Uttarakhand High Court

Prince Thakur vs State Of Uttarakhand on 27 February, 2024

Author: Ravindra Maithani

Bench: Ravindra Maithani

     HIGH COURT OF UTTARAKHAND AT NAINITAL

              Criminal Revision No.127 of 2024

Prince Thakur                                  ...Revisionist

                             Versus

State of Uttarakhand                          ...Respondent

Present:-
            Mr. Shankar Agarwal, Advocate for the revisionist
            through video conferencing.
            Mr. M.A. Khan, A.G.A. for the State.

Hon'ble Ravindra Maithani, J. (Oral)

The challenge in this revision is made to the order

dated 30.01.2024, passed in Misc. Criminal Case No. 107 of

2023, by the court of Judge, Family Court, Vikas Nagar,

District Dehradun ("the case"). By the impugned order, an

application filed by the respondent no.2 has been allowed and

the revisionist has been directed to undergo Deoxyribonucleic

Acid ("DNA") examination.

2. Heard learned counsel for the parties and perused

the record.

3. Facts necessary to appreciate the controversy,

briefly stated, are as follows:-

The respondent nos. 2 and 3 filed an application

seeking maintenance from the revisionist. According to the

respondent no.2, she was earlier married to one Abid and out

of that wedlock, she had given birth to two children. But,

Abid had divorced her in the year 2010 and had taken both

the children with him. At that stage of life, according to

respondent no.2, she started working, where she met

Virender Singh, who under the assurance of marriage,

physically exploited her and thereafter left her. The

respondent no.2 writes that her agony did not end here.

Thereafter, the revisionist met her, promised to marry her,

established physical relations and when the respondent no.2

got pregnant, on 30.09.2022 the revisionist solemnized

marriage with her. On 28.11.2022, the respondent no.2 gave

birth to two children, out of which, one survived, but one

could not. After making detailed revelation, the respondent

no.2 claims that she had no source to maintain herself,

whereas the revisionist is a man of means.

4. The revisionist did file objection on the application

under Section 125 of the Code of Criminal Procedure, 1973,

denying all the allegations. He has also denied that Abid had

ever divorced the respondent no.2. According to him, he was

not the father of the child. Abid is father of the child of the

respondent no.2, who was born on 28.11.2022. According to

the revisionist, in the hospital records, in the discharge slip,

the name of the father of the child is recorded as Abid.

5. In the case an application for interim maintenance

was filed by the respondent no. 2, which was rejected on

21.08.2023. In that order, the court recorded that it appears

that Abid was the father of the child born on 28.11.2022 by

the respondent no.2. It appears that at this stage, the

respondent no.2 filed an application seeking direction of the

court that the revisionist may be directed to undergo DNA

examination so as to ascertain the paternity of the child. This

application was objected to by the revisionist, but by the

impugned order, it has been allowed.

6. Learned counsel for the revisionist would submit

that although the revisionist and the respondent no.2 were

married, but their marriage was not valid, as saptpadi was

not done. The respondent no.3 is a Muslim. She did not

convert before marriage as per the existing law. In the

discharge slip of the hospital, Abid has been shown as the

father of the child born on 28.11.2022. The revisionist is not

the father of the child. It is also argued that Section 112 of

the Indian Evidence Act, 1872 ("the Act") makes provision for

presumption only in the cases of valid marriage, whereas, it

is argued that, instant case is not a case of valid marriage.

Therefore, it is argued that in the instant case, DNA

examination ought not to have been conducted.

7. Section 112 of the Act deals with legitimacy of

birth during marriage. It reads as follows:-

"112. 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."

8. Whether DNA examination may be ordered as and

when application is filed, this has been discussed by the

Hon'ble Supreme Court in number of cases. In the case of

Sharda Vs. Dharmpal, (2003) 4 SCC 493, the Hon'ble

Supreme Court discussed this aspect and in para 81

summed up the legal position as follows:-

"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."

9. In the case of Dipanwita Roy Vs. Ronobroto Roy,

(2015) 1 SCC 365 also, the Hon'ble Supreme Court had

occasion to deal with this aspect of the matter and in paras

16 and 17, the Hon'ble Supreme Court observed as follows:-

"16. It is borne from the decisions rendered by this Court in Bhabani Prasad Jena [Bhabani Prasad Jena v. Orissa State Commission for Women, (2010) 8 SCC 633 : (2010) 3 SCC (Civ) 501 : (2010) 3 SCC (Cri) 1053] and Nandlal Wasudeo Badwaik [Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik, (2014) 2 SCC 576 :

(2014) 2 SCC (Civ) 145 : (2014) 4 SCC (Cri) 65] that depending on the facts and circumstances of the case, it would be permissible for a court to direct the holding of a DNA examination to determine the veracity of the allegation(s) which constitute one of the grounds, on which the party concerned would either succeed or lose. There can be no dispute, that if the direction to hold such a test can be avoided, it should be so avoided. The reason, as already recorded in various judgments by this Court, is that the legitimacy of a child should not be put to peril.

