Himachal Pradesh High Court
Dhani Ram Bhatia vs Kalawati And Another on 27 July, 2015
Author: Rajiv Sharma
Bench: Rajiv Sharma
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MMO No. 216 of 2015
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Date of Decision: 27.07.2015
Dhani Ram Bhatia ....Petitioner.
Vs.
Kalawati and another. .....Respondents.
_____________________________________________________________________
of
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge
Whether approved for reporting?1 Yes
For the petitioner:
rt Mr. Ashwani Kaundal, Advocate.
For the respondents: Nemo.
Rajiv Sharma, J.:
This petition is instituted against the order, dated 16.04.2015, rendered by the learned Sessions Judge, Bilaspur, H.P. in Criminal Revision No. 8/10 of 2013.
2. Key facts necessary for the adjudication of this petition are that the respondents have moved an application under Section 125 Cr. P.C. before the learned Judicial Magistrate, 1st Class, Ghumarwin, District Bilaspur, H.P. for the grant of maintenance. The same was allowed on 16.06.2001. The respondent No. 1 was awarded a sum of Rs. 400/- per month towards maintenance and the 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes ::: Downloaded on - 15/04/2017 18:38:39 :::HCHP 2 respondent No. 2 was granted a sum of Rs. 250/- per month from the date of order, i.e., 16.06.2001. The respondents have filed a Cr. M.A. .
No. 78/4 of 2005/04 under Section 127 Cr. P.C. for enhancement of maintenance amount.
3. The application was contested by the petitioner. The learned Judicial Magistrate, 1st Class, Ghumarwin, District Bilaspur, of H.P. allowed the application on 31.01.2013 and enhanced the amount of maintenance in the sum of Rs. 1400/- per month to be rt paid to respondent No. 1 and Rs. 1100/- per month to be paid to respondent No. 2. The petitioner filed a Criminal Revision No. 8/10 of 2013 against the order, dated 31.1.2013 before the learned Sessions Judge, Bilaspur, H.P. He dismissed the same on 16.04.2015. Hence this petition.
4. Mr. Ashwani Kaundal, learned counsel for the petitioner has vehemently argued that the Courts below have misconstrued and misread the statements of the witnesses. According to him, the respondent No. 1 was earning handsome amount of Rs. 6000-7000/-
per month from selling milk and stitching clothes and the respondent No. 2 was also earning a sum of Rs. 6000/- per month. He also contended that the application preferred by his client for conducting DNA test of paternity of respondent No. 2 was wrongly dismissed by the learned Sessions Judge, Bilaspur, H.P. ::: Downloaded on - 15/04/2017 18:38:39 :::HCHP 3
5. I have heard the learned counsel for the parties and gone through the judgments carefully.
.
6. The respondents No. 1 and 2 were only awarded a sum of Rs. 400/ and Rs. 250/- per month, respectively towards maintenance vide order, dated 16.06.2001. AW-1 Smt. Kalawati has testified that in the year, 2001, the respondents were awarded a sum of Rs. 650/-
of per month towards maintenance. The respondent No. 2 was pursuing her studies in Master of Arts. A sum of Rs. 4000/- to Rs. 5000/- was rt required for her expenses. She was studying at Shimla. The prices have increased since 2001. The income of petitioner has also increased. He was working as First Grade, Motor Mechanic. He was in Government job. He was earning Rs. 20,000/- per month.
According to her, she had no source of income. She denied that she had two buffaloes. She denied that she was earning by selling milk.
She also denied that she was earning Rs. 5000/- to Rs. 6000/- per month by doing tailoring work. She also denied that the petitioner was working as labourer in the factory.
7. AW-2 Sh. Kamal Nain deposed that respondent No. 2 was studying at Shimla. They have no source of income. AW-3 W. Ravi Shankar has deposed that the salary of the petitioner in the month of March, 2009 was Rs. 32,347/-. He was working as Senior Mechanic in the Company. He retired on 31.01.2011. He was getting pension to ::: Downloaded on - 15/04/2017 18:38:39 :::HCHP 4 the tune of Rs. 6,475/- per month. He has proved Ex. RW3/A to Ex.
RW3/D. .
8. The petitioner has appeared as RW-1. According to him, the respondent No. 1 was living in adultery. Respondent No. 2 was not his daughter. The respondent No. 2 was serving in Computer Centre and her salary was Rs. 6,000/- and the respondent No. 1 of used to earn Rs. 100/- per day by selling the milk. He was suffering from prostate cancer and was undergoing treatment from CMC, rt Banglure, for which he had to incur Rs. 6000/- per month. He has constructed a residential house, for which he has spent a sum of Rs.
4 - Rs. 5 lac.
9. RW-2 Sh. Ganga Ram was not aware that Smt. Kalawati has buffaloes. He was told by petitioner that he was suffering from cancer. He has borrowed a sum of `50,000/- from him. In his cross-
examination, he has admitted that the petitioner was his relative.
10. RW-3 Sh. Shamsher Singh deposed that he was engaged as Contractor for raising the construction of residential house by the petitioner. He had to pay him Rs. 1,20,000/-. He told him that he was suffering from cancer. He is also relative of petitioner.
11. RW-4 Sh. Rattan Singh deposed that respondent No. 1 had two three buffaloes. She used to sell 5-6 litters of milk. Her income was Rs. 100/- per day. She was working as a tailor.
::: Downloaded on - 15/04/2017 18:38:39 :::HCHP 512. RW-5 Sh. Sunka Ram desposed that petitioner and respondent No. 1 were husband and wife. The respondent No.1 was .
working as tailor. She was also having two buffaloes. She was earning a sum of Rs. 6000/- - Rs. 7000/- per month. He has admitted that the respondent No. 2 was unmarried. She was pursuing her studies in Master of Arts. She required money to of pursue her studies. The petitioner has failed to prove that the respondent No. 1 was having buffaloes and was working as tailor.
rt Petitioner was working as First Grade Motor Mechanic. He was in Government job. His salary for the month of March, 2009 was Rs.
32,347/-. His pension is Rs. 6,475/-. His salary and pension have been duly proved by AW-3 W. Ravi Shankar.
13. Petitioner has made reckless allegations against the respondents. He has made serious allegations against respondent No. 1 that she was leading life of adultery. He has also doubted the paternity of respondent No. 2. He has moved an application for proving the paternity of respondent No. 2, which has rightly been rejected by the Court. He cannot be permitted to rake up these issues in an application filed under Section 127 Cr. P.C. RW-2 Sh. Ganga Ram is not aware that respondent No. 1 has kept buffaloes. Hoshiar Singh to whom, according to RW-5 the respondent No. 1 had been selling milk, has not been produced. RW-5 has not disclosed the ::: Downloaded on - 15/04/2017 18:38:39 :::HCHP 6 names of the women, who were getting the clothes stiched from the respondent No.1. RW-2 Sh. Ganga Ram and RW-3 Sh. Shamsher .
