Madhya Pradesh High Court

Suraj Singh Tomar vs Smt. Meenakshi Tomar on 7 June, 2021

Author: Sushrut Arvind Dharmadhikari

                     1                     M.Cr.C.No.39112/2020

         HIGH COURT OF MADHYA PRADESH
               BENCH AT GWALIOR

         SB: Hon.Shri Justice S.A.Dharmadhikari

                      M.Cr.C.No.39112/2020

                         Suraj Singh Tomar
                                  Vs.
               Smt. Meenakshi Tomar and another
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Shri Ankit Saxena, learned counsel for the petitioner.
Shri Sankalp Sharma, learned counsel for the respondents.
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                             ORDER

07/06/2021

This petition under Section 482 of Criminal Procedure

Code has been filed questioning legality, validity and

propriety of the order dt.11.02.2020 passed by the

Additional Principal Judge, Family Court, Gwalior in Case

No.151/2019 Mu.Fau. (Criminal), whereby the application

filed by the petitioner/non-applicant under Section 45 of the

Indian Evidence Act, 1872 for performing the DNA test has

been rejected.

2. The brief facts leading to filing of this case are that

the respondents No.1 and 2 had filed an application under

Section 125 of Cr.P.C. before the Family Court. During the

pendency of the application, the petitioner filed an

application under Section 45 of the Indian Evidence Act

alleging that from the date of marriage, the petitioner and

the respondent No.1 were not in any kind of physical

relationship but despite that the respondent No.1 gave birth

to the respondent No.2. The respondent No.1 herself has

admitted that the respondent No.2 is not the son of the

petitioner. Respondent No.1 is having illicit relationship

with some other person and therefore the respondent No.2

being the illicit child can not be granted maintenance under

Section 125 of the Cr.P.C. In such circumstances, DNA test

of respondent No.2 and the petitioner may be conducted by

the authorized Medical Board.

3. Shri Ankit Saxena, learned counsel for the petitioner

submitted that the order passed by the learned Family Court

is totally illegal, arbitrary and against the settled position of

law, therefore, the impugned order deserves to be set aside.

Learned family Court also did not consider the fact that prior

to filing of the case under Section 125 of Cr.P.C. by the

respondent No.1, the petitioner had filed an application

under Section 13 of the Hindu Marriage Act on the ground

of illicit relationship, cruelty and adultery but this fact has

been overlooked by the learned Family Court.

4. On the other hand, Shri Sankalp Sharma, learned

counsel for the respondents submitted that the learned

Family Court has rightly rejected the application under

Section 45 of the Indian Evidence Act inasmuch as the DNA

report can not be ordered at this preliminary stage and in the

proceedings under Section 125 of Cr.P.C. He further

submitted that the proceedings under Section 125 of Cr.P.C.

are summary in nature and does not contemplate detailed

preliminary inquiry before an order of grant of maintenance

is passed. His another bone of contention is that Section 112

of the Indian Evidence Act raises presumption in favour of

the child born during legitimate marriage. The proceedings

under Section 125 of Cr.P.C. being summary in nature and

Section 112 of the Evidence Act raising a presumption in

favour of legitimacy, difference has to be drawn between the

divorce proceedings and Section 125 of Cr.P.C. proceedings

where in the divorce proceedings the court would be more

inclined to direct a DNA test as in divorce, adultery is a

ground for divorce while in Section 125 Cr.P.C.

proceedings, the burden is on the husband to first rebut the

presumption of Section 112 of the Evidence Act. In support

of his contentions, he has placed reliance in the case of

Lallu Lal Patel Vs. Anar Kali and others reported in ILR

(2011) MP 1605, Nagendrappa Natikar Vs. Neelamma

reported in AIR 2013 SC 1541, Manik Chandra Ankure

Vs. State of West Bengal and others reported in 2004 (1)

Crimes 547 (Cal.) and Badri Prasad Jharia Vs. Vatsalya

Zharia reported in 2020 (Cri.L.J.) 3025 (M.P.). Learned

counsel further submitted that the Family Court would resort

to the proceeding under Section 125 of Cr.P.C. seeking DNA

report only if other evidence brought on record by the

parties are not conclusive and sufficient. The present case is

at the very initial stage of its proceedings, therefore, it

would not be proper to direct for DNA test.

