Smt Sonia Srivastava And Another vs State Of U.P. And Another
2023 Latest Caselaw 11678 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

											A.F.R.
 
										    Reserved
 

 
Court No.53
 
Case :- APPLICATION U/S 482 No. - 35136 of 2022
 

 
Applicant :- Smt Sonia Srivastava And Another
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Applicant :- Ashwani Kumar Sachan,Saurabh Sachan
 
Counsel for Opposite Party :- G.A.,Anil Kumar
 

 
Hon'ble Umesh Chandra Sharma,J.r
 
1.

This application has been filed by the applicants to quash the order dated 20.07.2022 passed by Principal Judge Family Court, Kanpur Nagar, in Case No. 555 of 2015 under Section 125(6) Cr.P.C. and direct the opposite party no. 2 to pay the interim maintenance to the tune of Rs. 30,000/- per month (Rs. 20,000/- to the applicant no.1-wife and Rs. 10,000/- to applicant no.2-daughter) and also direct the Trial Court to take all necessary steps immediately to enforce the orders dated 27.3.2018 and 24.9.2019 for conducting the D.N.A. test of opposite party no.2 for ascertaining his biological paternity of the applicant no. 2.

2. In brief, facts of the case are that the opposite party no.2 by creating a deception that he was widower whose wife expired 8 years ago had solemnized a second marriage with applicant no. 1 through Arya Samaj rituals on 19.2.2006 and from their cohabitation applicant no.2 was born on 14.1.2007. Later on, when it revealed that wife of opposite party no.2 namely Smt. Mamta Sharma was alive, he stated that he will convince his wife and children born from first wife then he will introduce the applicant in his home. Resultantly, an F.I.R. dated 15.9.2007 under Section 494 I.P.C. has been lodged by the applicant against her husband in which charges have been framed. But due to scarcity of basic resources causing difficulty in survival and living with comfort with her new daughter and due to complete dependence on her brothers, the applicant wife had moved application under Section 125 Cr.P.C. On 22.7.2015 for seeking maintenance but due to dilatory tactics of the husband in deciding the aforesaid application and refusal from giving not even a penny, the wife was constrained to move an application under Section 125(3) Cr.P.C. for getting interim maintenance for salvage and survival of her daughter and herself.

3. The opposite party no.2 in reply to the aforesaid applications, had flagrantly claimed that he was neither a biological father nor has adopted the applicant no.2 and there was no marriage ever solemnized with the applicant no. 1. Hence, he is not bound to maintain an stranger. Surprisingly, simultaneously he is also baldly emphasizing that he is a pauper person with no source of income. Opposite party no. 2 is mentioned as father of applicant no. 2 in her every document from birth certificate to school admission form and I-card. There are genuine photographs from which it is tangible that opposite party no.2 is a husband of the applicant no.1 and father of applicant no.2. Due to flagrant denial by opposite party no.2 as husband of applicant no.1 and biological father of applicant no.2, the applicant no. 1 moved an application dated 27.3.2018 for conducting D.N.A. test profiling and identification test to establish the paternity of her daughter as opposite party no. 2 is the biological father of her daughter, applicant no.2. Initially the opposite party no.2 had given consent to give her blood sample for D.N.A. identification. On 5.8.2019 the opposite party no.2 was directed to deposit the requisite amount fee for D.N.A. testing but he filed recall application which was rejected by the Trial Court on 24.2.2019.

4. Against the order dated 24.2.2019, a highly belated application U/S 482 Cr.P.C. No. 5983 of 2020 was filed by opposite party no.2 wherein till date no final order has been passed. Thereafter, from the conduct of husband, the Trial Court came to conclusion that he was not interested for D.N.A. test and on 2.11.2019 recorded in the order-sheet that husband is procrastinating the proceedings and actually he is not ready for D.N.A. test, he was lingering on the proceedings. Hence, the Trial Court proceeded and observed that it will take legal presumption u/s 114 of The Evidence Act against opposite party no. 2. Surprisingly, the Trial Court without adjudicating the aspect that opposite party no. 2 is biological father of applicant no. 2 under legal presumption under Section 114 of the Evidence Act and is bound to maintain his daughter and wife as he had solemnized second marriage after defrauding the applicant no. 1 and that he is bound to undergo D.N.A. test, in a cursory & hasty manner dismissed the application under Section 125 (6) Cr.P.C. Vide impunged order dated 20.7.2022. The applicant no. 1 declares that her daughter Km. Tanishka is the natural and biological daughter of the opposite party no.2- Ramesh Chandra Sharma, born from their wedlock and she declares on behalf of applicant no. 2 that she is ready to undergo any D.N.A. test for the purpose of establishing and proving the fact that she is not the child of any unknown paternal identity and opposite party no. 2 is her natural & biological father and she is entitled to get maintenance from him. The applicant no. 2 is an unemployed abandoned married women, she is absolutely financially dependent on her brothers. Indeed she is qualified as Masters but after birth of applicant no. 2 she is completely engrossed in bringing and rearing her up.