Singh are relatives of petitioner. Case of the petitioner was that he was suffering from prostate cancer. However, he has not placed any medical evidence on record to establish this fact. RW-3 Sh. Shamsher Singh, though stated that a sum of Rs. 1,20,000/- was to be paid to of him by the petitioner, but there is nothing in writing to this effect.
Similarly, taking of loan by the petitioner from RW-2 Sh. Ganga Ram rt has not been substantiated. RW-2 Sh. Ganga Ram has not mentioned the date, month and year when the amount was advanced by him to the petitioner. Petitioner has not led any evidence when the house was constructed by him. The respondents were awarded only a sum of Rs. 650/- vide order, dated 16.06.2001. There is manifold increase in the prices of goods. Petitioner has not led any evidence to prove that respondent No. 1 was working in Shimla. The respondent No. 1 was forced by the petitioner to live in her parental house. The family could not survive with a meagre amount of Rs. 650/-. The Courts below have correctly appreciated the evidence. The application preferred by the petitioner for conducting DNA test has rightly been rejected by the Court below.
14. It would be apposite to state that the Judicial Magistrate, 1st Class, Court No. 1, Ghumarwin, District Bilaspur, H.P. has made ::: Downloaded on - 15/04/2017 18:38:39 :::HCHP 7 the order applicable from the date of passing of the order, i.e., 31.01.2013. The Court is of the considered view that enhanced .
compensation was to be paid from the date of filing of Cr.M.A. No. 78/4 of 2004/04, i.e., 17.12.2003. Moreover, the respondents have remained in destitue for 10 years. Respondent No.2 is legitimate child since she was born during the lawful wedlock.
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15. The learned Single Judge of Madras High Court in Subbayal Vs. Muthuswamy 1986 Cri. L.J. 692 has held that it is the rt duty of the Court to see that the amount of maintenance is not only the same in nominal terms but remains the same in real terms. In the case of salaried people, the restoration of the salary to the real terms is achieved by way of grant of dearness allowance.
Enhancement of maintenance on account of rise of cost of living index would serve the same purpose and does not bring about any modification of the real amount and does not require any special change in the circumstances of the people. The learned Single Judge has held as under:
"4. The amount was fixed at Rs. 50/- per month taking into consideration the fact that the husband was in addition to his salary as cooly, having an approximate annual income of Rs. 5000/- as his share from the lands. At that time the cost of living index was 286. (January 1976). Now the cost of living index is 558 (January 1984). Obviously the salary as well as the land income of the husband ::: Downloaded on - 15/04/2017 18:38:39 :::HCHP 8 have increased nominally. As far as wife is concerned, though the amount of maintenance is nominally the same, it does not provide the same .
purchasing power. Therefore, what she seeks is in reality not alteration of her maintenance in real terms, but only alteration of the maintenance in nominal terms so as to restore the real amount of maintenance earlier granted. Therefore, the change of circumstances pleaded is only that the nominal amount filed by the Court does not serve the purpose of for which it was fixed, since she is not able to get with the same amount of Rs. 50/- the same quantity of goods as in the year 1976. This is a real change in rt the circumstances which the Court has necessarily to take into account. It is the duty of the Court to see that the amount of maintenance is not only the same in nominal terms but remains the same in real terms. In the case of salaried people, the restoration of the salary to the real terms is achieved by way of grant of dearness allowance. Enhancement of maintenance on account of rise of cost of living index would serve the same purpose and does not bring about any modification of the real amount and does not require any special change in the circumstances of the person. As pointed out, the simple fact that the nominal amount does not represent the same real amount as granted, is a sufficient change in the circumstances."
16. Their Lordships of the Hon'ble Supreme Court in Sau Suman Narayan Niphade and another Vs. Narayan Sitaram Niphade and another 1995 Supp. (4) Supreme Court Cases 243 have held that whether enhanced maintenance is to be allowed from ::: Downloaded on - 15/04/2017 18:38:39 :::HCHP 9 the date of the application or from the date of order is within the discretion of the Court and merely because the husband has incurred .
liability to pay instalments by obtaining loans is no ground for denying maintenance to the wife and minor child. Their Lordships have held as under:
"1. This is a wife's appeal questioning the order of the learned Single Judge of the High court of directing that the maintenance should be paid from the date of the order and not the date of the application as allowed by the courts below. The only reason why the rt High court interfered in revision was that husband's salary was Rs 1285.55p. and his carry-
the home pay packet was Rs 506. 00 and therefore it thought it would be unjust to compel him to pay maintenance of rs 400 per month. It is a matter of discretion of the court whether to allow enhanced maintenance from the date of the application or from the date of the order. It appears that the initial maintenance was fixed at Rs. 50. 00 for the wife and Rs. 100. 00 per month for the son, which was increased to Rs. 175. 00 and Rs. 225. 00 respectively, presumably because of the increase in the cost of living as well as the fact that the son was old enough to go to school and the wife would have to incur additional expenses on his education. It appears that the husband had incurred liability to pay instalments by obtaining loans, but that is no reason why the wife and the minor child should be denied maintenance which is just sufficient for keeping body and soul together. We think that this was not a fit case in which the High court should have interfered in revision. Therefore,quite apart from the question whether or not ::: Downloaded on - 15/04/2017 18:38:39 :::HCHP 10 a second revision could lie to the High court we do not see how we can allow this order to stand because there was no justification for interfering with the .
discretion exercised by the two courts below for good reason."
17. The learned Single Judge of Orissa High Court in Prafulla Kumar Panda Vs. Smt. Amari Kumari Panda, 1996 Cri.
of L.J. 553 has held that expression "change in circumstances" would include rise in cost of living and also amounts to change in existing circumstances. The learned Single Judge has held as under:
rt "7. Is there no change in the existence of circumstances of a party with the passage of time when the cost of living goes up ? This question directly came up for consideration before the Bombay High Court in State v. Janakibai, AIR 1956 Bombay 432. A learned Single Judge has held that one of the circumstances which governs award of maintenance obviously is the cost of living and if the cost of living has gone up then there is a change in the circumstances of the wife, which enables her to ask for enhancement of the maintenance. The same view was taken by the Madras High Court in Subbayal v.
