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2023 DIGILAW 310 (UTT)

Murtaza v. State of Uttarakhand

2023-05-16

SHARAD KUMAR SHARMA

body2023
JUDGMENT : Sharad Kumar Sharma, J. The intricate question, which has been attempted to be argued by the learned counsel for the applicant, while giving a challenge to the impugned order dated 16.02.2023, by virtue of which, the Family Court, Haridwar, has allowed the application as preferred by the respondent for the purposes of conducting the DNA test on the two children, in order to establish the fact beyond any doubt that they are born out of the relationship, which the applicant had with the present applicant. 2. The argument of the learned counsel for the applicant while putting a challenge to the said order dated 16.02.2023, is primarily based upon the judgment as reported in AIR 1993 SC 2295 , “Goutam Kundu Vs. State of Westbengal and another”, whereby the Hon’ble Apex Court while considering the implications of Section 112 of the Evidence Act and reading in consonance, and in context of the provisions of the CrPC, for the purposes of conducting the DNA test, has laid down the wider principles in paragraph no.26 of the judgment, which has been heavily relied by the learned counsel for the applicant. Paragraph no.26, of the said judgment is extracted hereunder:- “26. From the above discussion it emerges:- (1) that courts in India cannot order blood test as matter of course; (2) wherever applications are made for such prayers in order to have roving inquiry, the prayer for blood test cannot be entertained. (3) There must be a strong prima facie case in that the husband must establish non-access in order to dispel the presumption arising under section 112 of the Evidence Act. (4) 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. (5) No one can be compelled to give sample of blood for analysis.” 3. Before venturing to answer the said question raised by the learned counsel for the applicant, with regards to the non compliance of the parameters laid down by the aforesaid judgment and with all due reverence at my command, this Court is of the view, that the ratio laid down by the Hon’ble Apex Court cannot be unilaterally and universally be applied, irrespective of the consideration of the fact and circumstances of each case. Its applicability will always depend upon the facts and circumstances under which the necessity for conducting the DNA test was felt, to be expedient by the court for an effective adjudication of the controversy prevailing inter se between the parties, which is placed before the Court. 4. As far as the instant case is concerned, the fact as it has been pleaded in the present C482 application by the present applicant is by putting a challenge to the impugned order which was passed by the Judge Family Court in Case No.184 of 2021, “Smt. Husna and others Vs. Murtaza” being a proceeding which were held under section 125 of CrPC. The application for conducting a DNA test on the respondent nos.3 and 4, was permitted under the given set of circumstances of this particular case, where the case of the present applicant in the C482 application was that respondent no.2, was alleged to have been earlier married to one Shri Nawabuddin, who was a resident of Meerut, and out of the said wedlock, she had two sons, who were born. Later on, the marriage of the respondent no.2 with Shri Nawabuddin, was severed in 2014, and owing to the divorce given in February, 2014. Respondent no.2, is alleged to have married with one Shri Javed, and it is yet again contended that respondent nos.3 and 4, have born out of the matrimonial relationship between respondent no.2 and Javed, the second husband. 5. It is contended in the C482 application, that respondent no.2, is concealing the factum of her marriage with Shri Nawabuddin, and the fact of children born out of the first marriage, and admittedly they were “living with the applicant”, along with the family of the applicant in an assured anticipation of the marriage with the applicant. At least from the averments made in paragraph no.6, of the C482 application, applicant’s own case had been that respondent no.2 lived with the applicant along with family of the applicant for quite a long time in an anticipation of the marriage with the applicant. He further pleads that, however, no marriage was ever solemnized between the applicant and the respondent no.2, nor any physical relation were established between them, as such, he on that basis, he contends that the two children respondent nos.3 and 4 respectively, on whom, DNA test was required to be conducted in order to test their parentage. He further pleads that, however, no marriage was ever solemnized between the applicant and the respondent no.2, nor any physical relation were established between them, as such, he on that basis, he contends that the two children respondent nos.3 and 4 respectively, on whom, DNA test was required to be conducted in order to test their parentage. The applicant denies the application, that since there was no relationship and there was no access of the present applicant to the respondent no.2, there was no necessity to pass any order on the application for conducting the DNA test on the respondent nos.3 and 4, 6. Owing to the parameters which has been attempted to be argued by the learned counsel for the applicant, as reported in Goutam kundu (Supra), wherein, under its clause 3, it was a strong prima facie case, which was primarily required to be established by husband (male), that he had no excess to the applicant to dispel the presumption arising under section 112 of the Evidence Act. Owing to the averments made in paragraph no.6 of the C482 application itself, the stand taken by the applicant, it is an admitted fact that she was residing with the present applicant, and she continued to reside so in that status under a presumption with the present applicant, that he would be marrying the respondent no.2. However, the factum of the marriage is attempted to be denied by the learned counsel for the applicant. 