Himachal Pradesh High Court
Master Sanjeev Kumar(Minor) Through ... vs Sh. Kehar Singh on 4 July, 2016
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MMO No. 76 of 2008 and
Cr.MP No. 1023 of 2011.
.
Date of Decision : 4th July, 2016.
Master Sanjeev Kumar(minor) through his natural guardian
Smt. Leela Devi
.....Petitioner.
Versus
Sh. Kehar Singh .....Respondent.
of
Coram
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
rt
Whether approved for reporting? Yes.
For the Petitioner: Mr. Gaurav Gautam, Advocate.
For Respondent : Mr. Janesh Gupta, Advocate.
Sureshwar Thakur, Judge (Oral)
The petitioner herein being minor through his natural guardian-cum-mother Smt. Leela Devi had instituted an application under Section 125 of the Code of Criminal Procedure ( for short "Cr.P.C.") before the learned Chief Judicial Magistrate, Chamba claiming therein an order being rendered upon the respondent herein for the latter paying to him the necessary expenses for his maintenance. The application was allowed by the learned Chief Judicial Magistrate, Chamba and in a revision preferred therefrom by the respondent herein before the learned Sessions Judge, ::: Downloaded on - 15/04/2017 20:45:27 :::HCHP 2 Chamba, the latter Court accepted the revision petition and also reversed the findings besides the verdict recorded by the .
learned Chief Judicial Magistrate, Chamba.
2. Since, the petition constituted before the learned Chief Judicial Magistrate, Chamba was laid therebefore under Section 125 of the Cr.P.C., hence, the petitioner herein was of held by it to stand entitled to claim maintenance from the respondent herein, even if no clinching proof stood adduced rt therebefore by his mother of hers contracting a valid marriage with the respondent herein. However, the necessary ingredient for fastening liability upon the respondent herein to pay the necessary maintenance for the up keep and welfare of the petitioner herein was of, the mother of the petitioner and the respondent herein sexually accessing each other, also concomitant cogent proof in substantiation thereto stood enjoined to be adduced therebefore at the instance of the mother of the petitioner herein.
3. Be that as it may, the mother of the petitioner herein, Smt. Leela Devi in proof of hers solemnizing marriage with the respondent herein had while stepping into the witness box deposed of hers 3-1/2 years prior to her deposition standing recorded before the Court concerned ::: Downloaded on - 15/04/2017 20:45:27 :::HCHP 3 hers solemnizing marriage with the respondent herein at Bhalei temple whereat both garlanded each other, in .
succession whereto one Bainsu, the maternal uncle of Smt. Leela Devi, the mother of the petitioner herein, stands deposed by her to have met her thereat who entreated them to accompany him to his house. The factum as deposed by of AW-1 Smt. Leela Devi of hers in the manner aforesaid solemnizing marriage with the respondent herein, though rt stands corroborated by Bainsu Ram, who stepped into the witness box as AW-3, yet the latter has not corroborated AW-
1 Smt. Leela Devi qua the factum of hers along with the respondent herein on entreaties made upon them by him, theirs proceeding to his house. Consequently, with AW-3 not supporting AW-1 qua the factum of his beseeching both to accompany him to his house whereat they, as contrarily deposed by AW-1, proceeded to, renders the deposition of AW-1 qua the factum aforesaid to stand obviously contrived by her, whereupon no reliance is imputable. In sequel, it is also to be concluded of even the factum of AW-3 witnessing the purported marriage solemnized inter se the mother of the petitioner, Smt. Leela Devi and the respondent herein holding no veracity. In aftermath, the solitary testimony of AW-1 ::: Downloaded on - 15/04/2017 20:45:27 :::HCHP 4 qua hers purportedly solemnizing marriage with the respondent herein at Bhalei temple, testimony whereof stood .
