Himachal Pradesh High Court
Sharda vs Surat Singh on 18 April, 2017
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
Cr. MMO No. 198 of 2016.
Reserved on : 06.04.2017.
Date of decision: 18th April, 2017.
Sharda .....Petitioner.
Versus
Surat Singh ..... Respondent.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting?1No For the Petitioner : Mr.Sudhir Thakur and Mr. Anirudh Sharma, Advocates.
For the Respondent : Mr. H.S. Rana, Advocate.
Tarlok Singh Chauhan, Judge
This case was finally heard by this Court on 20.08.2016 whereby the petition filed by the petitioner came to be allowed. However, vide an application filed by the respondent being Cr.M.P. No.999 of 2016, this order was recalled and the matter thereafter heard afresh on merits.
2. This petition under Section 482 Cr.P.C. is directed against the order dated 23.05.2016 passed by the learned Judicial Magistrate 1st Class, Solan, District Solan, H.P. whereby the application filed by the petitioner seeking direction to the respondent to undergo DNA profiling test alongwith his children and to obtain expert opinion in this regard, came to be dismissed.
3. The application filed by the petitioner under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (for short 'DV Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 19/04/2017 23:58:51 :::HCHP 2 Act') is pending adjudication before the learned trial Magistrate. In the application, the petitioner had averred that she had been living for the last .
more than 40 years with the respondent , who had kept her as a wife and out of the said relationship, two children Surinder Parkash and one Sushma were born and now the respondent had stopped maintaining the petitioner and prayed that pending disposal of the application the residence order (fourth storey - first floor known as Surat Bhawan), as required under Section 19 of the Act be passed.
4. In reply to the application, the respondent denied having had any relationship with the petitioner and further denied the children mentioned above are his.
5. In order to prove her relationship with the respondent, the petitioner filed an application under Section 45 read with Section 113 of the Indian Evidence Act, for directing the respondent to undergo DNA profiling test with the aforesaid children, which was opposed by the respondent.
6. The learned trial Court dismissed the application by initially according the following reasons:
"The present petition is petition under Section 12 of protection of women from Domestic Violence Act and the children are not party to the present petition but applicant has averred that he had denied even paternity of children and therefore, DNA test is required to be conducted. However, the paternity of the children is not in question in the present case. Moreover, it is an accepted fact that maintenance has been provided to the children under Section 125 Cr.P.C. and under Section 125 Cr.P.C. even illegitimate child is also covered. Copy of order dated 29.7.86 Ext. DX1 has been placed on record wherein they were stated to be his illegitimate children of respondent which order is not as such challenged by the respondent in any court of law. The evidence has also come to the effect that respondent was also married and had children from his wife namely Durgi Devi and it has also been stated by her in the ::: Downloaded on - 19/04/2017 23:58:51 :::HCHP 3 court that children of Sharda were also born in her presence and she was married to Basti Ram."
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Thereafter, by placing reliance upon the judgment of the Hon'ble Supreme Court in D.Velusamy vs. D. Patchaiammal, 2010 (10) SCC 469, it was further observed as under:
"In view of authority cited supra it can be safely stated that for the purpose of relief under domestic violence Act, the relationship should be akin to marriage and detail with regard to the relationship which can be stated to be akin to marriage has been provided and so the points as stated above by Hon'ble Supreme Court of India is required to be proved and therefore, paternity of children is not going to prove same. Hence, in view of discussion made above present application is not maintainable and is dismissed accordingly. Application stands disposed of accordingly. It be registered and papers after due completion be tagged with main case file for record. Be listed for arguments for 17.6.2016."
I have heard learned counsel for the parties and also gone through the records of the case.
7. It cannot be disputed that use of DNA test is an extremely delicate and sensitive aspect when it gets down to human relationship.
One view is that when modern science gives the means of ascertaining the paternity of a child, there should not be any hesitation to use those means whenever the occasion requires. However, there is other view that the Court must be reluctant in the use of such scientific advances and tools which result in invasion of right to privacy of an individual and may not be prejudicial to the rights of the parties and at the same time may have devastating effect on the child. Sometimes, the result of such a scientific test may bastardize an innocent child even though his mother and her spouse were living together during the time of conception. Any order for ::: Downloaded on - 19/04/2017 23:58:51 :::HCHP 4 DNA test can be given by the Court only if a strong prima facie case is made out for such a course.
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8. In Bhabani Prasad Jena versus Convenor Secretary, Orissa State Commission for Women and another (2010) 8 SCC 633, the Hon'ble Supreme Court has held that whenever there is a conflict between the right of privacy of a person not to submit himself to medical examination and duty of the Court to reach the truth, the Court must exercise its discretion only after balancing the interest of the parties and on due consideration whether for a just decision in the matter, DNA test is eminently needed.