5. Heard learned counsel for the parties.

6. In the case of Banarsi Dass v. Teeku Dutta (Mrs.)

and Anr. reported in 2005 (4) SCC 449, Hon'ble Apex

Court has held as under :

"Under Section 112 and 4 of Evidence Act, the conclusiveness of presumption under Section 112 cannot be rebutted by DNA test. The proof of non- access between the parties to marriage during the relevant period is the only way to rebut that presumption and DNA test is not to be directed as a matter of routine, it is to be directed only in deserving cases."

7. In the case of Nagendrappa Natikar (supra),

Hon'ble Apex Court, has held as under :

"10. Section 125 Code of Criminal Procedure is a piece of social legislation which provides for a summary and speedy relief by way of maintenance to a wife who is unable to maintain herself and her children. Section 125 is not intended to provide for a full and final determination of the status and personal rights of parties, which is in the nature of a civil proceeding, though are governed by the provisions of the Code of Criminal Procedure and the order made Under Section 125 Code of Criminal Procedure is tentative and is subject to final determination of the rights in a civil court."

8. In the case of Badri Prasad Jharia Vs. Vatsalya

Jharia (supra), this Court has held as under :

"23. The position of law is different in the case of Section 13 of Hindu Marriage Act and the application filed under Section 125 of Cr.P.C. "Adultery" is a ground for "Divorce" under Section of 13 of Hindu Marriage Act. For proving adultery, the DNA test will definitely be useful as per the established law discussed above. If the wife is refusing for DNA test, then her refusal may be considered as a ground for drawing adverse inference against her. But the position under Section 125 of Cr.P.C. is different. Section 125 (1)(b) of Cr.P.C. provides that the person is also liable to grant the maintenance to his illegitimate minor child. The section says-

"125-Order for maintenance of wives, children and parents-

(1) If any person having sufficient means neglects or refuses to maintain-

(a) ... .......

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

24. In the case filed under Section 125 of Cr.P.C. the DNA test is not mandatory in each and every case. For proving paternity under Section 125 of Cr.P.C., it is sufficient to proved that the child is the legitimate

child of the husband if:-

(i) Relationship of husband and wife is in existence,

(ii) During their relationship the child was born.

(iii) If the marriage between the parties has not been dissolved.

(iv) The birth of the child having taken place during the subsistence of valid marriage and the husband having access to his wife.

In this case the application was dismissed by the Court and the order was not challenged by the husband. Wife did not refuse in this case and her refusal in Hindu Marriage Act case cannot be considered in this case for drawing presumption against her."

9. In the case of Manik Chandra Ankure (supra), High

Court of Calcutta has held as under :

"6. I have heard the learned Advocates of the respective parties. I have also gone through the impugned order passed by the learned Additional Sessions Judge as also the order passed by the learned Magistrate. In my considered view, the impugned order passed by the learned Additional Sessions Judge does not suffer from any illegality. As I have already pointed out earlier Section 125, Cr.P.C. provides a swift remedy against any person who despite means neglects or refuses to maintain his wife and other dependents. The primary object of the section is to prevent starvation and vagrancy. Section 125, Cr.P.C. provides a summary procedure. The findings are also not final and the parties can agitate their rights in the Civil Court. In a proceeding under Section 125, Cr.P.C., the Court would not be justified in suspecting the chastity of the wife merely because the husband casts aspersion on her chastity. If the husband wants to challenge the paternity of the child he can always file a civil suit in appropriate Civil Court for such declaration. In a proceeding

under Section 125, Cr.P.C. the learned Magistrate was not justified in directing D.N.A. test of the child. The learned Additional Sessions Judge was very much justified in setting aside such order of the learned Magistrate. In my considered view, the order passed by the Additional learned Sessions Judge does not suffer from any illegality and I do not find any reason to interfere with the same."

10. Learned Family Court has rejected the application

under Section 45 of the Evidence Act relying on the

judgment passed in the case of Sunil Eknath Vs. Leelavati

reported in AIR 2006 Bom 140, in which it is held that the

parties may be directed to first produce the evidence and if it

is found that it is difficult to come to the conclusion, then

only the DNA test may be ordered.

11. In view of the aforesaid facts and circumstances,

while analyzing the factual and legal background of this

case as also while considering the judgments of the Courts

relied upon by the parties and the reasons assigned by the

learned Family court for rejection of the application, this