Madhya Pradesh High Court
Suraj Singh Tomar vs Smt. Meenakshi Tomar on 7 June, 2021
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari
1 M.Cr.C.No.39112/2020
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SB: Hon.Shri Justice S.A.Dharmadhikari
M.Cr.C.No.39112/2020
Suraj Singh Tomar
Vs.
Smt. Meenakshi Tomar and another
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Shri Ankit Saxena, learned counsel for the petitioner.
Shri Sankalp Sharma, learned counsel for the respondents.
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ORDER
07/06/2021 This petition under Section 482 of Criminal Procedure Code has been filed questioning legality, validity and propriety of the order dt.11.02.2020 passed by the Additional Principal Judge, Family Court, Gwalior in Case No.151/2019 Mu.Fau. (Criminal), whereby the application filed by the petitioner/non-applicant under Section 45 of the Indian Evidence Act, 1872 for performing the DNA test has been rejected.
2. The brief facts leading to filing of this case are that the respondents No.1 and 2 had filed an application under Section 125 of Cr.P.C. before the Family Court. During the pendency of the application, the petitioner filed an 2 M.Cr.C.No.39112/2020 application under Section 45 of the Indian Evidence Act alleging that from the date of marriage, the petitioner and the respondent No.1 were not in any kind of physical relationship but despite that the respondent No.1 gave birth to the respondent No.2. The respondent No.1 herself has admitted that the respondent No.2 is not the son of the petitioner. Respondent No.1 is having illicit relationship with some other person and therefore the respondent No.2 being the illicit child can not be granted maintenance under Section 125 of the Cr.P.C. In such circumstances, DNA test of respondent No.2 and the petitioner may be conducted by the authorized Medical Board.
3. Shri Ankit Saxena, learned counsel for the petitioner submitted that the order passed by the learned Family Court is totally illegal, arbitrary and against the settled position of law, therefore, the impugned order deserves to be set aside. Learned family Court also did not consider the fact that prior to filing of the case under Section 125 of Cr.P.C. by the respondent No.1, the petitioner had filed an application under Section 13 of the Hindu Marriage Act on the ground of illicit relationship, cruelty and adultery but this fact has been overlooked by the learned Family Court. 3 M.Cr.C.No.39112/2020
4. On the other hand, Shri Sankalp Sharma, learned counsel for the respondents submitted that the learned Family Court has rightly rejected the application under Section 45 of the Indian Evidence Act inasmuch as the DNA report can not be ordered at this preliminary stage and in the proceedings under Section 125 of Cr.P.C. He further submitted that the proceedings under Section 125 of Cr.P.C. are summary in nature and does not contemplate detailed preliminary inquiry before an order of grant of maintenance is passed. His another bone of contention is that Section 112 of the Indian Evidence Act raises presumption in favour of the child born during legitimate marriage. The proceedings under Section 125 of Cr.P.C. being summary in nature and Section 112 of the Evidence Act raising a presumption in favour of legitimacy, difference has to be drawn between the divorce proceedings and Section 125 of Cr.P.C. proceedings where in the divorce proceedings the court would be more inclined to direct a DNA test as in divorce, adultery is a ground for divorce while in Section 125 Cr.P.C. proceedings, the burden is on the husband to first rebut the presumption of Section 112 of the Evidence Act. In support of his contentions, he has placed reliance in the case of 4 M.Cr.C.No.39112/2020 Lallu Lal Patel Vs. Anar Kali and others reported in ILR (2011) MP 1605, Nagendrappa Natikar Vs. Neelamma reported in AIR 2013 SC 1541, Manik Chandra Ankure Vs. State of West Bengal and others reported in 2004 (1) Crimes 547 (Cal.) and Badri Prasad Jharia Vs. Vatsalya Zharia reported in 2020 (Cri.L.J.) 3025 (M.P.). Learned counsel further submitted that the Family Court would resort to the proceeding under Section 125 of Cr.P.C. seeking DNA report only if other evidence brought on record by the parties are not conclusive and sufficient. The present case is at the very initial stage of its proceedings, therefore, it would not be proper to direct for DNA test.
5. Heard learned counsel for the parties.
6. In the case of Banarsi Dass v. Teeku Dutta (Mrs.) and Anr. reported in 2005 (4) SCC 449, Hon'ble Apex Court has held as under :
"Under Section 112 and 4 of Evidence Act, the conclusiveness of presumption under Section 112 cannot be rebutted by DNA test. The proof of non- access between the parties to marriage during the relevant period is the only way to rebut that presumption and DNA test is not to be directed as a matter of routine, it is to be directed only in deserving cases."
