Kadali Durga Rao, W.G.Dt., vs Kadali Surya Kumari, Wg.Dt Anr, ...
2021 Latest Caselaw 209 AP

           THE HON'BLE SRI JUSTICE B.KRISHNA MOHAN


                CRIMINAL PETITION NO.2376 of 2015

ORDER:

This Criminal Petition arises against the order in

Crl.M.P.No.2467 of 2013 in M.C.No.46 of 2011 on the file of the II

Additional Judicial Magistrate of I Class, Tanuku, dated 25.02.2015

seeking to quash the same under Section 482 of Criminal Procedure

Code.

2. Heard the learned counsel for the petitioner and the learned

counsel for the 1st respondent.

3. The petitioner herein is the respondent in Crl.M.P.No.2467 of

2013 and as well as in M.C.No.46 of 2011 on the file of the II

Additional Judicial Magistrate of I Class, Tanuku and the 1st

respondent herein is the petitioner in Crl.M.P.No.2467 of 2013 and

the 1st petitioner in M.C.No.46 of 2011 on the file of the II Additional

Judicial Magistrate of I Class, Tanuku. The 1st respondent herein

along with her daughter filed M.C.No.46 of 2011 against her husband

arraying him as the sole respondent under Section 125 of Cr.P.C

seeking to pay an amount of Rs.8,000/- per month to the petitioners

towards maintenance.

4. The 1st respondent herein who is the petitioner in M.C.No.46 of

2011 contends that she has got acquaintance with the respondent

therein/the petitioner herein since 2007 and at that time, he used to

tease her with a demand to satisfy his lust by promising that he

would marry her, treated her as his wife and enjoyed her sexually.

While so, due to sickness, when she went to medical check-up, the

doctor informed her that she was carrying and the same was informed

to him/the respondent therein with a request to marry her. In turn,

he advised her to undergo for abortion which was denied by her and

he also denied to marry her. Accordingly disputes arose between

them. She submits that having no other alternative, she lodged a

report before the concerned police on 23.08.2009 and a crime was

registered against the respondent therein. Then, she gave birth to the

2nd petitioner therein on 26.01.2010. For the above said reasons, she

claimed maintenance for herself and her child from the respondent

therein under Section 125 of Cr.P.C which is pending for

consideration. After enquiry, when it was posted for arguments, she

also filed Crl.M.P No.2467 of 2013 in M.C.No.46 of 2011 before the

trial Court under Section 45 of the Indian Evidence Act seeking to

refer the 2nd petitioner therein and as well as the sole respondent

therein for DNA test to determine the paternity of the respondent

therein with respect to the 2nd petitioner who is a child born to them

allegedly, as the respondent therein denied the relationship with her

intoto and denied the paternity of the child also. Then the respondent

therein filed a counter opposing the prayer sought for to refer the

parties to DNA test contending that he was tried for the offences

punishable under Sections 417 and 376 of Indian penal Code basing

upon a complaint filed by the petitioner therein in S.C.No.87 of 2011

on the file of the Assistant Sessions Judge, Tanuku which was ended

in acquittal on merits and the said Crl.M.P No.2467 of 2013 in

M.C.No. 46 of 2011 on the file of the II Additional Judicial Magistrate

of I Class, Tanuku was filed only to harass and blackmail the

respondent therein for extraction of money.

4. After hearing both the sides, the trial court considered the point

'whether the 2nd petitioner therein is entitled for DNA test as prayed

for' by referring the respondent therein for medical examination. The

trial court observed that as per Section 125 of Cr.P.C., the legitimate

and illegitimate child are entitled for maintenance from the father,

but in this case, the respondent is denying with the acquaintance of

the 1st petitioner and not agreeing the 2nd petitioner as either

legitimate or illegitimate child of the 1st petitioner and the respondent

therein. So that, the trial court felt it necessary to prove the paternity

of the 2nd petitioner to claim maintenance from the respondent and

accordingly allowed the said petition for DNA test to take the blood

samples of the 2nd petitioner to APFSL, Hyderabad along with the

respondent, vide order, dated 25.02.2015.

