Delhi District Court
Bharat Sharma vs Shavita Sharma on 12 December, 2014
1
IN THE COURT OF MS. HEMANI MALHOTRA, ADDITIONAL
SESSIONS JUDGE-05 (CENTRAL), TIS HAZARI COURTS
DELHI
CA.No. 75/2014
Bharat Sharma,
S/o Late Sh. Dasa Prasad,
Presently posted as Constable in CRPF,
Rank No.931181621, 12th Batalion,
Gopal Para
Assam
Permanent Address : R/o Gudri Bazar,
Village Rasada,
District Ballia (UP)
Pin:221712
........Appellant
Versus
Shavita Sharma
W/o Sh. Bharat Sharma,
D/o Sh. Surender Kumar,
R/o MCF 142, Sanjay Colony,
Sector 22, Faridabad,
Haryana.
..........Respondent
Date of institution :24.07.2014
Date of conclusion of arguments/
reservation of Judgment :05.12.2014
Date of pronouncement of judgment :12.12.2014
JUDGMENT
1. Present appeal has been preferred against the order dated 14.07.2014 passed by the learned MM (Mahila Court) in Criminal complaint No. 126/6/10 filed under Section 12 of the Protection of Women from Domestic Violence Act (hereinafter referred to as The Act) by the Judgment on Appeal No. 75/14 titled Bharat Sharma Vs. Savita Sharma 1 Of 6 2 respondent/wife whereby the learned Trial Court dismissed the application of the appellant filed u/s 112 read with Section 9 of the Indian Evidence Act.
2. Briefly stated, facts necessary for the disposal of the present appeal are that the marriage between the parties was solemnized on 21.02.1996 and two children namely Master Vishal and Baby Jigyasa were born out of the wedlock. The respondent/wife filed a complaint u/s 12 of The Act along with an application u/s 23 of the Act for interim maintenance. Vide order dated 10.04.2012, the learned MM granted maintenance only to the minor son Vishal and declined maintenance to the respondent/wife and the minor daughter Jigyasa on the ground that the respondent/wife refused to undergo DNA test as it was alleged by the appellant /Husband that the minor daughter Jigyasa was not his daughter and was an illegitimate child of his wife. The said order was challenged by way of appeal before the learned Sessions Court by the respondent/wife which vide order dated 28.07.2012 was allowed and impugned order dated 10.04.2012 was set aside. Accordingly, the learned MM directed the appellant/Husband to pay Rs.7,500/- per month to the complainant and the minor children as maintenance from the date of filing of the petition till its disposal.
3. At the stage of the complainant's evidence, the learned counsel for the appellant/Husband moved an application U/s 112 read with Section 9 of Indian Evidence Act, thereby, once again raising the issue of illegitimacy of the minor daughter Jigyasa. As already mentioned above, this application was dismissed by the learned MM vide the impugned order which has been challenged before this court.
Judgment on Appeal No. 75/14 titled Bharat Sharma Vs. Savita Sharma 2 Of 6 3
4. It has been very vehemently urged by the learned counsel for the respondent/wife that the order dated 28.07.2012 passed by the learned ASJ regarding the same issue has attained finality as the same has not been challenged by the appellant/Husband till date. Hence, the presnt appeal be rejected on this ground.
5. Per contra, it has been argued by learned counsel for the appellant that the order dated 28.07.2012 was passed on the issue of interim maintenance and the cause of action is now different as the application of the appellant u/s 112 read with Section 9 of the Indian Evidence Act has been dismissed. It is also contended that the appellant/Husband in his written statement has categorically replied to the allegation of the respondent/wife by stating that the respondent/wife always told him that the children were born outside the wedlock. Hence, to resolve the issue of the paternity and the grant of maintenance to the minor daughter, it was imperative that DNA test be conducted. To support his contentions, learned counsel for the appellant/Husband has relied upon cases titled as B.Vandana Kmari Vs P.Praveen Kumar and Another reported as 2006 Legal Eagle (AP) 145 decided on 26.09.2006, Nirmaljit Kaur (I) Vs State of Punjab reported as 2006 (9) SCC 363 :2006 (2) SCC (Cri) 541 decided on 15.07.2005, Mrs. Kanchan Bedi and another Vs Gurpreet Singh Bedi reported as AIR 2003 Delhi 446 decided on 07.02.2003, Govind Pal Singh Vs Rekha and Another in Criminal Revision No.686/1993 decided on 07.07.1997, Veeran Versus Veeravarmalle and Another : C.R.P (PD) No.2285 of 2007 and M.P. No. 1 of 2007 decided on 24.10.2008 and Rohit Shekhar Vs Narayan Dutt Tiwari & Another, FAO (OS) No.547/201 decided on 27.04.2012.
