HIGH COURT FOR THE STATE OF TELANGANA
AT HYDERABAD
*****
Criminal Petition No.10971 OF 2022
Between:
Mohammed Munawar @ M.Manohar ... Petitioner
And
The State of Telangana,
rep. by its Public Prosecutor,
High Court for the State of Telangana,
Hyderabad & others
... Respondents
DATE OF JUDGMENT PRONOUNCED: 04.01.2023
Submitted for approval.
THE HON'BLE SRI JUSTICE K.SURENDER
1 Whether Reporters of Local
newspapers may be allowed to see Yes/No
the Judgments?
2 Whether the copies of judgment
may be marked to Law Yes/No
Reporters/Journals
3 Whether Their Ladyship/Lordship
wish to see the fair copy of the Yes/No
Judgment?
__________________
K.SURENDER, J
2
* THE HON'BLE SRI JUSTICE K. SURENDER
+ CRL.P. No. 10971 of 2022
% Dated 04.01.2023
# Mohammed Munawar @ M.Manohar ... Petitioner
And
$ The State of Telangana,
rep. by its Public Prosecutor,
High Court for the State of Telangana,
Hyderabad & others
... Respondents
! Counsel for the Petitioners: Sri. E.Poornachander Rao
^ Counsel for the Respondents: Sri S.Sudershan
Additional Public Prosecutor for R1
>HEAD NOTE:
? Cases referred
1
Criminal Appeal No.1569 of 2022, dated 15.09.2022
2 (2022) 1 Supreme Court Cases 20
3 2014 (2) ALD 131
4
AIR 2010 SC 2851
5 2022 SCC OnLine SC 1047
3
HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL PETITION No.10971 OF 2022
ORDER:
1. The petitioner(Husband) is questioning the orders of the
learned Additional Family Court Judge dated 29.11.2022 in
Crl.M.P.No.44 of 2020 in M.C.No.243 of 2017 directing the
him to undergo DNA test to determine whether he is the
father of the minor namely Mohammed Rayyam Ahmed/3rd
respondent(Son) herein. The said petition was filed by the 2nd
respondent herein(Wife) before the Family Court. For
convenience the parties will be referred as "Husband', 'Wife'
and "Son'.
2. According to wife of the petitioner, after marriage they
were blessed with the child on 02.11.2013. On the ground of
continued harassment, an application was filed under Section
125 of Cr.P.C by the wife. In the counter affidavit filed by the
husband, he denied the marital relationship and also stated
that he is not the biological father of the child. For the said
reason, to determine the paternity of the child, the wife filed
the petition under Section 45 r/w Section 112 of the Indian 4
Evidence Act praying the Court to direct DNA testing to
determine the paternity of the child.
3. Learned counsel appearing for the petitioner would
submit that as a matter of routine, the courts cannot direct
parties to undergo DNA testing. Further no foundation is laid
or facts are narrated by the Court to order such test. In
support of his contention, he relied on the judgment of the
Hon'ble Supreme Court in the case of Inayath Ali v. State of
Telangana1. In the said case, the trial Court while trying a
case under Sections 498-A, 323, 354, 506 and 509 of IPC,
directed DNA testing to determine the paternity of the two
minor daughters. In revision, this court held that the orders of
the learned trial Court was proper and upheld the said orders.
When the matter was carried to the Hon'ble Supreme Court,
the Hon'ble Supreme Court held that when the paternity of the
children was not in question in the said proceedings,
mechanically directing the petitioner therein to subject himself
to DNA testing does not arise.
1 Criminal Appeal No.1569 of 2022, dated 15.09.2022 5
4. Counsel also relied upon the judgment of Hon'ble
Supreme Court in the case of In the case of Ashok Kumar v.
Raj Gupta2, Davu Gopal Lunani v. Siva Gopal Lunani3 and
also in the case of Bhabani Prasad Jena v. Convenor
Secretary, Orissa State Commission for Women and
others4.