Muthuswamy, 1986 Crl.L.J. 692. In that case, the wife has granted maintenance in the year 1976 at the rate of Rs. 50/- per month payable by her husband. In 1981, she filed a petition for enhancement of the maintenance to Ra. 200/- per month on the ground of rise in the cost of living index. The Magistrate rejected the petition of the wife by accepting the plea of the husband that there was no change in the circumstances of the parties. A learned Single Judge ::: Downloaded on - 15/04/2017 18:38:39 :::HCHP 11 set aside the order of the Magistrate and accepted the plea of the wife that she was entitled to enhancement of maintenance on account of rise of cost of living .
index.
8. Now the facts of the case reveal that as per the orders passed by the learned Magistrate in 1989, the Opposite Party was entitled to monthly allowance of Rs. 125/-. The purchasing power which was in 1989 has not remained static. With the time progressing, it has eroded and affected the living of standard of opposite party resulting in change in the existence of her circumstances. Accordingly, the grievance of the Opposite Party that the monthly rt allowance of Rs. 125/- .which was granted to her in the year 1989 is insufficient for her maintenance in 1992 was rightly entertained and accepted by the learned Magistrate."
18. The learned Single Judge of Rajasthan High Court in Dhan Raj Vs. Kishni and another 1998 Cri. L.J. 1312 has held that fact of inflation, resulting in fall in purchasing power of money and consequent rising cost of commodities can be taken for enhancing maintenance. The learned Single Judge has held as under:
"7. I have carefully considered the arguments of both the parties. Inflation is an universal phenomena adversely effecting the purchasing power of the currency and thereby raising the prices of commodities. It is well established that the entire human society is a creation of mankind. Values, acts and omissions of the human beings which are responsible for creating preservation or ::: Downloaded on - 15/04/2017 18:38:39 :::HCHP 12 adversely effecting the human society or any part thereof, or any system thereof are manifestations of the lives and personal as well as collectively.
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Therefore, so long life and personal liberty continues to be protected by Article 21 of the Constitution and so long the Courts are obliged to act as custodians of the life and personal liberty of the human beings under Article 21 of the Constitution, the judicial notice of all those acts and omissions which are themselves a consequence of life and personal liberty and which of are concerned with preservation, control, regularisation and deprivation of life and personal liberty must be taken judicial notice by the Courts. rt Section 114 of the Evidence Act gives ample authority to the Courts to take judicial notice of the facts, regard being had to common course of nature events, human conduct and public and private business in their relation to the facts of the particular case. The power to take judicial notice of facts in accordance with Section 114 of the Evidence Act can be curtailed only by expressed provision of law and not otherwise. Section 56 of the Evidence Act provides that facts judicially noticeable need not be proved. Section 57 of the Evidence Act makes it obligatory on the part of the Court to take judicial notice of the facts mentioned in Clause (1) to clause (13) of Section 57. There is nothing in Section 57 to indicate that a Court cannot take judicial notice of facts, which are not covered by Clause (1) to Clause (13) of Section 57. Therefore, so far as the power of the Court to lake judicial notice of the facts of the case is concerned, Section 57 and Section 114 of the Evidence Act confer two different kinds of powers. The distinction between Section 57 and Section 114 of the Evidence Act is this that if under Section 57 of the Evidence Act, relevant fact is ::: Downloaded on - 15/04/2017 18:38:39 :::HCHP 13 covered by one or more of the thirteen clauses of Section 57, then the Court is under a legal obligation to take judicial notice of the fact subject to the .
conditions laid down in Section 57 itself. On the other hand Section 114 of the Evidence Act does not make it obligatory on the part of the Court to take judicial notice of any fact, but empowers the Court to take judicial notice of all those facts, which the Court may presume to have happened regarding being had to the common course of natural events, human conduct and of public and private business in relation to the fact of the particular case. Inflation, resulting in rise of prices gradually, fall in the purchasing of the currency and rt consequent deprivations of various kind to persons whose income is limited are facts, of which judicial notice can be taken under Section 114 of the Evidence Act. I, therefore, do not find any force in the submission that the judicial notice of inflation and rising cost of commodities cannot be taken by the Courts unless evidence is produced before it to prove the same.
19. The learned Single Judge of Calcutta High Court in Manik Chandra Ankure Vs. State of West Bengal & Anr. 2004(1) Crimes 547 has held that the object of Section 125 Cr. P.C. was to provide maintenance in order to prevent starvation and vagrancy. The learned Single Judge has further held that in a petition under Section 125 Cr. P.C., Magistrate would not be justified in directing DNA test for determination of paternity of child. The learned Single Judge has held as under:
"6. I have heard the learned Advocates of ::: Downloaded on - 15/04/2017 18:38:39 :::HCHP 14 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 of 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 rt 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 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."
20. Mr. Ashwani Kaundal, learned counsel for the petitioner has vehemently argued that the learned Judicial Magistrate, 1st Class, Ghumarwin, District Bilaspur, H.P. has granted more ::: Downloaded on - 15/04/2017 18:38:39 :::HCHP 15 maintenance than claimed for. There is no merit in his contention. It is open to the Court to grant more maintenance than claimed for due .
to changed circumstances.
21. The learned Single Judge of Andhra Pradesh High Court in S. Brahmanandam Vs. S. Rama Devi and another 2007 Cri.
L.J.811 has held that the Court can enhance or reduce the of maintenance amount on the proof of change of circumstances.
Hence, it cannot be said that the Court has got no power to grant rt maintenance more than the amount claimed in the petition for the period subsequent to the amendment of Section 125 Cr. P.C. in 2001 because Section 127 Cr. P.C. empowers the Court to enhance the maintenance granted under Section 125 Cr. P.C. on proof of a change in the circumstances. Section 127 Cr. P.C. does not mandate that an application is required to be filed to enhance the maintenance amount, after the amendment of 2001 in Section 125 Cr. P.C. The learned Single Judge has held as under:
"20. Firstly it has to be seen whether the learned Sessions Judge has got power to award more than the amount claimed in the application towards maintenance. The Apex Court very recently in Savitaben Somabhai Bhatiya v. State of Gujarat and Ors. held that in an application filed underSection 125 Cr.P.C. at the time when maximum limit of maintenance was prescribed, the request for enhancement over and above the maximum amount fixed under Section ::: Downloaded on - 15/04/2017 18:38:39 :::HCHP 16 125 Cr.P.C. prior to the amendment, can be considered and that the plea that original application has not been amended is too technical .
