Himachal Pradesh High Court
Ram Lal vs (By Sh. Jia Lal Bhardwaj on 2 March, 2022
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 2ND DAY OF MARCH, 2022
BEFORE
HON'BLE MR. JUSTICE VIVEK SINGH THAKUR
.
CIVIL MISC. PETITION MAIN (ORIGINAL) NO. 915 OF 2019
Between
RAM LAL,
SON OF SHRI DHANI RAM,
R/O VILLAGE SHARAN, POST OFFICE DEORI,
TEHSIL ANNI, DISTRICT KULLU,
H.P.
.....PETITIONER
(BY SH. JIA LAL BHARDWAJ, ADVOCATE)
AND
KUMARI PRIYANKA (MINOR),
D/O SHRI RAM LAL WRONGLY STATED SO IN THE APPEAL,
R/O VILLAGE SHARAN, POST OFFICE DEORI,
TEHSIL ANNI, DISTRICT KULLU,
H.P.
THROUGH HER MATERNAL UNCLE SH. SUNIL THAKUR,
SON OF SH. PREM CHAND,
RESIDENT OF VILLAGE JAHROHAN,
POST OFFICE DEORI, TEHSIL ANNI,
DISTRICT KULLU,
H.P.
....RESPONDENT
(BY SH. TEJASVI VERMA, ADVOCATE )
Decided on : March 2, 2022
Whether approved for reporting? Yes.
This petition coming on for hearing this day, the Court passed the
following:
ORDER
Respondent herein is plaintiff in a Civil Suit No.41-1 of 2013, filed by her in the Trial Court, seeking declaration that petitioner herein (defendant in the Civil Suit) is her biological father.
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For convenience, hereinafter the parties shall be referred to as 'plaintiff' and 'defendant', according to their status in the Civil Suit.
2. Plaintiff is not a child conceived and delivered out of a .
wedlock, but she was conceived on account of rape committed by defendant with her mother in June 2003, which was disclosed on 15.10.2003 during medical check-up of mother of plaintiff, who was minor at that time, and, resultantly, an FIR No.82 of 2003 was registered under Section 376 of Indian Penal Code (IPC) against defendant and after conclusion of trial therein, defendant was convicted under Section 376 IPC and the conviction was upheld by the High Court by dismissing the appeal preferred by the defendant.
3. Plaintiff was born on 1.3.2004. She had also filed an application under Section 125 of the Code of Criminal Procedure (for short 'Cr.P.C.'), through her maternal grandfather Prem Chand, against the defendant, for grant of monthly maintenance, wherein, on 27.10.2010, an application Cr.MA No.18-4 of 2011 was filed by defendant for obtaining blood samples of plaintiff as well as defendant for conducting DNA Test to ascertain paternity of the plaintiff. By referring to the pronouncements of the Supreme Court in Goutan Kundu v. State of W.B., (1993) 3 SCC 418; and Sharda v.
Dharmpal, (2003) 4 SCC 493, the Judicial Magistrate First Class, Ani, had dismissed the said application on 12.5.2011. The said application was opposed on behalf of plaintiff by relying upon the ::: Downloaded on - 02/03/2022 20:12:02 :::CIS CMPMO No.915/2019 ...3...
aforesaid pronouncements of the Supreme Court. The Magistrate had observed that direction to the parties to undergo DNA Test for determining paternity of plaintiff would amount to nothing but would .
have effect of branding the mother of plaintiff as an unchaste woman, which is not permissible to any Court.
4. Civil Suit filed by plaintiff has been dismissed by Civil Judge (Junior Division), Ani, on 1.11.2017, on the ground that there was no sufficient evidence to prove the case of plaintiff even to satisfy preponderance of probabilities. Against dismissal of the suit, plaintiff had preferred Appeal No.10 of 2018, which is pending adjudication before learned District Judge, Kinnaur at Rampur Bushehr.
5. During pendency of the appeal, plaintiff filed an Application CMA No.114-R/6 of 2018, under Sections 45 and 114 of the Indian Evidence Act, for issuing direction to the parties to undergo DNA Test. Learned Additional District Judge has allowed the application vide impugned order dated 15.10.2019, observing that the plaintiff has been able to make out a strong prima facie case to construe that DNA Test is of eminent need and plaintiff has been directed to deposit the requisite fee of analysis so that further direction in the matter may be issued.
