1, she has deposed that on the pretext of marriage, the plaintiff developed physical relations with her but when she became pregnant, he refused to marry and out of that relation, a child was born. In the cross examination of the plaintiff/appellant, a question was posed by the Court that whether he is ready to undergo DNA test. In the cross examination of the plaintiff/appellant, a question was posed by the Court that whether he is ready to undergo DNA test. Though the objection was made on behalf of the plaintiff/appellant but the court allowed such question for the reason that it was a relevant point as the very paternity of child was in question. The appellant straight-away refused to undergo DNA test. 8. The Supreme Court in Sharda v. Dharampal (2003) 4 SCC 493 has dealt with similar issue when the DNA test is sought by one of the parties and at para 20 referred to the decision rendered by English Court in B.R.B. Versus J.B (1968) 2 All ER 1023 wherein it was held thus : “A Judge of the High Court has power to order a blood test whenever it is in the best interest of the child. The Judges can be trusted to exercise this discretion wisely. No limit condition or bound is set up to the way in which Judges exercise their discretion. The object of the court always is to find out the truth. When scientific advances give fresh means of ascertaining it, there should not be any hesitations to use those means whenever the occasion requires”. 9. Further, in the case of Goutam Kundu v. State of W.B. AIR 1993 SC 2295 initially the Court has held that Courts in India cannot order blood test as a matter of course and whenever applications are made for such prayers in order to have roving inquiry, the prayer for blood test cannot be entertained. It was further held that the Court must carefully examine as to what would be the consequence of ordering the blood test; whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman and therefore no person can be compelled to give sample of blood for analysis. 10. The said finding was further considered in case of Sharda vs. Dharampal (supra) and the Court held that if the respondent avoids such medical examination on the ground that it violates his/her right to privacy or for that matter right to personal liberty as enshrined under Article 21 of the Constitution of India, then it may in most of such cases become impossible to arrive at a conclusion. It was further held that no right to privacy specifically conferred by Article 21 of the Constitution of India and with the extensive interpretation of the phrase “personal liberty” this right has been read into Article 21, it cannot be treated as an absolute right. It was held that some limitations on this right have to be imposed and particularly where two competing interests clash. The Court further held if for arriving at the satisfaction of the court and to protect the right of a party to the lis who may otherwise be found to be incapable of protecting his own interest, the court passes an appropriate order, the question of such action being violative of Article 21 of the Constitution of India would not arise. It was further held that the court having regard to Article 21 of the Constitution of India must also see to it that the right of a person to defend himself must be adequately protected. The limitation was further imposed that court cannot order for a roving inquiry and there must have sufficient materials before it to enable it to exercise its discretion. 11. Lately thereafter the Supreme Court in Narayan Dutt Tiwari v. Rohit Shekhar (2012) 12 SCC 554 at Para 40 has reproduced the observations from the Court of Appeal (Civil Division) of H. and A. (Children Paternity Tests), which reads thus: “40. Though in the light of what we have held, it is not strictly relevant, but we are unable to restrain ourselves from recording what the Court of Appeal (Civil Division) observed in H. and A. (Children) (Paternity : Blood Tests), In re- 2002 EWCA (Civ) 383 : “Over thirty years ago in his speech in S. v. McC Lord Hodson said : (AC pp. 57 F-58 A) '…...The only disadvantage to the child which is put forward as an argument against the use of a blood test, not for therapeutic purposes but to ascertain paternity, is that the child is exposed to the risk that he may lose the protection of the presumption of legitimacy. Without seeking to depreciate the value of this presumption it is, I think, fair to say that whatever may have been the position in the past the general attitude towards illegitimacy has changed and the legal incidents of being born a bastard are now almost non-existent. Without seeking to depreciate the value of this presumption it is, I think, fair to say that whatever may have been the position in the past the general attitude towards illegitimacy has changed and the legal incidents of being born a bastard are now almost non-existent. I need not dilate upon this, for I recognise that it is impossible to say that there is no stigma of bastardy even though it be no more than the indirect stigma of the imputation of unchastity to the mother of the child so described. On the other hand, it is difficult to conceive of cases where, assuming illegitimacy in fact, it is to the advantage of the child that this legal status of legitimacy should be preserved only perhaps to be displaced by firm evidence of illegitimacy decided later in his or her life from a blood test. The interests of justice in the abstract are best served by the ascertainment of the truth and their must be few cases where the interests of children can be shown to be best served by the suppression of truth. Scientific evidence of blood groups has been available since the early part of this century and the progress of serology has been so rapid that in many cases certainty or near certainty can be reached in the ascertainment of paternity. Why should the risk be taken of a judicial decision being made which is factually wrong and may later be demonstrated to be wrong ?' Those principles have been consistently applied in subsequent cases, including H. (A Minor) (Blood Tests : Parental Rights), In re-1997 Fam 89 : (1996) 3 WLR 506 and T. (A Child) (DNA Tests : Paternity), In re- (2001) 3 FCR 577. The Jude sought to distinguish