9. In Dipanwita Roy versus Ronobroto Roy (2015) 1 SCC 365, the Hon'ble Supreme Court was dealing with a case pertaining to the alleged infidelity of the appellant therein and the husband wanted to prove and establish the ingredients of Section 13(1)(i) of the Hindu Marriage Act, 1955, namely, that after the solemnization of the marriage of the appellant with the respondent, the appellant therein had voluntarily engaged in sexual intercourse with a person other than the respondent. The Hon'ble Supreme Court held that the prayer made by the respondent for conducting DNA test of the appellant's son was aimed at the alleged adulterous behaviour of the appellant and, therefore, the issue of legitimacy was also incidentally involved. It was further held that depending on the facts and circumstances of each case, it will direct the holding of a DNA examination, but then it was specifically held that if the directions to hold such test can be avoided, it should be so avoided for the reasons that the legitimacy of a child should not be put to peril. It is apt to reproduce para-16 of the judgment which reads thus:-
"16. It is borne from the decisions rendered by this Court in Bhabani Prasad Jena v. Orissa State Commission for Women ::: Downloaded on - 19/04/2017 23:58:51 :::HCHP 5 (2010) 8 SCC 633 and Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik (2014) 2 SCC 576 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."
10. Shri H.S.Rana, lear ned counsel for the respondent, has strenuously argued that the application filed by the petitioner is totally misconceived as the provisions of the 'DV Act' even in the case of "live-in-
relationship" would only apply to cases where the "live-in-relationship" is a "relationship in the nature of marriage" falling within the definition of the domestic relationship under Section 2(f) of the Act and has placed strong reliance upon the judgment of the Hon'ble Supreme Court in Indra Sarma versus V.K.V.Sarma (2013) 15 SCC 755. He would contend that the petitioner very well knew that the respondent is already married and still entered into relationship and even bor e two children from his loins and, therefore, her relationship with the respondent was not in the nature of marriage.
11. I have minutely and carefully gone through the judgment in Indra Sarma's case (supra) where the Hon'ble Supreme Court has distinguished the "live-in-relationship" with that "relationship in the nature of marriage". It was held that all "live-in-relationships" are not relationships in the nature of marriage. It was further held that relationship to qualify as "relationship in the nature of marriage" should have some inherent or essential characteristics of a marriage though not a marriage legally ::: Downloaded on - 19/04/2017 23:58:51 :::HCHP 6 recognized. The Hon'ble Supreme Court drew a distinction between the nature of marriage and marital relationship by observing as under:-
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"36. We have already dealt with what is "marriage", "marital relationship" and "marital obligations". Let us now examine the meaning and scope of the expression "relationship in the nature of marriage" which falls within the definition of Section 2(f) of the DV Act. Our concern in this case is of the third enumerated category that is "relationship in the nature of marriage" which means a relationship which has some inherent or essential characteristics of a marriage though not a marriage legally recognized, and, hence, a comparison of both will have to be resorted, to determine whether the relationship in a given case constitutes the characteristics of a regular marriage.
37. The distinction between the relationship in the nature of marriage and marital relationship has to be noted first. Relationship of marriage continues, notwithstanding the fact that there are differences of opinions, marital unrest etc., even if they are not sharing a shared household, being based on law.
But live-in-relationship is purely an arrangement between the parties unlike, a legal marriage. Once a party to a live-in-
relationship determines that he/she does not wish to live in such a relationship, that relationship comes to an end. Further, in a relationship in the nature of marriage, the party asserting the existence of the relationship, at any stage or at any point of time, must positively prove the existence of the identifying characteristics of that relationship, since the legislature has used the expression "in the nature of"."
12. The Hon'ble Supreme Court thereafter proceeded to elucidate some of the categories of the cases which would or would not amount to relationship in the nature of marriage and the same are as under:-
"38. Reference to certain situations, in which the relationship between an aggrieved person referred to in Section 2(a) and the respondent referred to in Section 2(q) of the DV Act, would or would not amount to a relationship in the nature of marriage, ::: Downloaded on - 19/04/2017 23:58:51 :::HCHP 7 would be apposite. Following are some of the categories of cases which are only illustrative:
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38.1. (a) Domestic relationship between an unmarried adult woman and an unmarried adult male.- Relationship between an unmarried adult woman and an unmarried adult male who lived or, at any point of time lived together in a shared household, will fall under the definition of Section 2(f) of the DV Act and in case, there is any domestic violence, the same will fall under Section 3 of the DV Act and the aggrieved person can always seek reliefs provided under Chapter IV of the DV Act.
38.2. (b) Domestic relationship between an unmarried woman and a married adult male.- Situations may arise when an unmarried adult women knowingly enters into a relationship with a married adult male. The question is whether such a relationship is a relationship "in the nature of marriage" so as to fall within the definition of Section 2(f) of the DV Act.
38.3. (c) Domestic relationship between a married adult woman and an unmarried adult male .- Situations may also arise where an adult married woman, knowingly enters into a relationship with an unmarried adult male, the question is whether such a relationship would fall within the expression relationship "in the nature of marriage".
38.4. (d) Domestic relationship between an unmarried woman unknowingly enters into a relationship with a married adult male.- An unmarried woman unknowingly enters into a relationship with a married adult male, may, in a given situation, fall within the definition of Section 2(f) of the DV Act and such a relationship may be a relationship in the "nature of marriage", so far as the aggrieved person is concerned.