5. Aggrieved by the same, the petitioner herein filed the present

Criminal Petition before this Court seeking to quash the same on the

ground that it infringes his right to personal liberty under Article 21

of the Constitution of India and the trial court has no power to compel

him to undergo for DNA test or any other medical examination to

determine the paternity against his will. It is further contended by

the petitioner herein that the 1st respondent herein filed a

complaint/report against him under Section 376 and 418 of Indian

Penal Code and the same was charge sheeted and tried in S.C.No.87

of 2011 on the file of the Assistant Sessions Judge, Tanuku which

was ended in acquittal. Consequent upon dismissal of the said case,

she again filed M.C.No.46 of 2011 on the file of the II Additional

Judicial Magistrate of I Class, Tanuku to extract money from him.

Since there is an acquittal of S.C.No.87 of 2011 on the file of the

Assistant Sessions Judge, Tanuku, the trial court ought to have

drawn a presumption that there is no sexual intercourse between the

parties and dismissed the claim of the 1st respondent herein in

Crl.M.P.No.2467 of 2013 in M.C.46 of 2011 on the file of the

II Additional Judicial Magistrate of I Class, Tanuku.

6. The learned counsel for the petitioner herein referred the

following Sections of law:

      a)    Section 125 of Cr.P.C.

      b)    Section 112 of the Indian Evidence Act.

Section 125 of Cr.P.C:- Order for maintenance of wives, children

and parents:- (1) If any person having sufficient means neglects or

refuses to maintain-

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or

(d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct:

Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means.

Explanation.- For the purposes of this Chapter,-

(a) " minor" means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875 ); is deemed not to have attained his majority;

(b) " wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.

(2) Any Such allowance shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance.

(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month' s allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:

Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due:

Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.

Explanation.- If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife' s refusal to live with him.

(4) No Wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.

(5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.

Section 112 of the Indian Evidence Act:- Birth during marriage,

conclusive proof of legitimacy.--

The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.

7. To substantiate his contention, the learned counsel for the

petitioner relied upon a decision rendered by the Hon'ble Supreme

Court of India in Goutam Kundu v. State of West Bengal and

another1 wherein it was considered and held that:

2. The appellant herein was married to second respondent on 16th January, 1990 according to Hindu Rites and Customs. They lived together for sometime until second respondent left the matrimonial home to reside with her parents in order to prepare for Higher Secondary Examination which commenced on 5.4.90 and continued upto 10.5.90. In the month of April, 1990 she conceived, on coming to know that she was pregnant, the appellant and the family members did not want her to beget a child. Therefore she was forced to undergo abortion which was refused by the second respondent. During the stay She was meted out cruel treatment both physically and mentally. She came back to the matrimonial home during Durga Pooja in the month of October, 1990. A female child was born on 3.1.91. She filed a petition under section 125 Cr. P.C. before the Learned Chief Judicial Magistrate, Alipore in Miscellaneous Case No. 143 of 1991 both for herself and the child. By an order dated 14.8.91

AIR 1993 Supreme Court 2295

which was passed ex-parte he awarded a sum of Rs.300/- per mensum to the mother and Rs.200/- to the child. Against that order, he moved a revision to the High Court. That revision is pending as 1837 of 1991. Thereafter the petitioner filed a Crl.

Misc. Case No. 143 of 1991 for blood group test of the second respondent and the child.

3. In that proceeding the petitioner herein disputed the paternity of the child and prayed for blood group test of the child to prove that he was not the father of the child. According to him if that could be established he would not be liable to pay maintenance. That application was dismissed on two grounds: (i) there were other methods in the Evidence Act to disprove the paternity; (ii) moreover it is settled law that medical test cannot be conclusive of paternity.

4. Aggrieved by this order, a revision was preferred before the High Court. Dismissing the revision it was held that section 112 of the Evidence Act says where during the continuance of valid marriage if a child is born that is a conclusive proof about the legitimacy. This section would constitute a stumbling block in the way of the petitioner getting his paternity disproved by blood group test.

.....

