Himachal Pradesh High Court
Maya vs Naresh Kumar on 23 August, 2016
Author: Rajiv Sharma
Bench: Rajiv Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr.MMO No. 08 of 2016.
Reserved on: 16.8.2016.
Decided on: 23.8.2016.
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Maya ......Petitioner.
Versus
Naresh Kumar .......Respondent.
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
of Whether approved for reporting? 1. Yes.
For the petitioner: Mr. Inderjeet Singh Narwal, Advocate. For the respondent: Mr. Hamender Chandel, Advocate.
-------------------------------------------------------------------------------------------- Justice Rajiv Sharma, J.rt The petitioner has challenged the order dated 19.11.2015 rendered in application No. 220/4 of 2015 by the learned Judicial Magistrate Ist Class, Kandaghat, Distt. Solan, H.P. in case No. 20/3 of 2014.
2. "Key facts" necessary for the adjudication of this petition are that the petitioner has filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005. The respondent has filed the reply to the same. The petitioner has also filed an application under Section 45 of the Indian Evidence Act, 1872, praying that the respondent may be directed to undergo Deoxyribonucleic Acid Test (hereinafter referred to as "DNA test") to prove the paternity of master Harsh. The reply was filed by the respondent. The learned trial Court dismissed the application filed under Section 45 of the Indian Evidence Act. 1872 on 19.11.2015. Hence, this petition.
1Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 21:04:08 :::HCHP 23. I have heard the learned counsel appearing on both the sides and have also gone through the records of the case minutely.
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4. The marriage between the parties was solemnized in the year 2010. The child was 2 years of age at the time of filing an application on 22.6.2015. The petition under Section 12 of the Protection of Women from Domestic Violence Act, 2005 was filed on 25.4.2014. An application under Section 45 of the Indian Evidence Act has been filed on 22.6.2015.
of
5. The parties cannot be ordered to undergo DNA test in a mechanical manner. The direction can be issued only in deserving cases.
rt The learned trial Court has come to the right conclusion that the parties may lead evidence to prove or disprove the factum of paternity and only if the Court finds it impossible to draw an inference or adverse inference on the basis of such evidence on record or the controversy in issue cannot be resolved without DNA test, it may direct DNA test and not otherwise.
6. Their lordships of the Hon'ble Supreme Court in the case of Goutam Kundu vs. State of West Bengal and another, reported in AIR 1993 SC 2295, have laid down the following principles as to permissibility of blood test to prove paternity:
"26. From the above discussion it emerges:-
(1) that courts in India cannot order blood test as matter of 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.::: Downloaded on - 15/04/2017 21:04:08 :::HCHP 3
(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.
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(5) No one can be compelled to give sample of blood for analysis."
7. Their lordships of the Hon'ble Supreme Court in the case of Sharda vs. Dharampal, reported in (2003) 4 SCC 493, have held that the Hindu Marriage Act or any other law governing the field does not of contain any express provision empowering the Court to issue a direction upon a party to a matrimonial proceedings to compel him to submit himself to a medical examination. However, that does not preclude a court rt from passing such an order. It has been held as under:
"16. The Hindu Marriage Act or any other law governing the field do not contain any express provision empowering the Court to issue a direction upon a party to a matrimonial proceedings to compel him to submit himself to a medical examination. However, in our opinion, this does not preclude a court from passing such an order. We may, however, notice that such provisions have expressly been inserted in England by way of Sections 22 and 23 of the Family Law Reform Act, 1987 on the recommendations of the Law Commission. Sections 23 is to the following terms:
"23. Provisions as to scientific tests (1) For Sub-sections (1) and (2) of Section 20 of the Family Law Reform Act, 1969 (power of court to require use of blood tests) there shall be substituted the following subsections -
(1) In any civil proceedings in which the parentage of any person falls to be determined, the court may, either of its own motion or on an application by any party to the proceedings, give a direction -
(a) for the use of scientific tests to ascertain whether such tests show that a party to the proceedings is or is not the father or mother of that person; and
(b) for the taking, within a period specified in the direction, of bodily samples from all or any of the following, namely, that ::: Downloaded on - 15/04/2017 21:04:08 :::HCHP 4 person, any party who is alleged to be the father or mother of that person and any other party to the proceedings;
and the court may at any time revoke or vary a direction .
previously given by it under this subsection."