to be raised in view of the fact that Section 127 Cr.P.C. permits increase in the quantum. A similar contention as raised in this case was raised before the Apex Court. In the cited case, the application under Section 125 CriP.C. was filed on 1-9-1995. The Magistrate granted maintenance @ Rs. 350/- per month by his order, of dated 31-7-1999. The High Court enhanced the quantum awarded to the child from Rs. 350/- to Rs. 500/- with effect from the order passed by rt the Magistrate. The said amount of maintenance was enhanced by the Apex Court. Considering the peculiar facts of the case, the Apex Court rejected the contention of the learned Counsel therein that as there was no amendment made to the claim petition for the enhancement the Court cannot grant more than the amount claimed, observing that such a plea is too technical. Therefore, in view of the cited decision of the Apex Court, it cannot be said that the Sessions Judge has got no power to grant maintenance more than the amount claimed in the petition for the period subsequent to the amendment of Section 125 Cr.P.C. as Section 127 Cr.P.C. empowers the Court to enhance the maintenance granted under Section 125 Cr.P.C. on proof of a change in the circumstances. Section 127 Cr.P.C. does not mandate that an application is required to be filed to enhance the maintenance amount. The only requirement is on proof of change of circumstances. The Court can enhance or reduce the maintenance amount as the proof of change of ::: Downloaded on - 15/04/2017 18:38:39 :::HCHP 17 circumstances. Here in the instant case, at the time of giving evidence the respondent-wife categorically stated about the income of her .
husband-petitioner herein and also the requirement of at least Rs. l,000/- per month for her maintenance. The learned Sessions Judge considered the evidence adduced and also admissions made by the petitioner-husband and enhanced the maintenance to Rs. l,000/-. It will be useful to extract the relevant portion of the of order of the learned Sessions Judge, which reads as follows:
rt In the evidence, the respondent has clearly admitted that he is getting gross salary of Rs. 18,485/- and he is having three storeyed building in Kothi, Hyderabad and 1000 sq.yards of site on which mulgies are constructed. He also admitted that he is having LIG quarter and he is also getting rents from the mulgies constructed in 1000 sq. yards at Ramachandrapuram. It is, therefore, clear from his evidence that the respondent is having substantial properties and getting rents and also drawing his gross salary of Rs. 18.485/-. The revision petitioner claimed maintenance of Rs. 1000/- per month only. Considering the 'standard of life of the respondent, present cost of living and other circumstances, I feel the claim of the revision petitioner for Rs. 1000/- per month towards her maintenance is just and reasonable. The revision petitioner is therefore, entitled to maintenance of Rs. 1,000/- per month with effect from 24-9-2001 'as prayed for.
From the above said order, it is clear that the respondent himself admitted about ::: Downloaded on - 15/04/2017 18:38:39 :::HCHP 18 his getting gross salary of Rs. 18,485/- per month, having three storeyed building in Kothi, Hyderabad besides 1000 sq. yards of site in .
which mulgles were constructed and getting rents from the mulgies besides having one LIG quarter at Ramachandrapuram. The learned Judge gave categorical finding that the husband is having substantial properties and getting rents besides getting gross salary of Rs. 18,485/-. Under these peculiar circumstances of of the case and also considering the standard of life of the husband and the cost of living and other circumstances, the learned Sessions Judge rt enhanced the amount from Rs. 400/- to Rs. l,000/- per month giving effect from 24-9-2001 the date on which the maximum prescribed is deleted from Section 125 Cr.P.C. I do not find any perversity in appreciation of evidence by the learned Sessions Judge warranting interference by this Court by way of revision. However as the learned Counsel contended that the petitioner is now retired and the respondent is gainfully employed and is capable to maintain herself. I consider it necessary to give liberty to the petitioner herein to approach the learned Magistrate and file an application for alteration or cancellation of the amount granted and to prove that the respondent-wife is capable to maintain herself and there is no need to order maintenance under Section 125 Cr.P.C. The learned Sessions Judge enhanced the costs from Rs. 500/- to Rs. 5,000/-. As the petitioner approached the several Courts, I do not find that the Sessions Judge is not justified in granting Rs. 5,000/- towards costs. Therefore, in my ::: Downloaded on - 15/04/2017 18:38:39 :::HCHP 19 considered view, there is no need to interfere with any portion of the impugned order. Thus, this point is held accordingly."
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22. The Apex Court in Badshah Vs. Urmila Badshah Godse and another (2014) 1 Supreme Court Cases 188 has held that the Court must give effect to that construction which will be responsible for smooth functioning of the system for which the statute has been of enacted. The provision as to maintenance is a social justice legislation and distinct approach to be adopted while dealing with rt cases under the said provision. The Apex Court has held as under:
"13. On this basis, it was pleaded before us that this matter be also tagged along with the aforesaid case. However, in the facts of the present case, we do not deem it proper to do so as we find that the view taken by the courts below is perfectly justified. We are dealing with a situation where the marriage between the parties has been proved.
However, the petitioner was already married. But he duped the respondent by suppressing the factum of alleged first marriage. On these facts, in our opinion, he cannot be permitted to deny the benefit of maintenance to the respondent, taking advantage of his own wrong. Our reasons for this course of action are stated hereinafter.
13.1 Firstly, in Chanmuniya case, the parties had been living together for a long time and on that basis question arose as to whether there would be a presumption of marriage between the two because of the said reason, thus, giving rise to claim of maintenance under Section 125,Cr.P.C. by ::: Downloaded on - 15/04/2017 18:38:39 :::HCHP 20 interpreting the term "wife" widely. The Court has impressed that if man and woman have been living together for a long time even without a valid .
marriage, as in that case, term of valid marriage entitling such a woman to maintenance should be drawn and a woman in such a case should be entitled to maintain application under Section 125,Cr.P.C. On the other hand, in the present case, respondent No.1 has been able to prove, by cogent and strong evidence, that the petitioner and of respondent No.1 had been married each other. 13.2 Secondly, as already discussed above, when the marriage between respondent No.1 and rt petitioner was solemnized, the petitioner had kept the respondent No.1 in dark about her first marriage.
A false representation was given to respondent No.1 that he was single and was competent to enter into martial tie with respondent No.1. In such circumstances, can the petitioner be allowed to take advantage of his own wrong and turn around to say that respondents are not entitled to maintenance by filing the petition under Section 125,Cr.P.C. as respondent No.1 is not "legally wedded wife" of the petitioner? Our answer is in the negative. We are of the view that at least for the purpose of Section 125 Cr.P.C., respondent No.1 would be treated as the wife of the petitioner, going by the spirit of the two judgments we have reproduced above. For this reason, we are of the opinion that the judgments of this Court in Adhav and Savitaben cases would apply only in those circumstances where a woman married a man with full knowledge of the first subsisting marriage. In such cases, she should know that second marriage with such a person is impermissible and there is an embargo under the ::: Downloaded on - 15/04/2017 18:38:39 :::HCHP 21 Hindu Marriage Act and therefore she has to suffer the consequences thereof. The said judgment would not apply to those cases where a man marriages .
second time by keeping that lady in dark about the first surviving marriage. That is the only way two sets of judgments can be reconciled and harmonized.