20. In Bhartiraj v. Sumesh Sachdeo, AIR 1986 Allahabad 259 held as (Paras 28 and 32):-

"Discussing the evidentiary value of blood tests for determining paternity, Rayden on Divorce, (1983) Vol. 1) p. 1054 has this to say:-

"Medical Science is able to analyse the blood of individuals into definite groups: and by examining the blood of a given man and a child to determine whether the man could or could not be the father. Blood tests cannot show positively that any man is father, but they can show positively that a given man could or could not be the father. It is obviously the latter aspect the proves most valuable in determining paternity, that is, the exclusion aspect, for once it is determined that a man could not be the father, he is thereby automatically excluded from considerations of paternity. When a man is not the father of a child, it has been said that there is at least a 70 per cent chance that if blood tests are taken they will show positively he is not the father, and in some cases the chance is even higher: between two given men who have had sexual intercourse with the mother at the time of conception, both of whom undergo blood tests, it has likewise been said that there is a 80 per cent chance that the tests will show that one of them is not the father with the irresistible inference that the other is the father.

The position which emerges on reference to these authoritative texts is that depending on the type of litigation, samples of blood, when subjected to skilled scientific examination, can sometimes supply helpful evidence on various issues, to exclude a particular parentage set up in the case. But the consideration remains that the party asserting the claim to have a child and the rival set of parents put to blood test must establish his right so to do. The court exercises protective jurisdiction on behalf of an infant. In my

considered opinion it would be unjust and not fair either to direct a test for a collateral reason to assist a litigant in his or her claim. The child cannot be allowed to suffer because of his incapacity; the aim is to ensure that he gets his rights. If in a case the court has reason to believe that the application for blood test is of a fishing nature or designed for some ulterior motive, it would be justified in not acceding to such a prayer."

21. The above is the dicta laid down by the various High Courts. In matters of this kind the court must have regard to section 112 of the Evidence Act. This section is based on the well known maxim pater est quem nuptioe demonstrant (he is the father whom the marriage indicates). The presumption of legitimacy is this, that a child born of a married woman is deemed to be legitimate, it throws on the person who is interested in making out the illegitimacy, the whole burden of proving it. The law presumes both that a marriage ceremony is valid and that every person is legitimate. Marriage or affiliation (parentage) may be presumed, the law in general presuming against vice and immorality."

22. It is a rebuttable presumption of law that a child born. during the lawful wedlock is legitimate, and that access occurred between the parents. This presumption can only be displaced by a strong preponderance of evidence, and not by a mere balance of probabilities.

....

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.

27. Examined in the light of the above, we find no difficulty in upholding the impugned order of the High Court, confirming the order of the Addl. Chief Judicial Magistrate, Alipore in rejecting the application for blood test. We find the purpose of the application is nothing more than to avoid payment of maintenance, without making any ground whatever to have recourse to the test. Accordingly the Special Leave Petition will stand dismissed.

8. Per contra, the learned counsel for the 1st respondent

herein submits that the impugned order of the trial Court, dated

25.02.2015 is justified and sustainable, as the lis between the

petitioner herein and the 1st respondent herein is a matrimonial

dispute and it is a case of total denial of the petitioner herein

about his relationship with the 1st respondent herein, denial of

sexual relationship between them, denial of moving together as

husband and wife and denial of the paternity of the child of the

1st respondent herein. In view of the same, the trial Court was

constrained to pass such an order in the maintenance case by

referring to the medical examination/DNA test for the child of

the 1st respondent herein with that of the petitioner herein.

9. In support of the impugned order of the court below, dated

25.02.2015, the learned counsel for the 1st respondent relied

upon a decision of the Hon'ble Supreme Court in Sharda v.

Dharm Pal2, wherein it was considered and held that:

"39. Goutam Kundu (supra) is, therefore, not an authority for the proposition that under no circumstances the Court can direct that blood tests be conducted. It, having regard to the future of the child, has, of course, sounded a note of caution as regard mechanical passing of such order.