7. In the case of Nagendrappa Natikar (supra), Hon'ble Apex Court, has held as under :
5 M.Cr.C.No.39112/2020
"10. Section 125 Code of Criminal Procedure is a piece of social legislation which provides for a summary and speedy relief by way of maintenance to a wife who is unable to maintain herself and her children. Section 125 is not intended to provide for a full and final determination of the status and personal rights of parties, which is in the nature of a civil proceeding, though are governed by the provisions of the Code of Criminal Procedure and the order made Under Section 125 Code of Criminal Procedure is tentative and is subject to final determination of the rights in a civil court."
8. In the case of Badri Prasad Jharia Vs. Vatsalya Jharia (supra), this Court has held as under :
"23. The position of law is different in the case of Section 13 of Hindu Marriage Act and the application filed under Section 125 of Cr.P.C. "Adultery" is a ground for "Divorce" under Section of 13 of Hindu Marriage Act. For proving adultery, the DNA test will definitely be useful as per the established law discussed above. If the wife is refusing for DNA test, then her refusal may be considered as a ground for drawing adverse inference against her. But the position under Section 125 of Cr.P.C. is different. Section 125 (1)(b) of Cr.P.C. provides that the person is also liable to grant the maintenance to his illegitimate minor child. The section says-
"125-Order for maintenance of wives, children and parents-
(1) If any person having sufficient means neglects or refuses to maintain-
(a) ... .......
(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or.."
24. In the case filed under Section 125 of Cr.P.C. the DNA test is not mandatory in each and every case. For proving paternity under Section 125 of Cr.P.C., it is sufficient to proved that the child is the legitimate 6 M.Cr.C.No.39112/2020 child of the husband if:-
(i) Relationship of husband and wife is in existence,
(ii) During their relationship the child was born.
(iii) If the marriage between the parties has not been dissolved.
(iv) The birth of the child having taken place during the subsistence of valid marriage and the husband having access to his wife.
In this case the application was dismissed by the Court and the order was not challenged by the husband. Wife did not refuse in this case and her refusal in Hindu Marriage Act case cannot be considered in this case for drawing presumption against her."
9. In the case of Manik Chandra Ankure (supra), High Court of Calcutta has held as under :
"6. I have heard the learned Advocates of the respective parties. I have also gone through the impugned order passed by the learned Additional Sessions Judge as also the order passed by the learned Magistrate. In my considered view, the impugned order passed by the learned Additional Sessions Judge does not suffer from any illegality. As I have already pointed out earlier Section 125, Cr.P.C. provides a swift remedy against any person who despite means neglects or refuses to maintain his wife and other dependents. The primary object of the section is to prevent starvation and vagrancy. Section 125, Cr.P.C. provides a summary procedure. The findings are also not final and the parties can agitate their rights in the Civil Court. In a proceeding under Section 125, Cr.P.C., the Court would not be justified in suspecting the chastity of the wife merely because the husband casts aspersion on her chastity. If the husband wants to challenge the paternity of the child he can always file a civil suit in appropriate Civil Court for such declaration. In a proceeding 7 M.Cr.C.No.39112/2020 under Section 125, Cr.P.C. the learned Magistrate was not justified in directing D.N.A. test of the child. The learned Additional Sessions Judge was very much justified in setting aside such order of the learned Magistrate. In my considered view, the order passed by the Additional learned Sessions Judge does not suffer from any illegality and I do not find any reason to interfere with the same."
10. Learned Family Court has rejected the application under Section 45 of the Evidence Act relying on the judgment passed in the case of Sunil Eknath Vs. Leelavati reported in AIR 2006 Bom 140, in which it is held that the parties may be directed to first produce the evidence and if it is found that it is difficult to come to the conclusion, then only the DNA test may be ordered.
11. In view of the aforesaid facts and circumstances, while analyzing the factual and legal background of this case as also while considering the judgments of the Courts relied upon by the parties and the reasons assigned by the learned Family court for rejection of the application, this Court is of the view that the learned Family Court has rightly rejected the application and directed the parties to bring the evidence on record. This Court does not find any error so as to invoke the extraordinary jurisdiction of this Court under Section 482 of Cr.P.C. The petition being devoid of merits is hereby dismissed.
8 M.Cr.C.No.39112/2020
12. Family Court is directed to proceed further in the matter and allow the parties to lead their respective evidences if not already led. However, the petitioner would be at liberty to avail the appropriate remedy as available under the law.
(S.A.Dharmadhikari) Judge SP SANJEEV KUMAR PHANSE 2021.06.07 20:09:58 +05'30'