concerted by her to be corroborated by AW-3 whereas with the testimony of AW-3 for the reasons aforestated standing concluded to be a contrived besides an interested testimony, whereupon the testimony of AW-1 wherein she named AW-3 of to be the person who witnessed her marriage with the respondent herein also is to be construable to be a rt concoction in its entirety. Also, the factum of Ex.PA, a complaint lodged by the mother of the petitioner against the respondent herein wherein she has constituted allegations against the respondent herein of his committing offences constituted under Sections 420 and 376 of the IPC being reticent qua the factum of hers solemnizing marriage with the respondent herein does per se repel the factum of hers holding any relationship as a spouse of the respondent herein. Furthermore, with no graphic display occurring therein of hers solemnizing a marriage with the respondent herein does for reiteration countervail the effect, if any, of her deposition qua hers in the manner besides at the venue enunciated therein solemnizing a marriage with the respondent herein. It is also stated by the learned counsel ::: Downloaded on - 15/04/2017 20:45:27 :::HCHP 5 appearing for the parties of Ex.PA standing withdrawn on 3.05.2004 by the mother the petitioner, whereupon hence a .
conclusion can also stand erected of the allegations constituted therein against the respondent herein qua his holding her to sexual intercourse, in sequel whereof she conceived a child in her womb, losing efficacy.
of
4. Now the only evidence which is to be adverted to is the testimony of AW-2 Mutlabi, who is purported witness rt qua the factum of both the mother of the petitioner and the respondent herein holding a sexually compromising posture.
Even, the testimony of AW-1 qua the factum aforesaid whereupon the counsel for the petitioner herein contends of the respondent herein sexually accessing the mother of the petitioner herein, in sequel, whereto she conceived a child in her womb begotten from the loins of the respondent herein cannot stand to be capitalized upon by the counsel for the petitioner, as given the factum aforesaid of the mother of the petitioner herein withdrawing Ex.PA, withdrawal whereof by her holding a consequential effect of the narrations occurring therein also standing nullified, renders the deposition of AW-1 to be bereft of veracity, rather a conclusion stand reared of his being an engineered witness.
::: Downloaded on - 15/04/2017 20:45:27 :::HCHP 65. The learned counsel appearing for the petitioner has contended with much vigour by placing reliance upon a .
decision of the Hon'ble Apex Court reported in Nand Lal Wasudeo Badwaik versus Lata Nand Lal Badwaik and another, (2014)2 SCC 576, relevant paragraphs whereof stand extracted hereinafter, to espouse before this Court of of yet on his application standing preferred hereat under Section 482 of the Cr.P.C., an order, for unearthing the truth rt qua the factum of the petitioner herein standing begotten from the loins of the respondent herein, be rendered thereupon, for hence facilitating the impugned order wherefrom the instant petition stand filed hereat being concluded to be infirm. The relevant paragraphs No. 14 to 17 of the afore-referred judgment read as under:-
"14. Now we have to consider as to whether the DNA test would be sufficient to hold that the appellant is not the biological father of respondent no. 2, in the face of what has been provided under Section 112 of the Evidence Act, which reads as follows:
"112. Birth during marriage, conclusive proof of legitimacy.- The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other ::: Downloaded on - 15/04/2017 20:45:27 :::HCHP 7 at any time when he could have been begotten."
15. From a plain reading of the aforesaid, it is evident that a child born during the continuance of a .
valid marriage shall be a conclusive proof that the child is a legitimate child of the man to whom the lady giving birth is married. The provision makes the legitimacy of the child to be a conclusive proof, if the conditions aforesaid are satisfied. It can be denied only if it is shown that the parties to the marriage have no access to each other at any time when the child could have been begotten. Here, in the present case, the wife had pleaded that the husband had of access to her and, in fact, the child was born in the said wedlock, but the husband had specifically pleaded that after his wife left the matrimonial home, she did not return and thereafter, he had no access to rt her. The wife has admitted that she had left the matrimonial home but again joined her husband. Unfortunately, none of the courts below have given any finding with regard to this plea of the husband that he had or had not any access to his wife at the time when the child could have been begotten.
16. As stated earlier, the DNA test is an accurate test and on that basis it is clear that the appellant is not the biological father of the girl- child. However, at the same time, the condition precedent for invocation of Section 112 of the Evidence Act has been established and no finding with regard to the plea of the husband that he had no access to his wife at the time when the child could have been begotten has been recorded. Admittedly, the child has been born during the continuance of a valid marriage. Therefore, the provisions of Section 112 of the Evidence Act conclusively prove that respondent No. 2 is the daughter of the appellant. At the same time, the DNA test reports, based on scientific analysis, in no uncertain terms suggest that the appellant is not the biological father. In such circumstance, which would give way to the other is a complex question posed before us.