76. The matter may be considered from another angle. In all such matrimonial cases where divorce is sought, say on the ground of impotency, schizophrenia etc. normally without there being medical examination, it would be difficult to arrive at a conclusion as to whether the allegation made by his spouse against the other spouses seeking divorce on such a ground, is correct or not. In order to substantiate such allegation, the petitioner would always insist on medical examination. If respondent avoids such medical examination on the ground that it violates his/her right to privacy or for a 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 may render the very grounds on which divorce is permissible nugatory. Therefore, when there is 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 absolute right. What is emphasized is that some limitations on this right have to be imposed and particularly where two competing interests clash. In mattes of aforesaid nature where the legislature has conferred a right upon his spouse to seek

(2003) 4 Supreme Court Cases 493

divorce on such grounds, it would be the right of that spouse which comes in conflict with the so-called right to privacy of the respondent. Thus the Court has to reconcile these competing interests by balancing the interests involved.

77. 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. 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.

79. 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 would be made out Section 114 of the Indian Evidence Act also enables a Court to draw an adverse inference if the party does not produce the relevant evidences in his power an possession.

80. So viewed, the implicit power of a court to direct medical examination of a party to a matrimonial litigation in a case of this nature cannot be held to be violative of one's right of privacy.

81. To sum up, our conclusions are:

1. A matrimonial court has the power to order a person to undergo medical test.

2. Passing of such an order by the court would not be in violation of the right to personal liberty under Article 21 of the Indian Constitution

3. 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. 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."

10. The learned counsel for the 1st respondent also relied upon a

decision of the Hon'ble Supreme Court in Narayan Dutt Tiwari v.

Rohit Shekhar and another3, wherein it is considered and held

that:

1. Having heard the learned Senior Counsel for the petitioner and after perusal of the record, we are not inclined to interfere with the impugned order. The special leave petition is, accordingly, dismissed. However, we still feel that certain protection with regard to confidentiality of the whole matter has to be granted to the petitioner.

(2012) 12 Supreme Court Cases 554

2. We have been informed that presently, the petitioner is residing at Anant Van, FRI Campus, Dehradun, Uttarakhand and is not in a position to move freely on account of his old age. We, therefore, direct that the Civil Surgeon of Government Hospital at Dehradun along with a pathologist, the District Judge of Dehradun and the Joint Registrar, Original Side of the Delhi High Court, would visit the residence of the petitioner on Tuesday, 29-5-2012 at 10.30 a.m. and the pathologist would take the blood sample of the petitioner in confidentiality in their presence for DNA profile test and the said sample shall be sent in a proper seal immediately to the Centre for DNA Fingerprinting and Diagnostics (CDFD), Building 7, Gruhakalpa, 5-4-399/B, Nampally, Hyderabad 500 001 for analysis, by a special messenger of the Delhi High Court who shall not be below the rank of Assistant Registrar. After the test of DNA profile, the Centre for DNA Fingerprinting and Diagnostics (CDFD), Hyderabad will forward the report of the analyst as soon as possible by a special messenger in a sealed cover to the Registrar General of the Delhi High Court who will place the said report before the Court.

3. We direct the petitioner to remain himself present at his residence i.e., Anant Van, FRI Campus, Dehradun, Uttarakhand, on Tuesday, 29-5-2012, positively. The respondents, if they so desire, may remain present either in person or through their representatives and also a representative of the petitioner may remain present at the aforesaid date and time of taking blood sample of the petitioner at his residence.

4. The Secretary General of this Court is directed to forward a copy of this order by fax to the Registrar General of the Delhi High Court, the Registrar General of Uttarakhand at Nainital, the District Judge of Dehradun and the Head of the Centre for DNA Fingerprinting and Diagnostics (CDFD), Hyderabad, forthwith. The District Judge, Dehradun is directed to inform of this order to the Civil Surgeon, Government Hospital, Dehradun immediately so as to take necessary steps for collecting the blood sample of the petitioner.

5. The impugned order of the High Court stands modified to the extent as stated above. We also make it clear that this order would be without prejudice to any of the parties as the civil suit is still pending in the court below.

