Bombay High Court
Smt. Satyaprabha W/O Revanath ... vs Revalnath S/O Vitthalrao Paratte on 8 August, 2017
Bench: P.N. Deshmukh
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL WRIT PETITION NO. 948 of 2014.
PETITIONERS: 1. Smt.Satyaprabha w/o Revalnath Paratte,
aged about 44 years, Occu: Labour Work,
2. Ku.Heena d/o Revalnath Paratte,
aged about 19 years, occu: Student,
Both R/o C/o. Shri Dhakite, Plot No.44,
Laxminarayan Colony, Kharbi Layout,
Nagpur.
: VERSUS :
RESPONDENT: Revalnath Vitthalrao Paratte,
aged about 54 years, Occu: Service,
R/o. O/o. Bank of Mysoore, Raisen
Road, Near Apsara Talkies, Bhopal
Branch, Bhopal.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
Mr.S.K.Verma, Advocate for the petitioners.
Mr.S.B.Bangde, Advocate for the respondent.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
CORAM: P.N.DESHMUKH, J.
DATED : 8th AUGUST, 2017.
ORAL JUDGMENT :
1. This petition is filed by petitioner no.1 - wife,
challenging impugned order dated 17th September, 2014 passed
by learned Trial Court in Misc.Criminal Application No.2581 of
2012, thereby rejecting application filed by petitioner No.1 to
direct respondent - husband to undergo DNA Test to establish his
relations as of biological father of petitioner no.2 - daughter.
2. Petitioner has filed Misc. Criminal Application No.2581
of 2012 before the learned Trial Court under Sections 12, 18, 19,
20, 22 and 23 of Protection of Woman from Domestic Violence
Act, 2005 (hereafter referred as Act of 2005) seeking
maintenance, compensation, rent, etc. along with costs of the
litigation and in the said application petitioner wife had filed
application seeking direction to respondent- husband as aforesaid.
By impugned order, the learned trial Court holding that in law
petitioner is under obligation firstly to establish her domestic
relations with respondent - husband by adducing evidence and it
is only after she succeeds in establishing above relations,
necessary directions can be issued as prayed for, to the
respondent to undergo DNA Test. From the impugned order
though further it appears that the learned trial Court had also
held that result of DNA Test is not the conclusive proof of
evidence of domestic relationship, this observation, to some
extent, though appears to be correct, at this stage same is not
relevant to be considered in view of the fact that the issue of
maintenance to petitioner no.2 daughter would arise only if it is
established that there exists domestic relationship between
petitioner-wife and respondent-husband. Only in that case
further necessity would then arise to direct respondent to undergo
DNA Test and if the result of said Test is positive, necessary
directions as sought for in the complaint can be issued by the
competent Court, as such observations of the learned Trial Court
in the order impugned thus, at this stage, do not necessarily need
to be commented upon. In the circumstances, without further
probing into this aspect of impugned order, petitioner is required
to establish domestic relationship with respondent which proof
appears to be necessary to be established before any judgment in
the complaint can be passed. In other words, for the purpose of
grant of reliefs sought in the complaint, it is necessary for
complainant wife to first establish existence of her domestic
relationship with respondent by adducing direct and indirect
evidence before the learned trial Court.
3. It is found that petitioner no.1 has filed complaint
invoking provisions of Act of 2005 after a lapse of period of 15
years from the alleged demotic violence caused to her by
respondent. On an objection raised for filing a belated complaint
after lapse of 15 years, Rule was issued by this Court and the
proceedings were stayed, in view of the fact that, the Hon'ble
Apex Court had granted leave, against judgment of this Court in
the case of Kishor Shrirampant Kale ..vs.. Shalinmi w/o Kishor
Kale and ors. reported in [2010(3)Mh.L.J. (Cri.) 529] where
this Court has taken a view that as complaint was filed after 15
years of separation, wife was not entitled to relief under the Act of
2005 in view of the date of enforcement of said Act. Learned
counsel for the parties, however, have now made a categorical
statement that Hon'ble Apex Court in the case of Shalini ..vs..
Kishor and ors. reported in AIR 2015SC 2605 and has held that
even if a complaint is made after 15 years of couple residing
separately i.e. much prior to coming into force Act of 2005 that
by itself, is no ground for dismissal of complaint. In view of above
stated pronouncement thus, the objection raised by respondent
about maintainability of complaint can now be duly dealt with
accordingly.
4. Learned counsel for the parties had contended that
petitioner had examined three witnesses in support of her
complaint while respondent had examined himself, however,
when the proceedings were at the stage of arguments, in view of
orders passed by this Court on 23rd June, 2015 further
proceedings are stayed.
5. Having considered facts as aforesaid, thus apparently
there appears no reason to interfere with the impugned order as
learned trial Court had rightly held that for establishing
petitioner no.2's entitlement for maintenance, etc., petitioner has
to first establish existence of domestic relationship between her
and respondent and then direction for undergoing DNA test can
be issued, if required. In the circumstances, petition can be partly
allowed by issuing directions to the learned trial Court as follow -
(i) Stay to proceeding being MCA No.2581 of 2012 stands
vacated.
(ii) Learned trial Court after hearing learned counsel of
both sides and on considering evidence on record, shall give
finding if petitioner - wife has established domestic relationship
between her and respondent - husband by duly considering
provisions of Domestic Violence Act, 2005, particularly keeping in
view of definition of "aggrieved person" as defined in Section 2(a)
and of "Domestic relationship" as defined in Section (f) of the Act
of 2005.
(iii) In the event, the learned trial Court holds that there
exists such domestic relationship, petitioner shall be at liberty to
file fresh application seeking directions to respondent to undergo
DNA test to further consider reliefs sought in the complaint.
(iv) In view of the fact, that stay to the proceedings was in
force from 23rd June, 2015, learned trial Judge to decide the
complaint expeditiously, preferably within six months from the
date of receipt of Writ of this Court.
Petition is accordingly allowed. Rule is made absolute
in the above terms with no order as to costs.
JUDGE.
chute