17. We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancement and DNA test were not even in contemplation of the Legislature. The result of DNA test is said to be scientifically accurate. Although Section 112 raises a presumption of conclusive proof on satisfaction of the conditions ::: Downloaded on - 15/04/2017 20:45:27 :::HCHP 8 enumerated therein but the same is rebuttable. The presumption may afford legitimate means of arriving at an affirmative legal conclusion. While the truth or fact is known, in our opinion, there is no need or .
room for any presumption. Where there is evidence to the contrary, the presumption is rebuttable and must yield to proof. Interest of justice is best served by ascertaining the truth and the court should be furnished with the best available science and may not be left to bank upon presumptions, unless science has no answer to the facts in issue. In our opinion, when there is a conflict between a conclusive proof envisaged under law and a proof based on scientific of advancement accepted by the world community to be correct, the latter must prevail over the former.
18. We must understand the distinction between a legal fiction and the presumption of a fact. Legal rt fiction assumes existence of a fact which may not really exist. However presumption of a fact depends on satisfaction of certain circumstances. Those circumstances logically would lead to the fact sought to be presumed. Section 112 of the Evidence Act does not create a legal fiction but provides for presumption.
19. The husband's plea that he had no access to the wife when the child was begotten stands proved by the DNA test report and in the face of it, we cannot compel the appellant to bear the fatherhood of a child, when the scientific reports prove to the contrary. We are conscious that an innocent child may not be bastardized as the marriage between her mother and father was subsisting at the time of her birth, but in view of the DNA test reports and what we have observed above, we cannot forestall the consequence. It is denying the truth. "Truth must triumph" is the hallmark of justice."
6. The aforesaid submission addressed before this Court by the learned counsel appearing for the petitioner herein would come to be accepted by this Court only in the event of material as exists on record hereat being bereft of any stain of premeditation, invention or contrivance on the ::: Downloaded on - 15/04/2017 20:45:27 :::HCHP 9 part of the mother of the petitioner herein also unblemished evidence qua the respondent herein sexually accessing the .
mother of the petitioner herein would constrain this Court to fasten a liability upon the respondent herein to maintain the petitioner herein given his being his purported biological father. However, when for reasons aforestated, the material of as extantly exists on record pronounces with vividty of the mother of the petitioner herein inventing besides contriving rt evidence in display of the petitioner herein standing begotten from the loins of the respondent herein, renders the endeavour now concerted to by the learned counsel appearing for the petitioner to be unacceptable, rather its also likewise being construable to be a mere contrivance adopted by the mother of the petitioner to untenably claim maintenance from the respondent herein for the upkeep and welfare of the petitioner herein.
7. Be that as it may, even the Hon'ble Apex Court in the judgment (supra) dwelt upon the imperativeness qua the holding of the DNA test, its constituting conclusive evidence in rebuttal qua the presumption constituted under Section 112 of the Indian Evidence Act. Given fastening of conclusivity to the findings recorded by the expert concerned ::: Downloaded on - 15/04/2017 20:45:27 :::HCHP 10 while holding the DNA test besides concomitantly its holding leverage to rebut the presumption constituted under Section .
112 of the Indian Evidence Act renders its application hereat to be grossly inapposite given the apt provisions of Section 112 of the Indian Evidence Act standing bedrocked upon substantiation of the indispensable statutory tenet qua of subsistence of a valid marriage inter se the spouses being peremptory for its provisions to hold play. The inappositeness rt qua pronouncement hereat of any order directing the holding of the relevant DNA test for the relevant purpose stands engendered by the prime factum of the mother of the petitioner herein not proving hers contracting a valid marriage with the respondent herein, imperatively when the aforesaid proof hereat is amiss, whereas the pronouncement of the Hon'ble Apex Court squarely with full might holds qua the imperativeness for the ordering for the holding of the DNA test for eroding the presumption constituted under Section 112 of the Indian Evidence Act, presumption whereof hereat cannot per se be held to be open to suffer erosion or rebuttal given the sine qua non for its facing the ill-fate of rebuttal by an opinion rendered by the expert concerned on holding the DNA test, when stands comprised in the evident ::: Downloaded on - 15/04/2017 20:45:27 :::HCHP 11 fact of a valid subsisting marriage occurring vis-a-vis the mother of the petitioner herein and the respondent herein, .