8. Their lordships of the Hon'ble Supreme Court in the case of Banarsi Dass vs. Teeku Dutta (Mrs.) and another, reported in (2005) 4 SCC 449, have held that DNA test is not to be directed as a matter of routine and it is to be directed only in deserving cases. It has been held as of under:
"14. The main object of a Succession Certificate is to facilitate collection of debts on succession and afford protection to parties rt paying debts to representatives of deceased persons. All that the Succession Certificate purports to do is to facilitate the collection of debts, to regulate the administration of succession and to protect persons who deal with the alleged representatives of the deceased persons. Such a certificate does not give any general power of administration on the estate of the deceased. The grant of a certificate does not establish title of the grantee as the heir of the deceased. A Succession Certificate is intended as noted above to protect the debtors, which means that where a debtor of a deceased person either voluntarily pays his debt to a person holding a Certificate under the Act, or is compelled by the decree of a Court to pay it to the person, he is lawfully discharged. The grant of a certificate does not establish a title of the grantee as the heir of the deceased, but only furnishes him with authority to collect his debts and allows the debtors to make payments to him without incurring any risk. In order to succeed in the succession application the applicant has to adduce cogent and credible evidence in support of the application. The respondents, if they so chooses, can also adduce evidence to oppose grant of succession certificate. The trial court erroneously held that the documents produced by the respondents were not sufficient or relevant for the purpose of adjudication and DNA test was conclusive. This 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 Goutam Kundu's case (supra). Present case does not fall to that category. High Court's judgment does not suffer from any infirmity. We, therefore, uphold it.
It is made clear that we have not expressed any opinion on the merits of the case relating to succession application."
::: Downloaded on - 15/04/2017 21:04:08 :::HCHP 59. The learned Single Judge of the Andhra Pradesh High court in the case of Shaik Fakruddin vs. Shaik Mohammed Hasan and .
another, reported in AIR 2006 AP 48, has held that though the Court has the power to order a person to undergo medical test and such an order would not be in violation of the right to personal liberty under Article 21 of the Constitution. However, the Court should exercise such a power only when it is expedient in the interest of justice and when the fact situation in of a given case warrants such an exercise. It has been held as under:
"13. A conspectus of the above referred judgments shows that the rt Court has the power to order a person to undergo medical test and such an order would not be in violation of the right to personal liberty under Article 21 of the Constitution. However, the Court should exercise such a power only when it is expedient in the interest of justice and when the fact situation in a given case warrants such an exercise. The DNA Test cannot rebut the conclusive presumption envisaged under Section 112 of the Act. The parties can avoid the rigor of such conclusive presumption only by proving non-access which is a negative proof. It is always open to the Court to draw an adverse inference when the spouse refuses to undergo the test despite the direction given by the Court.
14. In my considered view, the judgment of the Apex Court in Banarsi Dass 's case squarely applies to the facts of the instant case. Merely because the second defendant denied the paternity of the first defendant, having regard to the nature of the proceedings filed and the other admitted facts emanating from the respective pleadings, there is no need for the Court in a routine manner to direct the first and second defendants to subject themselves to DNA Test oblivious of the fact that it tantamount to permitting the parties to lead evidence to rebut the conclusive proof enjoined under Section 112 of the Act ::: Downloaded on - 15/04/2017 21:04:08 :::HCHP 6 which is not permissible in view of the mandate contained in Section 4 under the definition "conclusive proof. It is always open to the Court to draw an adverse inference from the conduct of the parties, as can .
be seen from the respective pleadings."
10. The learned Single Judge of the Bombay High Court in the case of Sunil Eknath Trambake vs. Leelavati Sunil Trambake, reported in AIR 2006 Bombay 140, has held that merely because either of of the parties have disputed a factum of paternity 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 rt factum of paternity and only if the Court finds it impossible to draw an inference or adverse inference on the basis of such evidence on record 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. DNA test, in any case, cannot be directed as a matter of routine. It has been held as under:
"6. Merely because either of the parties have disputed a factum of paternity 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 or adverse inference on the basis of such evidence on record 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. DNA test, in any case, cannot be directed as a matter of routine. The Courts should record reasons as to ::: Downloaded on - 15/04/2017 21:04:08 :::HCHP 7 how and why such test in the case is necessary to resolve the controversy and is indispensable. That is necessary since a result of such test, in matrimonial and succession cases, being negative will .
have an effect of branding a child as a bastard and the mother as an unchaste women as noted in Goutam Kundu v. State of West Bengal and Anr. (1993) 3 SCC 418. That may also adversely affect the child psychologically. The Courts, however, should not hesitate to direct DNA test if it is in the best interest of a child."
11. In the instant case also, the petitioner has not made out any of case to direct the respondent to undergo DNA test at this stage.
12. Accordingly, there is no merit in the petition and the same is rt dismissed.
August 23, 2016, ( Rajiv Sharma ),
(karan) Judge.
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