7. If the aforesaid averment is taken into consideration, the Hon’ble Apex Court as back as in 1952, in the judgment reported in AIR 1952 SC 231 , “Gokal Chand Vs. Pravin Kumari”, while considering the implications of section 114 of the Evidence Act for the purposes of deriving a conclusion as to what would be the impact of the continuous cohabitation in the light of the presumption arising out of the provisions contained under section 114 of the Evidence Act. The Court has held, that even if there is no customary marriage formalities were performed between the male and female, who are admittedly residing together as apparent from the paragraph no.6, of the present C482 application, even then the presumption would be that, they were living as a husband and wife, even if the factum of the marriage is failed to be proved. The relevant part of the said judgment as contained in paragraph no.10, is extracted hereunder:- It seems to us that the question as to how far the evidence of those particular witnesses is relevant under section 50 is academic, because it is well-settled that continuous cohabitation for a number of years may raise the presumption of marriage. In the present case, it seems clear that the plaintiff and Ram Piari lived and were treated as husband and wife for a number of years, and, in the absence of any material pointing to the contrary conclusion, a presumption might have been drawn that they were lawfully married. But the presumption which may be drawn from long cohabitation is rebuttable, and if there are circumstances which weaken or destroy that presumption, the court cannot ignore them. We agree with the learned Judges of the High Court that in the present case, such circumstances are not wanting, and their cumulative effect warrants the conclusion that the plaintiff has failed to prove the factum of his marriage with Ram Piari.” 8. A similar issue was considered by the three Judges Bench of the Hon’ble Apex Court in the judgment reported in 1978 SC 1557, “Badri Prasad Vs. Dy. Director of Consolidation and others” yet again it was an authority rendered in the context of the implications of the section 114 of the Evidence Act, with regards to the presumption of marriage. The Hon’ble Apex Court in paragraph no.1, has observed, that a long continuous residence of the male and female together at a common place in the absence of there being any formal ceremonial process of the marriage. In that case too, the presumption would still be that they are living together as husband and wife in the society. The relevant paragraph is extracted hereunder:- “For around 50 years, a man and a woman, as the facts in this case unfold, lived as husband and wife. An adventurist challenge to the factum of marriage between the two, by the petitioner in this special leave petition, has been negatived by the High Court. A strong presumption arises in favour of wed-lock where the partners have lived together for a long spell as husband and wife. Although the presumption is rebuttable, a heavy burden lies on him who seeks to deprive the relationship of legal origin. Law leans in favour of legitimacy and frowns upon bastardy. A strong presumption arises in favour of wed-lock where the partners have lived together for a long spell as husband and wife. Although the presumption is rebuttable, a heavy burden lies on him who seeks to deprive the relationship of legal origin. Law leans in favour of legitimacy and frowns upon bastardy. In this view, the contention of Shri Garg, for the petitioner, that long after the alleged marriage, evidence has not been produced to sustain its ceremonial process by examining the priest or other witnesses, deserves no consideration. If man and woman who live as husband and wife in society are compelled to prove, half a century later, by eye- witness evidence that they were validly married, few will succeed. The contention deserves to be negatived and we do so without hesitation. The special leave petitions are dismissed.” 9. The Hon’ble Apex Court, recently in yet again in another judgment as reported in 2022 SCC online SC 737, Kattukandi Edathil Krishnan and another Vs. Kattukandi Edathil Valsan and others”, has observed that in the context of the family and the personal law, the presumption has to be drawn as per the ratio laid down by the Hon’ble Apex Court in paragraph no.15, if a male and female are living together for a considerable long period, the presumption of the marriage would go in their favour, though despite of the fact that there is no proof of marriage existing on record. Relevant paragraph is extracted hereunder:- “15. It is well settled that if a man and a woman live together for long years as husband and wife, there would be a presumption in favour of wedlock. Such a presumption could be drawn under section 114 of the Evidence Act. Although, the presumption is rebuttable, a heavy burden lies on him who seek to deprive the relationship of legal origin to prove that no marriage took place.” 