13.3 Thirdly, in such cases, purposive interpretation needs to be given to the provisions of Section 125,Cr.P.C. While dealing with the of application of destitute wife or hapless children or parents under this provision, the Court is dealing with the marginalized sections of the society. The rt purpose is to achieve "social justice" which is the Constitutional vision, enshrined in the Preamble of the Constitution of India. Preamble to the Constitution of India clearly signals that we have chosen the democratic path under rule of law to achieve the goal of securing for all its citizens, justice, liberty, equality and fraternity. It specifically highlights achieving their social justice. Therefore, it becomes the bounden duty of the Courts to advance the cause of the social justice. While giving interpretation to a particular provision, the Court is supposed to bridge the gap between the law and society.
18. The Court as the interpreter of law is supposed to supply omissions, correct uncertainties, and harmonize results with justice through a method of free decision "libre recherch sceintifique" i.e. "free Scientific research". We are of the opinion that there is a non-rebuttable presumption that the Legislature while making a provision like Section 125 Cr.P.C., to fulfill its Constitutional duty in good faith, had always ::: Downloaded on - 15/04/2017 18:38:39 :::HCHP 22 intended to give relief to the woman becoming "wife" under such circumstances. This approach is particularly needed while deciding the issues .
relating to gender justice. We already have examples of exemplary efforts in this regard. Journey from Shah Bano, 1985 AIR(SC) 945 to Shabana Bano, 2010 AIR(SC) 305 guaranteeing maintenance rights to Muslim women is a classical example.
20. Thus, while interpreting a statute the of court may not only take into consideration the purpose for which the statute was enacted, but also the mischief it seeks to suppress. It is this rt mischief rule, first propounded in Heydon Case, 1854 3 CoRep.7a,7b which became the historical source of purposive interpretation. The court would also invoke the legal maxim construction ut res magis valeat guam pereat, in such cases i.e. where alternative constructions are possible the Court must give effect to that which will be responsible for the smooth working of the system for which the statute has been enacted rather than one which will put a road block in its way. If the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation should be avoided. We should avoid a construction which would reduce the legislation to futility and should accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result. If this interpretation is not accepted, it would amount to giving a premium to the husband for defrauding the wife. Therefore, at least for the purpose of claiming maintenance under Section ::: Downloaded on - 15/04/2017 18:38:39 :::HCHP 23 125, Cr.P.C., such a woman is to be treated as the legally wedded wife."
.
23. Their Lordships of the Hon'ble Supreme Court in Shail Kumari Devi and another Vs. Krishan Bhagwan Pathak (2008) 9 Supreme Court Cases 632 have held that even after the amendment of 2001, an order for payment of maintenance can be made by a of Court either from the date of the order or where an express order is made to pay maintenance from the date of application, then the rt amount of maintenance can be paid from that date, i.e., from the date of application. Their Lordships have held as under:
"17. Bare reading of sub-section (1) of Section 125 leaves no room for doubt that if any person having sufficient means, neglects or refuses to maintain his wife who is unable to maintain herself or his legitimate (or illegitimate) child (children) unable to maintain itself (themselves), or his father, or mother, unable to maintain himself or herself, a Court, upon proof of negligence or refusal, order such person to pay maintenance to his wife or child (children) or parents, as the case may be. It is also clear that maximum amount which could be ordered to be paid was Rs.500/- p.m. which was clear from the expression "not exceeding Rs.500/- in the whole".
21. Again, there is no substantial change so far as the date of payment is concerned. Under sub- section (2) as originally enacted, it was provided that such maintenance could be made payable from the date of the order or if so ordered, from the date of application. Even after the amendment of 2001, an ::: Downloaded on - 15/04/2017 18:38:39 :::HCHP 24 order for payment of maintenance can be made by a Court either from the date of the order or where an express order is made to pay maintenance from the .
date of application, then the amount of maintenance can be paid from that date, i.e. from the date of application."
24. In Sujit Kumar Pandey Vs. Anjali Devi 2015 (2) HLR 625 (Jhark.), the Division Bench has held that while granting of maintenance under Section 125, no arithmetic formula can be adopted regarding the amount the wife was entitled for permanent rt alimony but the fact like status, their respective social needs and the financial capacity of the husband are to be considered by taking note of the fact that the maximum amount fixed for the wife should be such which will be enough for her to lead a reasonable and comfortable life considering her status and the standard of living she would have enjoyed had the parties led the conjugal life in normal circumstances. The Division Bench has held as under:
"13. Before adjudicating on the said issue it would be necessary to refer to Section 25 of the Hindu Marriage Act, 1955 which reads as follows:-
"25. Permanent alimony and maintenance.--- (1) Any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for ::: Downloaded on - 15/04/2017 18:38:39 :::HCHP 25 a term not exceeding the life of the applicant as, having regard to the respondent's own income and other property, if any, the income and other property .
of the applicant, the conduct of the parties and other circumstances of the case, it may seem to the Court to be just, and any such payment may be secured, if necessary, by a charge immovable property of the respondent.
(2) If the Court is satisfied that there is, a charge in the circumstances of either party at any of time after it has made an order sub-Section(1), it may at the instance of either party, vary, modify or rescind any such order in such manner as the Court rt may deem just.
(3) If the Court is satisfied that the party in whose favour an order has been made under this Section has remarried or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, it may at the instance of the other party vary, modify or rescind any such order in such manner as the Court may deem just."
14 It is true that no arithmetic formula can be adopted regarding the amount the wife, of the appellant, is entitled for permanent alimony but the fact like status, their respective social needs and the financial capacity of the husband are to be considered by taking note of the fact that the maximum amount fixed for the wife should be such which will be enough for her to lead a reasonable and comfortable life considering her status and the standard of living she would have enjoyed had the parties led the conjugal life in normal circumstances.
::: Downloaded on - 15/04/2017 18:38:39 :::HCHP 2615. It is apparent from the salary slip filed by the appellant that the gross salary of the appellant is Rs.61,989/-. In this context, learned .
counsel for the appellant has argued that appellant has to pay for the loans he has taken and in fact his take home salary is 1/3rd of the gross salary; that he has other liabilities as pointed out above and he has no other source of income; that the agricultural property is a joint property from which he gets Rs.3,000/- to 4,000/- per annum; that the of respondent has no liability whereas the appellant is saddled with the liabilities of looking after his aged parents, his mentally ill brother and has also rt to pay for the medicine of his aged parents and the education fees for the two daughters of his ill brother.
16. On the other hand it has been canvassed by the learned counsel for the respondent that she is residing with her old and aged father and she does not have any fixed source of income.
