Madras High Court
Kalyani vs Prabu on 15 March, 2013
Author: Aruna Jagadeesan
Bench: Aruna Jagadeesan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 15/03/2013 CORAM THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN CRL.RC(MD)760 of 2008
1.Kalyani
2.P.Gajan ... Petitioners Vs Prabu ... Respondent Prayer This Criminal Revision Case is filed against the order dated 17.06.2008 made in Crl.RC.No.69/2006 by the learned Additional District and Sessions Judge, FTC II, Tiruchirappalli setting aside the order dated 20.3.2006 made in MC.No.233/2003 by the learned Chief Judicial Magistrate, Tiruchirappalli.
!For Petitioner... Mr.T.A.Om Prakash ^For Respondent... Mr.Veera Kathiravan :Order This Criminal Revision Case is filed against the order dated 17.06.2008 made in Crl.RC.No.69/2006 by the learned Additional District and Sessions Judge, FTC II, Tiruchirappalli, setting aside the order dated 20.3.2006 made in MC.No.233/2003 by the learned Chief Judicial Magistrate, Tiruchirappalli.
2. The learned Chief Judicial Magistrate awarded maintenance to the Petitioners, who are the wife and minor son, at the rate of Rs.500/- to the wife and Rs.250/- for the minor son and directed the Respondent husband to pay the maintenance from the date of the petition. The Respondent preferred a revision before the learned Additional District and Sessions Judge against the said order of the learned Chief Judicial Magistrate. The revisional court set aside the order passed by the Trial Court, remanded the matter back to the Trial Court and directed the parties to subject themselves to DNA Test in order to find out the paternity of the minor son, 2nd petitioner herein. Aggrieved against the said order, this criminal revision petition has been filed by the wife. Pending the revision, the minor son was impleaded as the 2nd petitioner represented by his mother/the 1st petitioner, by order dated 27.8.2012 of this court.
3. Mr.T.A.Om Prakash, the learned counsel for the Petitioner vehemently submitted that the revisional court, without pointing out any illegality of the order passed by the Trial Court, simply set aside the order and remanded the matter back to the trial court to find out as to whether the minor son was born to the Respondent, admittedly, when there is no relief prayed for by the Respondent pending the revision to that effect. the learned counsel further submitted that the revisional court erred in taking a contrary view without assigning any reasons. Therefore, he would submit that the order of the revisional court is illegal and unsustainable and deserves to be set aside. The learned counsel relied on the decision of the Honourable Supreme Court reported in 2012-1-SCC-Cri-371 (Pyla Mutyalamma Alias Satyavathi Vs. Pyla Suri Demudu and another) in support of his contention that the revisional court has no power to reassess the evidence and substitute its own findings.
4. On the other hand, Mr.Veera Kathiravan, the learned counsel for the Respondent contended that the Respondent having disputed the marriage as well as the paternity of the minor son, it is unsafe to act on the uncorroborated testimony of the 1st Petitioner and in the absence of any independent evidence being offered by the Petitioners, the revisional court was right in directing the parties to undergo DNA Test only to find out the paternity of the 2nd Petitioner. The learned counsel would further submit that when the question at issue before the revisional court was as to whether the Respondent is the father of the 2nd Petitioner, it is prima facie improper to accept, without corroboration, the mere statement on oath of the mother, who asserts the paternity and the burden is heavily upon the 1st Petitioner to establish the paternity of the child and to show that the Respondent, from whom she claimed maintenance for the child, was the father of the child.
5. This court heard the learned counsel on either side and also perused the materials placed on record.
6. At the outset, it is to be stated that the maintenance provision under Section 125 of Cr.PC is meant for providing speedy remedy to the wife, child and parents unable to maintain themselves and is a classic example of welfare legislation. Under Section 125 of the Code, whenever a person, having sufficient means, neglects or refuses to maintain the persons mentioned in clause (a) to (d) of Section 125(1) of Cr.PC, upon proof of such neglect or refusal, the Magistrate can order such person to pay a monthly maintenance. The said provisions are really enacted for ensuring some supply of food, clothes and shelter to deserted wife and children.
7. In the present case, it is needless to point out here that whether the 1st Petitioner and the Respondent had no access to each other is a question of fact and it must be proved by the person, who denies the legitimacy of the child. Similarly, the non access must also be proved during the relevant period. The Trial Court, after carefully analysing the evidence placed on record, came to the conclusion that the 2nd Petitioner was born to the Respondent, as non access was not proved between the 1st Petitioner and the Respondent. Therefore, where paternity was a question of fact and the finding thereon was arrived at after considering the adequate evidence placed on record, interference by the revisional court on the question of fact was uncalled for.
8. On a perusal of the entire evidence placed on record, I am of the view that the Petitioners had fulfilled the requirements of claiming maintenance within the meaning of sub clause (b) of Section 125 of Cr.PC. The revisional court did not consider the evidence, but took the view that paternity having been disputed, it has not been established by the Petitioners and suo motu directed the parties to go for DNA test, when no such relief was sought for by either of the parties by written application in that regard. The revisional court has referred to the statement made by the 1st Petitioner that she has no objection to undergo the DNA Test to prove paternity. The said statement made by the 1st Petitioner, during the cross-examination is irrelevant, as the court should have left the parties to prove their respective cases by such evidence produced during the trial rather than creating evidence by directing DNA Test.