20. The Apex Court undoubtedly in Sharda (SCC p.523, para 79) has held 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" within the meaning of Section 114 of the Evidence Act would be made out. However, what we are concerned with here is, whether the order of the Court directing such DNA testing is an unenforceable and unimplementable order, the only consequence of voluntary non-compliance whereof is to enable the court to draw adverse inference. We find the aspect of enforceability/implementability of the order for medical examination to have not been the subject matter of Sharda or the other judgments, cited by the counsel for Respondent 1 before us also.

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:

"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. 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 there 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 and T.(A Child)(DNA Tests: Paternity), In re. The Judge 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 the 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 the presumptions and inferences. It seems to me obvious that all the Lord Hoson 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"

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. ...

56. Recently in Maria Margarida Sequeira Fernandes v. Erasmo Jack de Sequeira, it was reiterated that the truth is the guiding star and the quest in the judicial process and the voyage of trial. The trend world over of full disclosure by the parties and deployment of powers to ensure that the scope of factual controversy is minimised was noticed. We are therefore of the opinion that adverse inference from non- compliance cannot be a substitute to the enforceability of a direction for DNA testing. The valuable right of the appellant under the said direction, to prove his paternity through such DNA testing cannot be taken away by asking the appellant to be satisfied with the comparatively weak "adverse inference".

57. The impugned judgment refers extensively to the law in this regard in other countries. We are however of the opinion that once the Supreme Court in the judgments supra has held the civil court entitled to issue such a direction, the law in other jurisdictions pales into insignificance.

58. We, therefore, allow this appeal and set aside the order dated 23-9-2011. We further clarify that the observations/findings therein on any of the aspects which we find to be unnecessary and for which reason we have not gone into the challenge thereto shall not be binding at a subsequent stage of the proceedings.

59. We further deem it necessary to now clarify the procedure to be followed for compliance with the direction contained in the order dated 23-12-2010. Upon Respondent 1 continuing to defy the order, the Single Judge shall be entitled to take police assistance and use of reasonable force for compliance therewith. Respondent 1 to also pay coasts of this appeal quantified at Rs.25,000 to the appellant.

11. For the purpose of persuasive value, the learned counsel for the

1st respondent also relied upon another decision of the High Court of

Chattisgarh in the matter of Rameshwari Bai; Prakash Kumar;

Harendra Kumar v. Ishwar Lal Sahu4, wherein it was considered

and held:

"In the context of the aforesaid principle, in the instant case, when the prayer made by the minor children are

2017(4) CgLJ 258

examined, it would show that an application was made initially but the same was not allowed as the non-applicant did not agree for same. In the second application, it was stated that earlier application for rejection of DNA test was not informed by the then amicus curie. The Court can not ignore the fact that the claimants herein are minors who claims their paternity to the non-applicant as father. If the wishes of the non-applicant are upheld then in such case the Court would be helpless to answer to the question of minors. The claim for maintenance is presently pending on behalf of minors. The non-applicant appears to avoid the claim has disowned the relations. In Indian social back ground, when a lady has claimed that she begotten the children out of the relations with that of non- applicant, the same cannot be shelved on a mere denial. In the facts of the case if the application for DNA test if is refused then it can be very well assumed that the paternity of the child cannot be established at any point of time in near future. It is also the right of the minor child to know about his parents specially when where specific averments made against a person that he is the father. Therefore, simply by making a submission that non-applicant do not wish to get himself examined for DNA test cannot be appreciated. The Supreme Court in case of Sharda v. Dharmpal also held that the final wish of the father cannot be the end point as the proposition of case of Goutam Kundu v. State of W.B is not an authority. Under the circumstances, the Court can direct that blood test to be conducted. It is having regard to the future of the child, if it is in the interest of the child certain prayer can always be allowed. Further, as has been held in case of Narayan Dutt Tiwari & Dipanwita Roy, the Supreme Court has observed that in case of eminent need, the Court can always direct for test for DNA.

14. Taking into such principles and after translating them into the present circumstances of this case, considering the future of the child, the question of paternity cannot be left in infinity and uncertainty can be allowed to loom large for all the time to come for the children. Considering the facts and circumstances of the case, the Court is of the opinion that the DNA test of the respondent cannot be refused when it is claimed by the minor children as under the facts it would be of eminent need.