17. The plea that loan has been taken by the appellant and he has to pay the instalments to liquidated the loan and therefore, the same may be considered, is not acceptable to us. No paper or document has been filed to show that for what purpose the loan was taken. On the contrary it suggests that the appellant is solvent enough to pay the loans which he might have taken for getting benefit of tax concession and for creating future assets. The appellant is employed as an Inspector in the Railway Protection Force and he has ten years of service left and the prospects of the increments in the salary and promotion to a higher rank in future is natural consequence of ::: Downloaded on - 15/04/2017 18:38:39 :::HCHP 27 service. His gross salary is Rs.61,989/- p. m. and after deduction under the compulsory heads, his net pay is around Rs.53,000/- p .m. The .
respondent-wife has to maintain the standard of living which she would have been entitled to had the appellant maintained the conjugal relationship."
25. Their Lordships of the Hon'ble Supreme Court in of Bhuwan Mohan Singh Vs. Meena and others (2015) 6 Supreme Court Cases 353 have given the circumstances when maintenance is rt payable from the date of application. Their Lordships have held that the order of the High Court was justified in granting maintenance from the date of application. Their Lordships have further held that "sustenance" does not mean animal existence, but signifies leading life in similar manner as she would have lived in house of her husband. Husband has bounden duty to enable wife to live life with dignity according to their social status and strata. Their Lordships have held as under:
"16. In the present case, as we find, there was enormous delay in disposal of the proceeding underSection 125 of the Code and most of the time the husband had taken adjournments and some times the court dealt with the matter showing total laxity. The wife sustained herself as far as she could in that state for a period of nine years. The circumstances, in our considered opinion, required grant of maintenance from the date of application and by so granting the High Court has not committed any legal infirmity. Hence, we concur with the order of the High Court. However, we direct, as prayed by the learned counsel for the respondent, that he may be allowed to ::: Downloaded on - 15/04/2017 18:38:39 :::HCHP 28 pay the arrears along with the maintenance awarded at present in a phased manner. Learned counsel for the appellant did not object to such an arrangement being made. In view of the aforesaid, we direct .
that while paying the maintenance as fixed by the learned Family Court Judge per month by 5th of each succeeding month, the arrears shall be paid in a proportionate manner within a period of three years from today.
26. Their Lordships of the Hon'ble Supreme Court in of Goutam Kundu Vs. State of West Bengal and another, AIR 1993 Supreme Court 2295 have held that it is a rebuttable presumption of rt law under Section 112 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. Their Lordships have laid down the following principles for the permissibility of blood test to prove paternity:
"22. 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.
26. From the above discussion it emerges:-
(1) that courts in India cannot order blood test as a 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 ::: Downloaded on - 15/04/2017 18:38:39 :::HCHP 29 the husband must establish non-access in order to dispel the presumption arising under section 112 of the Evidence Act.
.
(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.
(5) No one can be compelled to give sample of blood for analysis"
of
27. The learned Single Judge of Madras High Court in Eswaran Vs. Pichayee and others 1998 Cri. L.J. 3976 have held that the parties cannot be compelled for subjecting themselves for rt blood test in maintenance proceedings. Their Lordships have held as under:
"30. No doubt, it is true that on 11-6-1990 Crl. M.P.No. 167 of 1989 filed by the petitioner was allowed. In pursuance of the said order, it is to be noted that the petitioner and the respondents were sent for the blood test. But, due to want of chemicals, the test was not conducted then. Subsequently, on receipt of a letter from the Forensic Science Department, again the petition was posted for enquiry. On 29-5-1991, on the date of the enquiry, as seen from the records, the petitioner was not present, when the matter was called in the forenoon. It was passed over and again in the afternoon the Magistrate called the matter. However, the petitioner was absent even in the afternoon. Therefore, the learned Judicial Magistrate had dismissed the application by giving reasons. The lower Court's order is as follows:-[ Vernacular matter omitted] ::: Downloaded on - 15/04/2017 18:38:39 :::HCHP 30
31. Admittedly, the above order dated 29-5- 1991 had not been challenged. The examination of the witnesses commenced from 6-2-1996 onwards .
and ended on 23-4-1996. During this period also the petitioner never took steps for blood group test. Therefore, it cannot be contended, in the light of the above fact situation, that the opportunity had been denied.
32. Moreover, as laid down by the Apex Court, the of parties cannot be compelled for subjecting themselves for blood test in the proceedings under Section 125, Cr.P.C. It is held in Goutam Kundu v. State of West Bengal as follows :-
rt From the above discussion it emerges:-
(1) that Courts in India cannot order blood test as a 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.
(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.(5) No one can be compelled to give sample of blood for analysis.
In view of what is stated above, the first ground urged by the learned counsel for the petitioner fails."
::: Downloaded on - 15/04/2017 18:38:39 :::HCHP 3128. The learned Single Judge of Madhya Pradesh High Court .
in Devesh Pratap Singh Vs. Srimati Sunita Singh AIR 1999 Madhya Pradesh 174 has held that the rule of evidence contained in Section 112 raises a mandatory presumption that a child born during wedlock, no matter when the child could be begotten, is the of legitimate issue of the husband of the mother and no adverse inference can be drawn against the wife in refusing to submit herself to blood test. The learned Single Judge has held as under:
rt "8. The Petitioner/husband seeks annulment of marriage on the ground of pregnancy per alium i.e. concealed pregnancy. It is not the case of the husband that the wife was already pregnant at the time of marriage because that would be a ground for voiding the marriage by a decree of nullity under Section 12(1)(d) of the Act. A decree of divorce under Section 13(1)(i) of the Act can be obtained only on the ground that other party to the marriage, after solemnization of the marriage, had voluntary sexual intercourse with any person other t ban his or her spouse. In the instant case, the main emphasis for seeking a decree of divorce by the husband is on the admission contained in the statement of wife in her cross-examination that after marriage when the husband visited her parents' place between 8-1-86 to ::: Downloaded on - 15/04/2017 18:38:39 :::HCHP 32 12-1-86 the wife was in menstrual period and could not have conceived. Relying on the above part of the .
statement of the wife, the argument sought to be built up is that the wife became pregnant due to illegitimate sexual connection with a person outside the wed-lock sometime after 12-1-86 when the menstrual period might have been over. The rule of of evidence contained in Section 112 of the Evidence Act raises mandatory presumption that a child born during wedlock, no matter when the child could be rt begotten, is the legitimate issue of the husband of the mother. The presumption can be dislodged by proof of non-access during the time of conception. The husband has admitted a consummation of marriage after it took place on 29-11-85 and also admitted access to each other between 29-11-85 to 12-1-1986.
