Delhi High Court
Yogender Kumar vs Mamta & Ors. on 11 February, 2016
Author: Suresh Kait
$~7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: 11th February, 2016
+ CRL.M.C. 399/2013
YOGENDER KUMAR ..... Petitioner
Represented by: Mr. Amreek Singh and
Mr. R.K. Aggarwal, Advs.
versus
MAMTA & ORS. ..... Respondents
Represented by: Mr. Vaibhav Manu
Srivastava, Advs. for R1.
Mr. Arun Kr. Sharma, APP for State.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (Oral)
Crl. M.A.2032/2015 (for Restoration)
1. Vide the instant application, applicant seeks recalling of order
dated 20.01.2015, whereby the petition was dismissed for non-
prosecution.
2. Keeping in view the averments made in the instant application,
same is allowed.
3. Consequently, the petition is restored to its original number.
+ CRL.M.C. 399/2013
1. With the consent of the parties, the present petition is taken up
for final disposal.
2. Vide the present petition, petitioner seeks directions thereby
setting aside the orders dated 31.07.2012 passed by ld. MM (Mahila
Court), North-East in Complaint Case No. 477/2006 filed under
Section 125 Cr.P.C. and dated 21.12.2012 passed in Revision Petition
no. 47/12.
3. Respondent no.1 has filed a Petition under Section 125 Cr.P.C.
for her maintenance and the maintenance of her minor daughter. In
her complaint, respondent no.1 stated that she got married to the
petitioner in peculiar circumstances, which took place on 05.07.2000.
The marriage of the first husband of the respondent no.1 namely
Dharmender, the elder brother of the petitioner was fixed with some
other girl on 22.04.2000. However, the Baarat was returned by the
girl's family for the reason that Dharmender suffered fits at the time
of marriage. Since, the elder sister of the respondent no.1 namely
Nirmala was already married to another elder brother of the petitioner
namely Dinesh, thus under these circumstances, the family of the
petitioner requested the father of respondent no.1 to solemnize her
marriage with the Dharmender in order to save disgrace and loss of
reputation. At the time of marriage, it was agreed between the parties
that in case Dharmender continued to suffer from fits/insane intervals,
respondent no.1 would be married to petitioner Yogender.
Accordingly, marriage of respondent no.1 was solemnized with
Dharmender on 23.04.2000 itself. However, since the condition of
Dharmender did not improve, as agreed between both the sides in the
presence of their relatives, the second marriage of the respondent no.1
was solemnized with the petitioner on 05.07.2000. They lived together
as husband and wife. The marriage was consummated and respondent
no.1 conceived respondent no. 2 baby Priyadarshini, who was born on
14.10.2004. During this period, petitioner also solemnized his second
marriage with one Sadhna on 19.04.2004 when the respondent no. 1
was about 2-3 months pregnant.
4. Petitioner filed his reply to the aforesaid petition thereby
disputing the paternity of the child.
5. It is pertinent to mention here that on 02.02.2010, statement of
the petitioner was recorded and in cross-examination, he denied to the
suggestion that respondent no.2 baby Priyadarshini belongs to him
and he is ready to conduct DNA Test. The evidence of both the sides
was concluded by recording the statement of the petitioner.
Thereafter, respondent no.1 moved an application before the Trial
Court for conducting a DNA Test on the same issue. Accordingly,
vide order dated 31.07.2012, the said application was allowed and
pursuant to the directions passed by the ld. Trial Court DNA has been
conducted vide report dated 14.05.2013, whereby respondent no. 2
was found to be the biological daughter of the petitioner and
respondent no.1.
6. Being aggrieved from the order dated 31.07.2012, petitioner
filed a Revision Petition being no. 47/12, which was dismissed vide
order dated 21.12.2012. Being aggrieved again, petitioner filed the
present petition.
7. Ld. Counsel appearing on behalf of the petitioner submits that
vide order dated 01.03.2013, execution of the impugned orders dated
31.07.2012 and 21.12.2012 were stayed by this Court. Despite, DNA
proceedings were carried out by the concerned Authority, which
amounts to contempt of Court. Moreover, the evidence in the
complaint filed under Section 125 Cr.P.C. has been concluded and the
matter was listed for final argument. Thus, at that stage, ld. Trial
Court had no power to direct for conducting DNA Test without taking
reply of the application from the petitioner.
8. He further submits that respondent no.1 had not taken any
permission from the Court prior to filing the application for
conducting the DNA Test. Thus, the application was not
maintainable. Ld. counsel has informed that evidence regarding the
genuineness of the DNA report, which is to be proved by the DNA
Authority, is going on.
9. It is not in dispute that vide order dated 01.03.2013 this Court
stayed the execution of the impugned orders till the next date of
hearing and the said order was continued up to 08.05.2013. Order
sheets reveal that thereafter no stay was granted by this Court.
10. Be that as it may, after recording the statement of the petitioner
as noted above, when he disputed the paternity of respondent no.2,
and he himself came forward to undergo a DNA test. Thereafter only,
respondent no. 1 filed an application for conducting DNA of her, her
daughter namely Priyadarshini and the petitioner. Accordingly, the
Trial Court allowed the application of the respondent no. 1.
11. The issue raised by the petitioner before the trial court was that
he is not related to respondent no.2. Therefore, the petition under
Section 125 Cr.P.C. was not maintainable.
12. As per the DNA report which is on record, it is established that
respondent no.2 is the biological daughter of the petitioner and thus on
the submissions made by the counsel for the respondents to this effect
on 20.01.2015 this Court recorded that the present petition has
become infructuous.
13. Keeping in view the facts recorded above and that after proving
DNA report being genuine and hearing arguments on the petition
under Section 125 Cr. P. C., the Trial Court has to pass a final order.
Therefore, I do not find any merit in the present petition.
14. The petition is accordingly dismissed with no order as to costs.
Crl. M.A. 1289/2013
Dismissed as infructuous.
SURESH KAIT, J
FEBRUARY 11, 2016
jg