38.5 (e) Domestic relationship between same sex partners (Gay and Lesbians).- The DV Act does not recognize such a relationship and that relationship cannot be termed as a relationship in the nature of marriage under the Act. Legislatures in some countries, like the Interpretation Act, 1984 (Western Australia), the Interpretation Act, 1999 (New Zealand), the Domestic Violence Act, 1998 (South Africa), the Domestic ::: Downloaded on - 19/04/2017 23:58:51 :::HCHP 8 Violence, Crime and Victims Act, 2004 (U.K.), have recognized the relationship between the same sex couples and have .
brought these relationships into the definition of Domestic relationship."
13. Finally, the Hon'ble Supreme Court culled out some of the guidelines for distinction under what circumstances, the "live-in-
relationship" would fall within the expression "relationship in the nature of marriage" under Section 2(f) of the DV Act, which according to it were only illustrative and not exhaustive but were only meant to give some insight to such relationship and the same read thus:-
"56. We may, on the basis of above discussion cull out some guidelines for testing under what circumstances, a live-in relationship will fall within the expression "relationship in the nature of marriage" under Section 2(f) of the DV Act. The guidelines, of course, are not exhaustive, but will definitely give some insight to such relationships.
56.1. Duration of period of relationship.- Section 2(f) of the DV Act has used the expression "at any point of time", which means a reasonable period of time to maintain and continue a relationship which may vary from case to case, depending upon the fact situation.
56.2. Shared household.- The expression has been defined under Section 2(s) of the DV Act and, hence, need no further elaboration.
56.3. Pooling of resources and financial arrangements.- Supporting each other, or any one of them, financially, sharing bank accounts, acquiring immovable properties in joint names or in the name of the woman, long term investments in business, shares in separate and joint names, so as to have a long standing relationship, may be a guiding factor.
56.4. Domestic arrangements.- Entrusting the responsibility, especially on the woman to run the home, do the household activities like cleaning, cooking, maintaining or upkeeping the ::: Downloaded on - 19/04/2017 23:58:51 :::HCHP 9 house, etc. is an indication of a relationship in the nature of marriage.
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56.5. Sexual relationship.- Marriage- like relationship refers to sexual relationship, not just for pleasure, but for emotional and intimate relationship, for procreation of children, so as to give emotional support, companionship and also material affection, caring etc. 56.6. Children.- Having children is a strong indication of a relationship in the nature of marriage. Parties, therefore, intend to have a long standing relationship. Sharing the responsibility for bringing up and supporting them is also a strong indication.
56.7. Socialization in public.- Holding out to the public and socializing with friends, relations and others, as if they are husband and wife is a strong circumstance to hold the relationship is in the nature of marriage.
56.8. Intention and conduct of the parties.- Common intention of parties as to what their relationship is to be and to involve, and as to their respective roles and responsibilities, primarily determines the nature of that relationship."
14. Judged in the light of the aforesaid guidelines, it would be noticed that the Court here is dealing with a case where a woman (petitioner) herself admits that she has never married to the man (i.e. the respondent), but would claim that respondent was having access to her and out of this relationship, two children were born, whereas the case of the respondent is that of total denial of not only the relationship, but also with regard to the children being born out of this relationship.
15. As observed earlier, the parties have two grown-up children and, therefore, the sexual relationship interse them was not just for pleasure but for procreation of children so as to give emotional support, companionship as also material affection, caring etc. As observed by the Hon'ble Supreme Court, having children is a strong indication of ::: Downloaded on - 19/04/2017 23:58:51 :::HCHP 10 relationship in the nature of marriage and would be a strong indicator to establish that the parties intended to have long standing relationship, .
sharing the responsibility for bringing up and supporting the children.
16. Therefore, prima-facie, having concluded that the parties are not totally strangers, I am of the considered view that no prejudice would be caused either to the respondent or the two children, if they undergo DNA test. After all, only the truth will come out from such test and it has to be remembered that every trial is a voyage of discovery in which the truth is the quest. It is, therefore, the duty of the Court to ensure that the truth in a case comes out. The truth is the basis of justice delivery system and therefore, should be the guiding star in the entire judicial process. The Court's serious endeavour has to be to find out where in fact the truth lies.
Judges at all levels have to seriously engage themselves in the journey of discovering the truth. That is their mandate, obligation and bounden duty.
Justice system will acquire credibility only when people will be convinced that justice is based on the foundation of the truth.
17. Having said so, I find merit in this petition and the same is accordingly allowed. The order passed by the learned Judicial Magistrate 1st Class, Solan, on 23. 05.2016 is ordered to be set-aside and the petition is allowed as prayed for. Interim order granted on 30.06.2016 is vacated.
18. Petition is disposed of in the aforesaid terms, so also the pending applications, leaving the parties to bear their own costs.
April 18th , 2017. (Tarlok Singh Chauhan),
(krt) Judge.
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