In support of his submission, learned counsel for the applicants has placed reliance on the following judgments:

(a) Sharda Vs. Dharmpal (2003) 4 SCC 493

(b) Bhabani Prasad Jena Vs. Convenor Secretary, Orissa State Comission for Women AIR 2010 SC 2851

(c) Y.B. Patil Vs. Y.L. Patil (1976) 4 SCC 66

(d) Badshah Vs. Urmila Badshah Godse & Anr., (2014) SCC 188.

It has been contended that on the basis of above cited case-laws the impugned orders be quashed and the relief claimed by the applicants be granted.

5. Opposite party no. 2 appeared and filed counter affidavit and stated that neither the applicant no. 1 is legally weded wife nor the applicant no. 2 is his biological daughter, he is already married to Smt. Mamta Sharma and has children with her. The application under Section 125 Cr.P.C. is misconceived and not maintainable at all. The allegations are false and fabricated only to harass him for making money from him. The application under Section 125 Cr.P.C. was filed in the year 2015 and the application 125 (6) Cr.P.C. has been moved in the year 2020 after lapse of 5 years which itself shows sanctity of the bogus applicants. The opposite party no. 2 was ready to give sample for D.N.A. Test but the applicant herself moved application on 9.9.2019 for recalling the order dated 5.8.2019 and upon such application the Trial Court has recalled the order dated 5.8.2019 vide order dated 3.11.2019. Though the order dated 5.8.2019 has been challenged by him in Application u/S 482 No. 5893 of 2020 but the same has become infructuous after recall of the order dated 5.8.2019. The trial Court has wrongly drawn the presumption under Section 114 of the Evidence Act. The opposite party no. 2 is neither biological father of the applicant no. 2 nor adopted father of the applicant no. 1 and no marriage has been solemnized and proved with the applicant no. 1, therefore, he is not bound to pay maintenance to the strangers in any way and as such the Trial Court has rightly rejected the application of the applicant under Section 125 (6) Cr.P.C. Hence, this application be also rejected.

6. No rejoinder affidavit has been filed by the applicants.

7. Heard Sri Saurabh Sachan, learned counsel for the applicants, Sri Anil Kumar Mishra learned counsel for opposite party no.2 as well as Sri Pankaj Tripathi, learned A.G.A. and perused the record.

8. It is admitted to both the parties that opposite party no. 2 is already legally married person with one Smt. Mamta Sharma. According to the applicant no. 1 she was defrauded by opposite party no. 2 saying himself to be widower therefore she solemnized marriage with opposite party no.2 and out of their cohabitation, applicant no. 2 has born. Certainly, in all the papers opposite party no.2 is mentioned as father of the applicant no.2. There are some photographs which show primafacie that once upon a time the applicants and opposite party no. 2 remained together and spent pleasure time with each other and they have also visited some tourist places where they got their photographs clicked together.

9. Opposite party no.2 could not deny such photographs. It has also not been contended that such photographs are the result of trick photography. The opposite party no. 2 has been shown as father of opposite party no. 2 in Nagar Nigam records and also in school records of applicant no.2, however, there is no proof that any application for quashment of the same has been moved/filed by the opposite party no.2. It is obvious from the order-sheet that initially the opposite party no.2 had consented to give blood sample but when the Court ordered to pay him the requisite fee for conducting the D.N.A. test, he did not come forward and did not pay fee to comply with the order of the Court. Therefore, the Court was bound to draw adverse inference against him in this regard. There is no need to discuss the law regarding question of D.N.A. testing as it has been propounded in several decisions by the Apex Court that taking sample for D.N.A. is not in violation of Article 20 (3) of the Constitution of India.