17. The question that has to be answered in this case is in respect of the alleged infidelity of the appellant wife. The respondent husband has made clear and categorical assertions in the petition filed by him under Section 13 of the Hindu Marriage Act, alleging infidelity. He has gone to the extent of naming the person who was the father of the male child born to the appellant wife. It is in the process of substantiating his allegation of infidelity that the respondent husband had made an application before the Family Court for conducting a DNA test which would establish whether or not he had fathered the male child born to the appellant wife. The respondent feels that it is only possible for him to substantiate the allegations levelled by him (of the appellant wife's infidelity) through a DNA test. We agree with him. In our view, but for the DNA test, it would be impossible for the respondent husband to establish and confirm the assertions made in the pleadings. We are therefore satisfied that the direction issued by the

High Court, as has been extracted hereinabove, was fully justified. DNA testing is the most legitimate and scientifically perfect means, which the husband could use, to establish his assertion of infidelity. This should simultaneously be taken as the most authentic, rightful and correct means also with the wife, for her to rebut the assertions made by the respondent husband, and to establish that she had not been unfaithful, adulterous or disloyal. If the appellant wife is right, she shall be proved to be so." (emphasis supplied)

10. In the case of Aparna Ajinkya Firodia Vs. Ajinkya

Arun Firodia, 2023 SCC Online SC 161, the Hon'ble Supreme

Court discussed the entire law on this subject and observed

that " A Family Court, no doubt, has the power to direct a

person to undergo medical tests, including a DNA test

and such an order would not be in violation of the right

to personal liberty under Article 21 of the Constitution,

vide Sharda. However, the Court should exercise such

power only when it is expedient in the interest of justice

to do so, and when the fact situation in a given case

warrants such an exercise. Thus, an order directing that a

minor child be subjected to DNA test should not be

passed mechanically in each and every case."

11. After discussing the aspect of the matter, in para

60, the Hon'ble Supreme Court summed up the principles as

follows:-

"60. Having regard to the aforesaid discussion, the following principles could be culled out as to the

circumstances under which a DNA test of a minor child may be directed to be conducted:

i. That a DNA test of a minor child is not to be ordered routinely, in matrimonial disputes. Proof by way of DNA profiling is to be directed in matrimonial disputes involving allegations of infidelity, only in matters where there is no other mode of proving such assertions.

ii. DNA tests of children born during the subsistence of a valid marriage may be directed, only when there is sufficient prima-facie material to dislodge the presumption under Section 112 of the Evidence Act. Further, if no plea has been raised as to non-access, in order to rebut the presumption under Section 112 of the Evidence Act, a DNA test may not be directed.

iii. A Court would not be justified in mechanically directing a DNA test of a child, in a case where the paternity of a child is not directly in issue, but is merely collateral to the proceeding.

iv. Merely because either of the parties have disputed a factum of paternity, it does not mean that the Court should direct DNA test or such other test to resolve the controversy. The parties should be directed to lead evidence to prove or disprove the factum of paternity and only if the Court finds it impossible to draw an inference based on such evidence, or the controversy in issue cannot be resolved without DNA test, it may direct DNA test and not otherwise. In other words, only in exceptional and deserving cases, where such a test becomes indispensable to resolve the controversy the Court can direct such test.

v. While directing DNA tests as a means to prove adultery, the Court is to be mindful of the consequences thereof on the children born out of

adultery, including inheritance-related consequences, social stigma, etc."

12. The law is well established that in routine, the DNA

examination may not be ordered. This is a settled law. A

family court in the matrimonial case may though direct for

DNA examination, but it depends on the facts and

circumstances of each case. The sanctity of the marriage and

legitimacy of the child have always to be preserved.

13. In the case of Dipanwita Roy (supra), the Hon'ble

Supreme Court observed on this aspect. At the cost of

repetition, this Court reiterates it as follows. "There can be

no dispute, that if the direction to hold such a test can

be avoided, it should be so avoided. The reason, as

already recorded in various judgments by this Court, is

that the legitimacy of a child should not be put to peril".

14. In the instant case, the revisionist admits his

marriage with the respondent no.2, although it was argued

that saptpadi was not done. Section 112 of the Act, gives

legitimacy to a child born during the continuance of valid

marriage.

15. At this stage, it cannot be held that the marriage of

the revisionist with the respondent no.2 is not a valid

marriage. Perhaps it may find further scrutiny during final

adjudication of the case.

16. It is a positive case of the respondent no.2 that on

30.09.2022, when she was pregnant at an advance stage, the

revisionist solemnized marriage with her. Just two months

thereafter, the respondent no.2 delivered a child. It has been

the case of the respondent no.2 that her earlier husband had

already divorced her in the year 2010. In case of valid

marriage, a presumption would be raised that a child born on

28.11.2022 during the continuance of marriage of the

revisionist and the respondent no.2 is legitimate. But, in the

case, by the order refusing grant of interim maintenance to

the respondent no.2, the court had observed that it appears

that Abid was the father of the child born on 28.11.2022 by

the respondent no.2.

17. In order to decide the instant revision, there are

few factors, which are to be kept in mind as follows:-

(i) The respondent no.2 claims that she and the

revisionist did marry on 30.09.2022, though

it was claimed by the revisionist that saptpadi

was not done. This is not material at this

stage.

(ii) The child born during this continuance of

marriage shall be presumed to be legitimate

in view of Section 112 of the Act.

(iii) While considering the application for DNA

examination, one of the important factors is

the future of a child. The law says that his

legitimacy is to be protected. In the instant

case, the respondent no.2 is seeking DNA

examination so as to protect paternity of her

child, who, according to her, was born during

continuance of her marriage with the

revisionist. In contrast to it, the revisionist is

denying to give legitimacy to a child born on

28.11.2022.