The child born on 31-10-1986 could have been conceived as the husband and wife had access to each other between the above period. As held by the Supreme Court in Dukhtar Jahan v. Mohammad Farouq, AIR 1987 SC 1049, the sole ground that the child had been born in seven months 'time after the marriage leads to no conclusion that the child was conceived even before the marriage. Giving birth to a viable child after 28 weeks' duration of pregnancy is not biologically an improbable or impossible event.
9. The husband cannot derive much help ::: Downloaded on - 15/04/2017 18:38:39 :::HCHP 33 from the admission made by the wife in her cross-
examination that when the husband visited her .
while she was living in her parents' house between 8-1-1986 and 12-1-1986, she was in menstrual period. Merely because the wife states that she was in menstrual period at the time of visit of the husband, it cannot be conclusively held that she of could not have conceived earlier to the above period as a result of her access to the husband before the aforesaid period.
12. rt In view of the above medical opinion, the contention of the husband based on the alleged admission of the wife in her cross-examination about her menstrual period does not lead to a rebuttable presumption that the wife had conceived as a result of any illicit sexual intercourse with any person outside the wedlock. The presumption in Section 112 of the Evidence Act thus does not stand rebutted, in view of the admitted access between the husband and the wife during which she could have conceived and delivered a normal child.
14. It is no doubt true that in the matrimonial Court below the husband had filed an application seeking directions of the Court to the wife to submit herself and her child to blood test, but the wife refused on the ground that there is no one in her family to take her for the test to New Delhi. On the basis of evidence discussed above, and the ::: Downloaded on - 15/04/2017 18:38:39 :::HCHP 34 medical opinion, this Court does not find that any adverse inference can be drawn against the wife in refusing to submit herself to blood test."
.
29. The learned Single Judge of Karnataka High Court in Smt. Ningamma and another Vs. Chikkaiah AIR 2000 Karnataka 50 has held that to compel a person to undergo or to submit himself or herself to medical examination of his or her blood test or the like of without his consent or against his wish tantamounts to interference with his fundamental right of life or liberty. The learned Single Judge rt has held as under:
"21. Article 21 of the Constitution confers fundamental right of life and personal liberty. Life full of dignity and honour. In India chastity of the woman and paternity of the child have got their importance and pride places. No person in India will ever tolerate nor cherish or like to be called bastard nor a woman will tolerate to be called unchaste. Legitimacy of the paternity of a child or person and chastity of a woman are parts of the dignity and honour for each man and woman according to law. Article 21 confers right to life and provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. Right to life is not merely animal life. Right to life means life full of dignity and honour and right to live with honour and dignity. Right to personal liberty is also very important. To compel a person to undergo or to submit himself or herself to medical examination of his or her blood test or the like without his consent or against his wish tantamounts to interference with his fundamental right of life or liberty particularly even ::: Downloaded on - 15/04/2017 18:38:39 :::HCHP 35 when there is no provision either in the Code of Civil Procedure or theEvidence Act or any other law which may be said to authorise the Court to compel a person .
to undergo such a medical test as blood group test or the like against his wish, and to create doubt about the chastity of a woman or create doubt about the man's paternity. It will amount to nothing but interference with the right of personal liberty. Here as mentioned earlier, Section 112read with Section 4, Evidence Act really has the effect of completely of closing and debaring the party from leading any evidence with respect to the fact which the law says that to be the conclusive of proof of legitimacy and rt paternity of child covered by Section 112 of Evidence Act, except by showing that during the relevant period of time as referred to in Section 112 the parties to the marriage had no access to each other, the allowing of medical test to test the blood group to determine paternity would run counter to the mandate of Article 21 of the Constitution as well and inherent powers are not meant to be exercised to interfere with the fundamental right of life and liberty of the person nor to nullify or stultify any statutory provision.
22. In the case of Revamma v Shanthappa, this Court had an opportunity to consider this question of medical examination as to whether the Court can compel a person to undergo medical examination. His Lordship Hon'ble H.B. Datar, J., as he then was had been pleased to observe at paras 4 and 5 are as under:
"4. In a case where a party alleges that a person is impotent or suffering from other such incurable disease, it is for the person making such an allegation to prove the same. A party cannot be compelled to undergo medical examination. As stated ::: Downloaded on - 15/04/2017 18:38:39 :::HCHP 36 by the High Court of Gujarat, "There is no provision under the Hindu Marriage Act or the Rules framed thereunder, or in the Code of Civil Procedure, or by .
the Indian Evidence Act, or any other law which would show any power in the Court to compel any party to undergo medical examination".
A medical examination for ascertaining whether a person is insane or impotent are all cases in which unless by the law of the land a person can of be compelled to undergo medical examination, an order directing a person to medical examination would be clearly illegal and without jurisdiction. In P. Sreeramamurthy v P. Lakshmikantham, when an rt order was passed directing medical examination, it was held that there must be some statutory provision under which it would be open to the Court to compel medical examination of a party, thus restricting the enjoyment of personal liberty of the person. It was also held that in a case like this, it was not right to rely upon the general or inherent powers of the Court under Section 151 of the Civil Procedure Code. It may be rejected and that even medical examination is specifically provided as under the terms of the Indian Lunacy Act. In the absence of any provision, it is not competent to any party to compel the other party to undergo medical examination.
5. In the case of Ranganathan Chettiar, supra, it has been held that it is not open to the Court under Section 151 of the Code of Civil Procedure, to order a medical examination of a party against the consent of such party. To pass such an order is tantamout to treating a human being as a material object, which no Court should do under its inherent power. It is, thus, clear that it is not open to ::: Downloaded on - 15/04/2017 18:38:39 :::HCHP 37 the Court to invoke Section 151 of the Code of Civil Procedure to order a medical examination against his consent. In that view the order directing the .
medical examination of the petitioner is one which has been passed by the learned Judge in excess of the jurisdiction and the same is liable to be set aside".
23. Thus considered in my view the Court below committed an error of jurisdiction and acted of in excess of jurisdiction in directing the revision petitioners to subject themselves to medical examination for the blood test.
rt
24. I am further to observe that the Court below has observed that if the parties or any of them fails to appear before the District Surgeon for medical test on 4-12-1996, adverse inference shall be or may be drawn as per law. Here again the Court below acted illegally in making this observation, because Section 4 provides and mandates that when one fact is said to be conclusively proved on establishment of another relevant fact, then it completely shuts down and rules out every sort of evidence to disprove that fact. Adverse presumption under Section 114 may furnish a circumstantial evidence to dislodge the conclusive proof, then that will be running counter to the provisions of Section 112 read with Section 4 of the Evidence Act. The Court below observed illegally that failure or refusal to surrender to medical test will result in raising adverse presumption against the party when in view of Section 112 read with Section 4 of the Evidence Act, every sort of evidence, other than referred in Section 112 is barred and closed including presumptive circumstantial evidence under Section 114 and then the presumption ::: Downloaded on - 15/04/2017 18:38:40 :::HCHP 38 cannot be raised under Section 114 from the failure to surrender. What evidence can be lead so that conclusive presumption or doctrine of conclusive .
proof under Section 112 may not arise is of the fact that the parties to marriage had no access to each other or occasion to have access during the relevant period i.e., period when the child or person concerned whose paternity or legitimacy in question was conceived as per the latter part of Section 112 of the Evidence Act. Further threat to raise of such adverse presumption in such case will amount to interference with fundamental right under Article 21 of personal liberty by implicitly forcing an rt unwilling person to undergo the medical test i.e., blood group test against his wish and against his or her free will and liberty."