10. Neither the applicants nor the opposite party no.2 have filed the copy of the Application U/S 482 Cr.P.C. No. 5893 of 2020 to know as to what grounds have been taken by opposite party no.2 therein. However, from evidence on record it is crystal clear that though the opposite party no.2 was ready to undergo the D.N.A. test but he neither deposited the requisite fee nor attended the hospital on the date fixed by the Trial Court rather he filed the petition under Section 482 Cr.P.C. for which he did not take pain to get it decided at the earliest. The demeanor and attitude of opposite party no2 has been considered by the Trial Court and an order has been passed that when opposite party no.2 is not undergoing D.N.A. test, in such a circumstance an adverse legal presumption would be drawn against him. Though till now no such adverse presumption/inference has been drawn by the Trial Court. This Court is of the view that it is a matter of discussion and serious scrutiny as to whether a person who is denying to undergo the D.N.A. test, his sample can be taken forcefully or not. Even in the citation cited by the applicants' counsel, the Apex Court has held that if a person is denying to undergo with D.N.A. testing, an adverse inference would be drawn against him and the case would be proceeded on that basis and such adverse inference would be considered at the time of final disposal of the case.

11. An application under Section 125(6) Cr.P.C. had been moved by the applicant no. 1 for interim maintenance which was declined on the ground that till now it has not been proved that the applicant no. 1 is the legally wedded wife of opposite party no.2 and applicant no.2 is the biological daughter of him.

12. This Court is of the opinion that an application under Section 125 Cr.P.C. could be decided positively on the basis of documents supplied by the applicants. There is school document in which opposite party no.2 has been recorded as father of the applicant no.2, there is a document of Nagar Nigam Kanpur that a female child was born on 14th January, 2007 in Navyug Nurshing Home, whose mother is applicant no. 1, Smt. Sonia Srivastava and whose father is opposite party no. 2, Ramesh Chandra Sharma. Both these documents have not been legally challenged by the opposite party no. 2. The photographs in which the applicants and opposite party no.2 are shown together, are also primafacie evidence to establish the relations between the applicants and opposite party no.2. According to this Court, on the basis of these documents and the adverse inference drawn against the opposite party no.2 the Trial Court was competent to decide the application under Section 125 Cr.P.C. and also the application under Section 125 (6) Cr.P.C.

13. Though in some cases it has been held that legally married Hindu male or Hindu and Muslim women already married, can not claim that he or she is in live-in-relationship but the instant case is different as the contention of applicant no. 1 is this that opposite party no.2 who was already married concealing his marital status contacted her and solemnized marriage with her and cohabited with her that led to the birth of applicant no. 2. In such a situation in addition to above evidence a ground of live-in-relationship may also be considered by the Trial Court, if the same is being proved. It has also to be borne in mind that according to Section 16 of The Hindu Marriage Act, any child born out of void and voidable marriages, shall be treated to be legitimate child

14. This Court is of the view that with regard to drawing adverse inference against opposite party no. 2, an exhaustive and comprehensive order was required to be passed but no such order has been passed by the Trial Court. According to this Court, one more opportunity may be provided to the opposite party no.2 for depositing the fee and for giving sample for D.N.A. test and if he fails to do so, the Family Court shall be free to draw the adverse inference against opposite party no.2 regarding paternity of applicant no.2. This fact would be kept in mind that generally a woman and a girl child would not made such claim which may diminish their character, career, honour, respect etc. for any false claim forever.

15. When the case of applicant no. 1 is that opposite party no.2 solemnized marriage with her concealing his martital status with his wife Smt. Mamta Sharma, it has to be seen whether the alleged second wife is entitled for maintenance or not. Certainly, a woman living in live-in-relationship is entitled to maintenance. It is the Trial Court who will ascertain on the basis of evidence that applicant no.1 had lived in live-in-relationship with opposite party no. 2 for some time or not. It appears contradictory that on one hand the Trial Court has concluded that on the basis of non compliance for participation in D.N.A. test, an adverse inference shall be drawn against the opposite party no.2 and on the other hand it has dismissed the interim maintenance application.

16. On the basis of above discussion, the application under Section 482 Cr.P.C. is liable to be allowed.

Order

The application is allowed in the following terms:

(a) One month more time is provided to opposite party no.2 for giving D.N.A. sample and depositing the requisite fee, if he fails to do so within the above stipulated period, the Family Court would be free to draw the adverse inference against the opposite party no.2 and thereafter opposite party no.2 would not be compelled to give the sample for D.N.A. test.

(b) If result of the D.N.A. test is found positive and in favour of the applicants, the applications under Section 125 and Section 125 (6) Cr.P.C. shall be decided taking help of such report. If D.N.A. test report is not obtained due to non-cooperation of the opposite party no.2, the Court shall proceed with the case on the basis of adverse inference drawn by it alongwith oral and documentary evidence filed by the parties0.

Order Date :- 19.4.2023

S.Verma

(Umesh Chandra Sharma,J.)