15. In view of the above, the order dated 06.08.2014 is set aside and accordingly, the application to conduct DNA test of non-applicant is allowed. Consequently, the criminal revision stands allowed."

12. As stated supra, in the case of Goutam Kundu (1st cited), there

is no dispute with regard to matrimonial relationship between the

appellant therein and the 2nd respondent therein, as their marriage

took place as per Hindu rites and customs and they lived together for

some time as husband and wife, thereafter differences arose leading

to separation and child born out of the said wedlock came in dispute

with regard to the paternity of the child, as the husband denied the

relationship with that of the child and wife filed maintenance case for

herself and the child before the trial court therein and sought for

referring to DNA test for the purpose of paternity of the child with

that of her husband by filing a miscellaneous application therein

which was opposed by the husband therein and in that context the

above said judgment was pronounced by the Hon'ble Apex Court.

Hence, it has no application for the facts of the present case on hand.

However, the above said judgment (1st cited) was also considered

subsequently by the Hon'ble Supreme Court of India in Sharda v.

Dharm Pal (2nd cited) and held as above in para 81 of the said

judgment (2nd cited). The above said two judgments were also

considered by the Hon'ble Supreme Court of India in Narayan Dutt

Tiwari v. Rohit Shekhar and another (3rd cited) and necessary

directions were given in the said Judgment referring the concerned

parties for DNA test to determine the paternity of the son therein.

13. Following the above said judgments of the Hon'ble Supreme

Court of India and considering the judgment of the Hon'ble High

Court of Chattisgarh, this Court comes to a conclusion that the trial

court has got the power to order a person to undergo a medical

test/DNA test as ordered, dated 25.02.2015 in the interest of the

child, who is arrayed as 2nd petitioner in M.C.No.46 of 2011on the file

of the II Additional Judicial I Class Magistrate, Tanuku and passing

of such an order is not violative of Article 21 of the Constitution of

India for the petitioner herein in the given set of facts and

circumstances as pleaded by the 1st respondent herein.

14. Therefore, the order of the II Additional Judicial Magistrate of I

Class, Tanuku, dated 25.02.2015 is upheld herewith for the DNA test

to collect the blood samples of the child of the 1st respondent herein/

the 2nd petitioner in M.C.No.46 of 2011on the file of the II Additional

Judicial I Class Magistrate, Tanuku along with the collection of the

blood samples of the petitioner herein to determine the paternity of

the child. The whole process shall be completed and report shall be

submitted by the concerned laboratories to the court below in a

sealed cover within two (2) months from the date of receipt of this

order by the trial court.

Accordingly, the Criminal Petition is dismissed. There shall be

no order as to costs of the Criminal Petition.

As a sequel, miscellaneous petitions pending, if any, in the

Criminal Petition shall stand closed.

_______________________________ JUSTICE B.KRISHNA MOHAN 20.01.2021 Mp

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI **** CRIMINAL PETITION No.2376 of 2015

Between:

Kadali Durgarao                                  ---Petitioner

            And
Kadali Surya Kumari and another                ----Respondents


DATE OF ORDER PRONOUNCED                   :   20.01.2021



SUBMITTED FOR APPROVAL:


       THE HON'BLE SRI JUSTICE B.KRISHNA MOHAN


1. Whether Reporters of Local Newspapers
  may be allowed to see the order?                      Yes/No

2. Whether the copy of order may be
  marked to Law Reporters/Journals?                         Yes
3. Whether His Lordship wish to
  see the fair copy of the order?                       Yes/No




                                      _____________________________
                                      JUSTICE B.KRISHNA MOHAN





          THE HON'BLE SRI JUSTICE B.KRISHNA MOHAN

             +CRIMINAL PETITION No.2376 OF 2015

% 21.01.2021

# Between:
Kadali Durgarao                                       ---Petitioner

             And
Kadali Surya Kumari and another                   ----Respondents


! Counsel for the Petitioner      : Sri A.Hari Prasad Reddy

^ Counsel for the Respondent      : K.V.L.Narasimharao

< Gist:

> Head Note:
? Cases referred:


This court made the following :