those two authorities in his concluding paragraph, which I have cited above. It draws the distinction that in those two cases there were serious doubts as to the husband's procreative capacities. I do not consider that factual distinction begins to displace the points of principle to be drawn from the cases, first that the interests of justice are best served by the ascertainment of the truth and second that the court should be furnished with the best available science and not confined to such unsatisfactory alternatives as presumptions and inferences. I do not consider that factual distinction begins to displace the points of principle to be drawn from the cases, first that the interests of justice are best served by the ascertainment of the truth and second that the court should be furnished with the best available science and not confined to such unsatisfactory alternatives as presumptions and inferences. It seems to me obvious that all the Lord Hodson expressed in the passage that I have cited applies with even greater force and logic in a later era. First there have been huge scientific advances with the arrival of DNA testing. Scientists no longer require blood, thus removing what for some is the unbearable process of its extraction. Of even greater importance is the abandonment of the legal concept of legitimacy achieved by the Family Law Act, 1987.” (emphasis supplied) It was further observed that paternity of any child is to be established by science and not by legal presumption or inference or by a long and acrimonious trial. 12. Subsequently, the Supreme Court in case of Dipanwita Roy Versus Ronobroto (Supra) has reiterated the principles laid down in Bhabani Prasad Jena v. Orissa State Commission for Women (2010) 8 SCC 633 , which are reproduced herein below : “14. A similar issue case to be adjudicated upon by this Court in Bhabani Prasad Jena v. Orissa State Commission for Women, wherein this Court held as under : 21. 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. 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. The other view is 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 only be prejudicial to the rights of the parties but may have devastating effect on the child. Sometimes the result of such scientific test may bastardise an innocent child even though his mother and her spouse were living together during the time of conception. 22. Sometimes the result of such scientific test may bastardise an innocent child even though his mother and her spouse were living together during the time of conception. 22. In our view, when there is apparent conflict between the right to privacy of a person not to submit himself forcibly 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. 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, whenever such a request is made. The court has to consider diverse aspects including presumption under section 112 of the Evidence Act; 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. 23. There is no conflict in the two decisions of this Court, namely, Goutam Kundu v. State of W.P. (1993) 3 SCC 418 and Sharda v. Dharampal, 2003 (4) SCC 493 . In Goutam Kundu [ (1993) 3 SCC 418 ], it has been laid down that courts in India cannot order blood test as a matter of course and such prayers cannot be granted to have roving inquiry; there must be strong prima facie case and the court must carefully examine as to what would be the consequence of ordering the blood test. In Sharda [ 2003 (4) SCC 493 ] while concluding that a matrimonial court has power to order a person to undergo a medical test, it was reiterated that the court should exercise such a power if the applicant has a strong prima facie case and there is sufficient material before the court. Obviously, therefore, 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.” Therefore, in view of the above legal position, if a strong prima facie case is made out, it would be permissible for a Court to direct the holding of a DNA examination to determine the veracity of the allegations. 13. 13. In sum and substance, the Supreme Court in case of Dipanwita Roy (supra) has observed that if the DNA test has been ordered it would be open for a party to expose the existence of fact by DNA test and the DNA will determine conclusively the veracity of accusation levelled by the husband against her. However, in case he/she declines to comply with the direction issued by the Court, the allegation would be determined by the court concerned by drawing the presumption of nature contemplated in section 114 of the Evidence Act in terms of Illustration (h) thereof. Section 114 as also Illustration (h) is relevant here and quoted below: “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;” 14. Applying the aforesaid legal position in the instant case and considering the question posed to the appellant and the answer given by him before the court below, when the appellant himself sought for a declaration that he is not a biological father of child, then he should have courageous enough to enter into witness box for the evidence qua the DNA test. Certainly, the Court cannot force the appellant to undergo DNA test but in case of refusal to comply with the direction of Court to expose the existence of fact that might have occurred, by such test, the adverse inference can be drawn. The statement of the plaintiff that after the birth of child, the father and mother performed certain rituals would be a relevant fact which can be considered to presume existence of certain facts with the aid of Section 114 of the Evidence Act and illustration (h) thereof. 15. In the result, after going through the entire facts and evidence on record, we do not find any merit in the appeal warranting interference by this Court in the impugned judgment and decree as the findings given by the court below are just and proper. Accordingly, the appeal fails and is dismissed. 15. In the result, after going through the entire facts and evidence on record, we do not find any merit in the appeal warranting interference by this Court in the impugned judgment and decree as the findings given by the court below are just and proper. Accordingly, the appeal fails and is dismissed. The parties shall bear their own costs.