whereas the aforesaid indispensable tenet for rendering workable Section 112 of the Indian Evidence Act remains hereat un-satiated, renders also any ordering by this Court qua the holding of the relevant DNA test to be inappropriate, of fortifyingly when any ordering hereat for its being held is only for rebutting the presumption constituted under Section 112 rt of the Indian Evidence Act, rebuttal whereof would not emanate given the lack of proof of any valid subsisting marriage occurring inter se the mother of the petitioner herein with the respondent herein. Contrarily, when hereat for reasons alluded hereinabove the mother of the petitioner and the respondent herein never entered into a lawful wedlock nor ever held any sexual intimacy renders the petitioner herein to hold no leverage to foist any right upon the petitioner to stake any claim from the respondent herein for his maintenance by the latter on the ground of his standing begotten from the loins of the respondent herein, besides disables the learned counsel appearing for the petitioner herein to stake on the anchorage of the verdict of the Hon'ble Apex Court for any ordering hereat of the DNA ::: Downloaded on - 15/04/2017 20:45:27 :::HCHP 12 test, amplifyingly when the pronouncement of the Hon'ble Apex Court with specificity stand confined to hold clouts .
besides legal might solitarily for rebutting the presumption constituted under Section 112 of the Indian Evidence Act, presumption whereof enjoins satiation by conclusive evidence of the indispensable statutory tenet of the mother of of the petitioner herein and the respondent herein holding a valid marriage, whereas, with the aforesaid tenet being amiss rt hereat, there is obviously no occasion hereat to rebut the presumption constituted under Section 112 of the Act by this Court ordering for the holding of the DNA test.
8. True it is of the holding of the DNA test would firmly rests an entrenched conclusion qua the factum of the respondent herein being the biological father of the petitioner herein, nonetheless, the endeavour hereat is belated also its standing strived hereat alone whereas it was enjoined to be strived earlier either before the learned trial Court or before the learned Sessions Judge, Chamba, renders the belated concert hereat to be for reasons assigned hereinabove to be a mere ploy or a contrivance of the petitioner hereat. Also indubitably though a plenary jurisdiction stands vested in this Court under Section 482 of the Cr.P.C. to order for the holding ::: Downloaded on - 15/04/2017 20:45:27 :::HCHP 13 of a DNA test for determining the paternity of the petitioner herein besides for reversing the impugned rendition of the .
learned Sessions Judge, Chamba, yet again with lack of the apposite endeavours therebefore by the petitioner herein besetting hence a constraint upon the learned Sessions Judge to record an order for the holding of a DNA test for of determining the paternity of the petitioner herein besides obviously his not holding the apposite material to pronounce rt qua the respondent herein being the biological father of the petitioner herein, renders the endeavour hereat for the purpose aforesaid tantamounting to collection of evidence by this Court for the petitioner for facilitating his claim for maintenance from the respondent herein. Also countenancing of the aforesaid endeavour by this Court would sequel an in-sagacious order from this Court of its proceeding to reverse the well reasoned findings of the learned Sessions Judge. In aftermath, with there existing ample and abundant proof in display of the respondent herein never holding the mother of the petitioner herein to sexual intercourse, renders the findings arrived at by the learned Sessions Judge to not suffer from any mis-
appreciation and non appreciation of the apposite material on ::: Downloaded on - 15/04/2017 20:45:27 :::HCHP 14 record. Consequently, the instant petition is dismissed as also Cr.MP No. 1023 of 2011 preferred hereat by the .
petitioner herein for seeking permission of this Court to order for the holding of the DNA test of the parties at contest stands dismissed. In sequel, the order of the learned Sessions Judge, Chamba is affirmed and maintained. All of pending applications also stand disposed of.
rt (Sureshwar Thakur)
4 th
July, 2016 Judge.
(jai)
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