9. Section 112 of the Evidence Act provides that the birth during the marriage is a conclusive proof of the legitimacy of a child. The presumption under Section 112 of the Evidence Act can be rebutted by evidence that the husband and wife had no access to each other at any time when the child could have been begotten. Such a evidence must be strong, distinct, clear, satisfactory and conclusive, as has been held by the Honourable Supreme Court in the decision reported in 1993-3-SCC-418 (Goutam Gundu Vs. State of West Bengal and another), wherein the Honourable Supreme Court has held as follows:-
"26. From the above discussion, it emerges:-
(1) that courts in India cannot order blood test as a matter course;
(2) wherever applications are made for such prayers in order to have roving inquiry, the prayer for blood test cannot be entertained.
(3) There must be a strong prima facie case in that the husband must establish non access in order to dispel the presumption arising under Section 112 of the Evidence Act.
(4) The court must carefully examine as to what would be the consequence of ordering the blood test; whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman."
The said view has been reiterated in the decisions of the Honourable Supreme Court reported in 1987-1-SCC-624 (Dukhtar Jahan Vs. Mohammed Farooq) and 2003- 10-SCC-228 (Amarjit Kaur Vs. Harbhajan Singh).
10. In this case, the revisional court, without assigning any reasons, erroneously held that the evidence produced by the parties were not sufficient for the purpose of adjudication and DNA Test was conclusive. This, in my opinion, is not a correct view. It is for the parties to place evidence in support of their respective claims and establish their stands. DNA Test is not to be directed as a matter of routine and only in deserving cases, such a direction can be given, as was noted in 1993-3-SCC-418 (Goutam Gundu Vs. State of West Bengal and another). The present case does not fall in that category.
11. The Honourable Supreme Court in a recent decision reported in 2012-1-SCC-Cri-371 (Pyla Mutyalamma Alias Satyavathi Vs. Pyla Suri Demudu and another) has held that the revisional court ought not to have entered into the scrutiny of the finding recorded by the Magistrate that the 2nd Petitioner was born to the Respondent before allowing an application determining maintenance, as it is well settled that the revisional court can interfere only if there is any illegality in the order or there is any material irregularity in the procedure or there is an error of jurisdiction. The revisional court suo motu cannot order DNA Test when there is no prayer or relief sought for by the parties. The Honourable Supreme Court has held in the decision cited supra that under revisional jurisdiction, the court is not required to enter into re- appreciation of evidence recorded in the order granting maintenance; at the most it could correct a patent error of jurisdiction. It is held as follows:-
"16. In a revision against the maintenance order passed in proceedings under Section 125 of Cr.PC, the revisional court has no power to reassess evidence and substitute its own findings. Under revisional jurisdiction, the questions whether the applicant is a married wife, the children are legitimate/illegitimate, being pre-eminently questions of fact, cannot be reopened and the revisional court cannot substitute its own views. The High Court, therefore, is not required in revision to interfere with the positive finding in favour of the marriage and patronage of a child. But where finding is a negative one, the High Court would entertain the revision, re-evaluate the evidence and come to a conclusion whether the findings or conclusions reached by the Magistrate are legally sustainable or not as negative finding has evil consequences on the life of both the child and the woman. This was the view expressed by the Honourable Supreme Court in Santosh Vs. Naresh Pal (1998-8- SCC-447) as also in Pravati Rani Sahoo Vs. Bishnupada Sahoo (2002-10-SCC-510). Thus, the ratio decidendi which emerges out of a catena of authorities on the efficacy and value of the order passed by the Magistrate while determining maintenance under Section 125 of Cr.PC is that it should not be disturbed while exercising revisional jurisdiction."
12. The above being the position, the order passed by the revisional court directing the parties to go for DNA Test and remanding the matter back to the Trial Court is unsustainable.
13. In the result, this criminal revision petition is allowed. The impugned order dated 17.06.2008 made in Crl.RC.No.69/2006 by the learned Additional District and Sessions Judge, FTC II, Tiruchirappalli, directing the parties to get a report regarding paternity of the child by undergoing DNA Test and remanding the matter back to the Trial Court, by setting aside the order dated 20.3.2006 made in MC.No.233/2003 by the learned Chief Judicial Magistrate, Tiruchirappalli is set aside. The matter is remanded back to the learned Additional District and Sessions Judge, FTC II, Tiruchirappalli and the learned Additional District and Sessions Judge, FTC II, Tiruchirappalli is directed to pass orders on the evidence available on record and in accordance with law, within a period of two months from the date of receipt of a copy of this order.
Srcm To:
1.The Additional District and Sessions Judge, FTC II, Tiruchirappalli
2.The Chief Judicial Magistrate, Tiruchirappalli.