10. In the instant case, when the applicant himself has come up with a case, that the respondent no.2, was admittedly living with him under an anticipation of probable marriage and when he denied the fact of the marriage being solemnized ever since 2014. In the instant case, when the applicant himself has come up with a case, that the respondent no.2, was admittedly living with him under an anticipation of probable marriage and when he denied the fact of the marriage being solemnized ever since 2014. If he attempts to deny the birth of the two children from the aforesaid relationship, the proceedings to conduct a DNA test, would be inevitable in facilitation of the process of the court to come to the rightful conclusion, that as to whether at all the respondent nos.3 and 4, had born out of the physical relationship which the respondent no.2, had with the present applicant. 11. If the said controversy is looked into in the light of circumstances of the instant case in the context of the application filed by the respondent no.2, on 23.02.2022, praying for a DNA test, where it has been pleaded by the respondent no.2, was that she was residing with the present applicant, and owing to the controversy, which later emerged amongst themselves, she had filed an application under section 125 of CrPC, to be read with section 7 (cha) of the Family Court Act, wherein she contended that respondent nos.3 and 4, namely, Anas and Ameer Hamja, had born out of and as a result of the matrimony between the applicant and the respondent no.2. 12. In support of the said contention, she contends that she had certain evidences by way of certain photographs and videos, which she wanted to rely upon in the proceedings before the learned Trial Court, in order to establish that she was actually the wife of the applicant and hence she was entitled to be granted maintenance under section 125 of CrPC. The present applicant objected the said application and what is important is that if paragraph no.2, of the said objection is taken into consideration, the same has been pleaded accordingly. If the totality of the pleadings are taken into consideration, the applicant admits in his objection, that respondent no.2, was residing with the present applicant and it is rather his case, that whenever he was not present in the residence, the first husband Nawabuddin used to come and visit her. If the totality of the pleadings are taken into consideration, the applicant admits in his objection, that respondent no.2, was residing with the present applicant and it is rather his case, that whenever he was not present in the residence, the first husband Nawabuddin used to come and visit her. Out of this pleadings which has been raised in the objection, one aspect which is quite apparent and satisfies the conditions of the judgment of Goutam kundu, that the access of the present applicant to respondent no.2, could not be doubted when he has raised an allegation, that the erstwhile husband of the respondent no.2, used to still visit her at the residence or the places of the abode of the present applicant. Hence, it would satisfy the conditions provided under clause (3) of the paragraph no.25, of the judgment of Goutam kundu (Supra). 13. Secondly, he submits, that the alleged photograph and the video footage, he submits that no sanctity could be attached to the said evidence, in order to establish the relationship of being a married wife of the present applicant. Learned Family Court while considering the application preferred by the applicant in order to dispel any doubt pertaining to, as to whether the respondent nos.3 and 4 , were the children born out of the relationship of the applicant with the respondent no.2 or they were the children born out of the second marriage of the respondent no.2, i.e. with one Javed, was a fact which was required to be established for the purposes of considering the application under section 125 of CrPC. 14. The reason, which has been taken into consideration by the Hon’ble Apex Court while directing to conduct the DNA test was in the light of the principles laid down by the Hon’ble Apex Court in a judgment reported in 2010 (7) SCC 263 , “Selvi and others Vs. 14. The reason, which has been taken into consideration by the Hon’ble Apex Court while directing to conduct the DNA test was in the light of the principles laid down by the Hon’ble Apex Court in a judgment reported in 2010 (7) SCC 263 , “Selvi and others Vs. State of Karnataka” cannot be said to be in contravention to any of the procedural law, which could call for any interference under section 482 of CrPC, but rather this Court is of the view that in case, if the DNA test, as directed to be conducted, in pursuance to the impugned order dated 16.02.2023, it would rather facilitate the present applicant to justify his stand that he is not the natural father of the respondent nos.3 and 4, hence giving a challenge to the order directing to conduct the DNA test while admitting the fact of the access of the present applicant with the respondent no.2, which itself creates a doubt pertaining to the bona fide of the present applicant, particularly, in the light of the judgment already referred to by this Court in accordance with the pleadings. Since applicant was residing with the respondent no.2, there was an apparent possibility of access and in that view of the matter, conducting the DNA test on respondent nos.3 and 4, would not be in consonance to the provisions of the law. 15. Hence, the C482 application doesn’t calls for any interference, the same is accordingly dismissed.