30. Their Lordships of the Hon'ble Supreme Court in Smt. Kamti Devi and another Vs. Posshi Ram AIR 2001 Supreme Court 2226 have held that Section 112 which raises a conclusive presumption about the paternity of the child born during the subsistence of a valid marriage, itself provides an outlet to the party who wants to escape from the rigour of that conclusiveness. 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 but the DNA test revealed that the child was not born to the husband, the conclusiveness in law would remain ::: Downloaded on - 15/04/2017 18:38:40 :::HCHP 39 unrebuttable. Their Lordships have held as under:
"4. The marriage between appellant Kamti .
Devi and respondent Poshi Ram was solemnised in the year 1975. For almost fifteen years thereafter Kamti Devi remained childless and on 4-9-1989 she gave birth to a male child (his name is Roshan Lal).
The long period in between was marked by internecine legal battles in which the spouses engaged as against each other. Soon after the birth of of the child it was sought to be recorded in the Register under the Births, Deaths and Marriages Registration Act. Then the husband filed a civil suit for a decree declaring that he is not the father of the child, as he rt had no access to the appellant-Kamti Devi during the period when the child would have been begotten.
11. We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancements with Dioxy 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 but 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 her spouse were living together during the time of conception. Hence the question regarding the degree of proof of non-access for ::: Downloaded on - 15/04/2017 18:38:40 :::HCHP 40 rebutting the conclusiveness must be answered in the light of what is meant by access or non-access as delineated above."
.
31. The learned Single Judge of Delhi High Court in Mrs. Teeku Dutta Vs. State and another AIR 2004 Delhi 205 has held that no party to legal proceedings can be subjected to any such test against his or her will. It infringes upon his or her right to privacy.
of The learned Single Judge has held as under"
"6. Additionally, it may be recalled that an inbuilt constitutional safeguard exists in the shape rt ofArticle 20(3) of the Constitution against a person accused of any offense being compelled to be a witness against himself. Right of privacy as enshrined in Article 21 of the Constitution also comes into play as and when any party to the proceedings is called upon to undergo any scientific test for the purpose of collecting evidence. It is a fairly settled position that no party to a legal proceedings can be subjected to any scientific test against his or her will as it has the effect of infringing upon his or her right to privacy."
32. The learned Single Judge of Allahabad High Court in Heera Singh Vs. State of U.P. and others, 2005 Cri. L.J. 3222 has held that merely because of advancement in science and technology, provisions of Evidence Act, enacted more than 100 years back, does not lose significance. Before DNA test is conducted, consent of person concerned is necessary. The learned Single Judge has referred to maxim "Pater est quem nuptiae demonstrant" (father is one whom ::: Downloaded on - 15/04/2017 18:38:40 :::HCHP 41 marriage indicates). The learned Single Judge has held as under:
"10. In view of the settled legal position, respondent .
No. 2 being guardian of respondent No. 3 having refused P.M.A. test, cannot be compelled for the same at the instance of the petitioner. The courts in the capacity of ad litum guardian of minor can also not direct such a test in the absence of direct and positive evidence of non-access as required by Section 112 of the Evidence Act The courts exercise protective of jurisdiction on behalf of an infant and it would be unjust and unfair to direct to such a test to assist a litigant to establish and prove his or her claim at the cost of an infant. The infant cannot be allowed to rt suffer because of his incapacity. The Apex Court in the case of Smt. Dukhtar Jahan v. Mohammed Farooq, reported in AIR 1987 SC 1049 has observed as under:
"12................................... This rule of law based on the dictates of justice has always made the courts incline towards upholding the legitimacy of a child unless the facts are so compulsive and clinching as to necessarily warrant a finding that the child could not at all have been begotten to the father and as such a legitimation of the child would result in rank injustice, to the father. Courts have always desisted from lightly or hastily rendering a verdict and that too, on the basis of slender materials, which will have the effect of branding a child as a bastard and its mother an unchaste woman. "
33. The learned Single Judge of Bombay High Court in Sunil Eknath Trambake Vs. Leelavati Sunil Trambake AIR 2006 Bombay 140 has held that DNA test to prove paternity of child can be ordered ::: Downloaded on - 15/04/2017 18:38:40 :::HCHP 42 only in exceptional and deserving cases and if it is in the interest of child, it cannot be directed as a matter of routine.The learned Single .
Judge has further held that order directing DNA test of child to prove his paternity is not necessary and the factum of paternity can be proved by other evidence also. The learned Single Judge has held as under:
of "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 rt 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 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 inGoutam 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 ::: Downloaded on - 15/04/2017 18:38:40 :::HCHP 43 best interest of a child.
7. In the present case, the respondent-wife is seeking DNA test not in the interest of the child .
but in her own interest to establish that the petitioner-husband lives in adultery and is, therefore, not entitled for divorce. The learned Judge has not recorded the reasons as to why DNA is indispensable and that the other evidence produce on record is not sufficient to draw an inference or adverse inference in favour or against of either of the parties. In the present case the documentary evidence in the form of birth certificate and school record is already produced on record rt which, according to the respondent, reflects that the petitioner and Meena are parents of child - Rupesh.
The learned Judge has not recorded its opinion in respect of that evidence. I do not wish to express any opinion on merits of the case. However, in my opinion, in the absence of sufficient reasons for holding the DNA test necessary, to resolve the controversy involved in the matter the impugned order is liable to be set aside."
34. Accordingly, there is no merit in this petition and the same is dismissed. The order, dated 31.01.2013, is modified only to the extent that enhanced maintenance payment shall be made from the date of filing of Cr.M.A. No. 78/4 of 2005/04, i.e., w.e.f. 17.12.2003. The arrears shall be deposited by the petitioner before the learned Trial Court within a period of eight weeks form today. No costs.
(Rajiv Sharma) Judge July 27, 2015 (bhupender) ::: Downloaded on - 15/04/2017 18:38:40 :::HCHP 44 .
of rt ::: Downloaded on - 15/04/2017 18:38:40 :::HCHP