Judgment on Appeal No. 75/14 titled Bharat Sharma Vs. Savita Sharma 3 Of 6 4
6. The sole issue which is involved in the present appeal is if on the application of the appellant/Husband alleging that the minor daughter is not his, DNA test can be directed to be conducted. It has been held in all the judgments cited by the learned counsel for the appellant that the direction to conduct DNA test has to be decided on the basis of the nature of the controversy involved. In B.Vandana Kumari Vs P.Praveen Kumar and Another (Supra) cited by the learned counsel for the appellant, it has been categorically observed that Section 112 of the Evidence Act, read with the definition of conclusive proof u/s 4 of the Evidence Act, makes it clear that on proof of the fact that the child was born during the continuance of a valid marriage , the legitimacy of such child shall be regarded as proof which can be disproved only by producing evidence that the parties to the marriage had no access to each other at any time when the child could have been begotten. In the said judgment (Supra0, the Apex Court Judgment rendered in Goutam Kundu Vs State of West Bengal reported as AIR 1993 Supreme Court 2295 was dismissed and relied upon wherein it was observed :
"This Section is based on the well-known maxim pater est quem nuptiae demonstrant (he is the father whom the marriage indicates). The presumption of legitimacy is this, that a child born of a married woman is deemed to be legitimate, it throws on the person who is interested in making out the illegitimacy, the whole burden of proving it. The law presumes both that a marriage ceremony is valid, and that every person is legitimate. Marriage or filiation (parentage) may be presumed, the law in general presuming against vice and immorality.
It is a rebuttable presumption of law that a child born during the lawful wedlock is legitimate, and that access occurred between the parents. This presumption can only be displaced by a strong preponderance of evidence, and not by a mere balance of probabilities."
7. In Kamti Devi Vs Poshi Ram reported as AIR 2001 Supreme Judgment on Appeal No. 75/14 titled Bharat Sharma Vs. Savita Sharma 4 Of 6 5 Court 2226 it was held :
"...........Section 112 itself provides an outlet to the party who wants to escape from the rigour of that conclusiveness. The said outlet is, if it can be shown that the parties had no access to ech other at the time when the child could have been begotten the presumption could be rebutted. In other words, the party who wants to dislodge the conclusiveness has the burden to show a negative, not merely that he did not have the opportunity of approaching him during the relevant time. Normally, the rule of evidence in other instances is that the burden is on the party who asserts the positive, but in this instance the burden is cast on the party who pleads the negative. The raison detre is the legislative concern against illegitimatizing a child. It is a sublime public policy that children should not suffer social disability on account of the laches or lapses of parents.
We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancements with Diolxy Nucleic Acid (DNA) as well as Ribonucleic Acid (RNA) tests were not even in contemplation of the legislature. The result of a genuine DNA test is said to be scientifically accurate. But even that is not enough to escape from the conclusiveness of Section 112 of the Act , e.g, if a husband and wife were living together during the time of conception by the DNA test revealed that the child was not born to the husband, the conclusiveness in law would remain unrebuttable. This may look hard from the point of view of the husband who would be compelled to bear the fatherhood of a child of which he may be innocent. But even in such a case the law leans in favour of the innocent child from being bastardized if his mother and spouse were living together during the time of conception. Hence, the question regarding the degree of proof of non-access as delineated above."
8. It was also observed in B.Vandana Kumari (Supra) that though the Court has ample power while deciding matrimonial matters to order a person to undergo medical tests which can not be held to be in violation of the rights guaranteed under Article 21 of the Constitution of India as held in AIR 2003 Supreme Court 3450, however, such power is required to be exercised sparingly only where sufficient material is available before the Court and a strong prima facie case has been made out by the applicant.
Judgment on Appeal No. 75/14 titled Bharat Sharma Vs. Savita Sharma 5 Of 6 6
9. In the factual matrix of the present case, except for making bald allegations against the respondent/wife, no material has been placed on record by the appellant/Husband to show that he had no access to the respondent/wife or that she was living in adultery. To dislodge the conclusiveness of legitimacy of the child declared u/s 112 of the Evidence Act, the burden lies on the appellant/Husband to establish the allegations of the minor daughter being illegitimate by proving that the parties to the marriage had no access to each other at the time when the minor daughter was conceived. It is only when he succeeds in establishing the same can the DNA test be directed. The appellant/Husband in my opinion has so far miserably failed to adduce any material on record to prove his allegation against the respondent /wife and their minor daughter so as to warrant any DNA test.
10. In view of the aforementioned discussion as well as the fact that the order dated 28.07.2012 of learned ASJ was not challenged , the present appeal is dismissed being devoid of any merit.
Copy of the judgment be sent to the learned Trial court along with trial court record. File be consigned to Record Room.
Signed and announced in the open court (HEMANI MALHOTRA)
Today on December 12, 2014 ADDL. SESSIONS JUDGE
TIS HAZARI COURTS:DELHI
Judgment on Appeal No. 75/14 titled Bharat Sharma Vs. Savita Sharma 6 Of 6