THE HONOURABLE Dr. JUSTICE G. RADHA RANI
CRIMINAL REVISION CASE No.1092 OF 2017
ORDER:
This Criminal Revision Case is filed by the petitioner-Accused aggrieved by the order dated 27.03.2017 in Crl.M.P. No.799 of 2017 in C.C. No.324 of 2010 passed by the XIII Additional Chief Metropolitan Magistrate (Mahila Court), Hyderabad in directing him to undergo DNA test to know the paternity of the child of PW.1 (de facto complainant).
2. The petitioner-Accused was charged for the offence under Section 498-A IPC. The de facto complainant was examined as PW.1 in the said case. She stated in her evidence that the accused made allegations suspecting her character disputing the paternity of the child born out of the marriage. The accused denied the marriage between himself and PW.1. He stated that the child was not born through him and that they had not resided under one roof. After cross-examination of the de facto complainant (PW.1,) she came forward with an application to conduct DNA test on the accused for determining the paternity of the child. As such, the prosecution filed the application to Dr.GRR,J 2 Crl.R.C. No.1092 of 2017 direct the accused to subject himself to DNA test to prove the paternity of the child.
3. The accused filed counter opposing the petition contending that it was not necessitated under law and the application was filed only to protract the proceedings.
4. The trial court, on hearing both the learned Additional Public Prosecutor and the learned defence counsel and considering several citations produced by both sides, allowed the application directing the accused to undergo the DNA test to know the paternity of the child.
5. Aggrieved by the said order, the accused preferred this revision contending that the complaint filed under Section 498-A IPC had no nexus with the paternity of the child. The court ought to have taken into consideration that allowing the Criminal M.P. would amount to infringement of his fundamental right guaranteed under Article 21 of the Constitution of India. There was no whisper in the complaint or in the chief or cross examination of PW.1 about the paternity of the child. The prosecution filed the application only to fill up the lacunae. The application itself was not maintainable and the court below erred in Dr.GRR,J 3 Crl.R.C. No.1092 of 2017 misinterpreting the judgments which would clearly bar any such petition for conducting DNA test and prayed to set aside the order dated 27.03.2017 passed in Crl.M.P. No.799 of 2017 in C.C. No.324 of 2010 by the XIII Chief Metropolitan Magistrate (Mahila Court), Hyderabad.
6. Heard learned counsel for the revision petitioner-accused and the learned Additional Public Prosecutor.
7. The learned counsel for the revision petitioner submitted that the trial was completed before the trial court and the case was at the stage of arguments. Because of the pendency of the revision case, the case could not be proceeded forward and submitted that if an order was given by this Court to draw an adverse inference in case of revision petitioner not complying the order, the interest of both the parties would satisfy and prayed to pass orders accordingly.
8. Perused the record. The charge sheet would disclose that the de facto complainant, who was a doctor, stated that her marriage was performed with the petitioner-accused on 02.02.1990 in the presence of elders and well wishers. After the marriage, she went to her matrimonial house at Tenali and thereafter she along with her husband Dr.GRR,J 4 Crl.R.C. No.1092 of 2017 shifted to different places i.e. Guntur, Prakasham and Hyderabad. Her husband frequently harassed her mentally and physically by suspecting her character and fidelity. During the wedlock, she was blessed with a male child, who was now aged 18 years. But, the harassment of her husband was not stopped against her. Subsequently, she came to know that her husband married another woman, by name, Sandhya and was having a daughter, aged 7 years. When she questioned about the second marriage, he threatened her with dire consequences and warned her not to interfere in the affairs of his second marriage. He had beaten her and necked out from the house at Kukatpally, Hyderabad.
9. The accused denied his relationship with the de facto complainant and gave a suggestion that he had not resided with her. Since the accused denied his relationship with the de facto complainant, she came forward with this petition.
10. In the judgments relied by both sides, the issue was with regard to paternity of the child. The paternity of the child is not in question in this case and it is not the issue relevant to decide the criminal case. The DNA test cannot be ordered as a matter of routine and as observed by the trial court itself in the judgment in Bhabani Dr.GRR,J 5 Crl.R.C. No.1092 of 2017 Prasad Jena v. Convenor Secretary, Orissa State Commission for Women and another1, the court has to consider the diverse aspects including the presumption under Section 112 of the Evidence Act, the pros and cons of such order and the test of eminent need whether it was not possible for the court to reach the truth without use of such test.
11. But, without such eminent need to decide any such issue before the court, the court ordered for such a test to be conducted. This court does not find any necessity to order for DNA test as a matter of course.
12. Hence, the Criminal Revision Case is allowed setting aside the order dated 27.03.2017 in Crl.M.P. No.799 of 2017 in C.C. No.324 of 2010 passed by the XIII Additional Chief Metropolitan Magistrate (Mahila Court), Hyderabad.
Miscellaneous Applications, if any pending, shall stand closed.
_____________________ Dr. G. RADHA RANI, J January 11, 2022 KTL 1 AIR 2010 SC 2851