5. In the present case, the petitioner is denying the
marriage itself and also that he is the biological father of the
'son'. Both the wife and son are claiming maintenance from
the petitioner herein. While granting maintenance, the
competent court has to look into the relationship of spouse
and also the relationship of the children. Section 125 of Cr.P.C
enables the orders for maintenance of wife, children and
parents. The maintenance can be ordered if the wife is unable
to maintain herself or children or parents, subject to proof of
the necessity to grant maintenance.
2 (2022) 1 Supreme Court Cases 20 3 2014 (2) ALD 131 4 AIR 2010 SC 2851 6
6. The Hon'ble Supreme Court in the case of Priyanka
Janardhan Patil v. Janardhan Raghunath Patil5 has refused
to interfere with the order of direction by the lower Court to
determine the paternity by DNA testing. The Hon'ble Supreme
Court held as follows:
"4. Be that as it may, to resolve the dispute once and for all, this Court refrains from interfering with the direction for paternity/DNA Test. The paternity/DNA test may be conducted at the All India Institute of Medical Sciences, New Delhi, for which the petitioner and the respondent shall give samples as required. It is made absolutely clear that if on testing, it is found that the allegations are based on suspicion and the respondent is, in fact, the father of the child, the respondent shall pay compensation of Rs.30,00,000/- (Rupees thirty lakhs only) to the petitioner, in addition to usual maintenance and other costs and charges as the respondent may be directed to pay for the petitioner and for the child."
7. In the judgment relied by the learned counsel for the
petitioner in the case of Bhabani Prasad Jena (supra), it was
held that when there is an apparent conflict between the right
to privacy of a person not to submit himself forcibly to medical
examination and duty of the Court to reach the truth, the
Court must exercise its discretion only after balancing and
5 2022 SCC OnLine SC 1047 7
keeping in view of the interests of the parties. Unless the DNA
test is imperative, no such orders can be granted.
8. In the case of Inayath Ali v. State of Telangana (supra),
since the issue was not paternity, the Hon'ble Supreme Court
interfered and directed that there was no necessity of DNA
testing. In the case of Bhabani Prasad Jena (supra), the State
Commission for Woman constituted under Section 3 of the
Orissa (State) Commission for Women Act 1993 as found by
the Hon'ble Supreme Court, the Commission did not have any
authority or competency to order DNA testing. Accordingly,
the orders were disallowed. However, the Hon'ble Supreme
Court observed that it will not preclude the claim for
maintenance.
9. In the present case, two applications have been filed
under DVC Act and the Maintenance Case by 'Wife' and 'Son'.
In DVC No.21 of 2017, similar petition was filed for conducting
DNA test, which was allowed. However, this Court in
CRLP.No.4695 of 2018 stayed the orders of the DNA testing for
a period of two months and thereafter, the said stay was not 8
extended. The family Court having considered all the facts of
both the cases filed for maintenance, found that the
application for determining paternity can be allowed.
10. Since the DNA testing would resolve the issues involved
in both the Maintenance Case and the DVC proceedings, I do
not find any illegality in the order of the learned Family Court
Judge in ordering DNA testing to determine the paternity.
11. Though the Courts shall not as a matter of course direct
paternity test, in the present facts, the 'wife' has filed
documents to substantiate that there was a marriage and
thereafter 'Son' was born. The ground raised by the learned
counsel for the petitioner is that there are no reasons given in
the order that there is a necessity to conduct DNA testing is
not correct. Learned Family Court Judge has given adequate
reasons and also after discussing the back ground of the
cases, has ordered the petitioner herein to undergo DNA
testing.
9
12. Courts should be cautions that a child could be
bastardized on the basis of result of DNA testing and any
refusal by the husband to submit himself to medical
examination, the Court will be entitled to draw an adverse
inference against husband and proceed with the case on the
presumption that the husband is the biological father of the
child. However in the present facts of the case, I do not find
any illegality in the impugned order.
13. In the result, the Criminal Petition is dismissed. As a
sequel thereto, miscellaneous applications, if any, shall stand
closed.
__________________ K.SURENDER, J Date: 04.01.2023 Note: L.R.Copy to be marked kvs 10
HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL PETITION No.10971 OF 2022
Date: 04.01.2023.
kvs