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6. Aggrieved and dissatisfied with the impugned order, defendant has preferred present petition under Article 227 of the Constitution of India, .
7. It has been argued on behalf of the defendant that the plaintiff has filed to lead evidence during trial in the Civil Suit and the application has been filed by the plaintiff for filling up lacuna which is not permissible under law. It has further been contended that Courts have always desisted from directing the parties to undergo DNA Test and such direction can be issued only when there is eminent need to do so and, in present case, plaintiff was having sufficient opportunity to lead evidence to prove her case during trial, but she has failed to do so and case of the plaintiff is a case of no evidence and, therefore, there is no eminent need to subject the parties to DNA Testing.
Further that the Court cannot make roving enquiry to know the paternity of the child simply at the asking of a party that too at appellate stage.
8. It has been canvassed on behalf of defendant that earlier, during adjudication of proceedings initiated under Section 125 Cr.P.C., plaintiff had opposed similar request of the defendant, seeking direction to conduct DNA Test of the parties to ascertain the paternity of plaintiff and now plaintiff cannot be allowed to take U-turn by allowing the application filed by her for the same purpose.
According to the defendant, plaintiff, because of her tender age, is ::: Downloaded on - 02/03/2022 20:12:02 :::CIS CMPMO No.915/2019 ...5...
not able to understand pros and cons of conducting DNA Test, which may have adverse effect on the plaintiff and her mother and, therefore, prayer for setting aside the impugned order has been .
made, terming it illegal and irregular.
9. It has been contended on behalf of the defendant that the learned Additional District Judge has exceeded the jurisdiction by allowing the application, in exercise of the jurisdiction, which was not vested in him, causing grave injustice and prejudice to the defendant.
10. It has further been submitted on behalf of the defendant that parties cannot be ordered to undergo DNA Test in mechanical manner and DNA Test is not to be directed as a matter of routine but only in deserving cases, and in the instant facts, present case is not a deserving case for directing DNA Test, but the impugned order has been passed in mechanical manner.
11. It has also been contended on behalf of the defendant that FIR was lodged on 15.10.2003, whereas child was bron on 1.3.2004 and, thus, it is apparent on the face of record itself that defendant is not father of the plaintiff as no child can born within four months.
12. To substantiate the arguments advanced on behalf of the defendant, reliance has been placed on Maya v. Naresh Kumar, 2017(1) ShimLC 244; Shaik Fakruddin v. Shaik Mohammed Hasan and another, AIR 2006 Andhra Pradesh 48; Sunil Eknath ::: Downloaded on - 02/03/2022 20:12:02 :::CIS CMPMO No.915/2019 ...6...
Trambake v. Leelavati Sunil Trambake, AIR 2006 Bombay 140;
Goutam Kundu v. State of W.B., (1993) 3 SCC 418; Sharda v.
Dharmpal, (2003) 4 SCC 493; Banarsi Dass v. Teeku Dutta (Mrs.) .
and another, (2005) 4 SCC 449; Bhawani Prasad Jena v.
Convener Secretary Orissa State Commission for Women and another, (2010) 8 SCC 633; and Ashok Kumar v. Raj Gupta and others (2022) 1 SCC 20.
13. Learned counsel for the plaintiff has submitted that impugned order, passed by learned Additional District Judge, is non-
appealable order and to assail the same specific provision exists in the Code of Civil Procedure, under Order 43 Rule 1A, which provides right to challenge non-appealable orders in appeal against decrees.
Therefore, it has been contended that present petition under Article 227 of the Constitution of India is not maintainable for efficacious statutory remedy available to the defendant. It has been further contended that Order 41 Rule 27 CPC shall come into play lateron after receiving report of the Forensic Science Laboratory with respect to DNA Test, as, at this stage, there is no additional evidence available with the plaintiff and DNA Test cannot be conducted without orders of the Court and, therefore, application for expert evidence under Sections 45 and 114 of the Evidence Act has been rightly filed on behalf of the plaintiff. It has been further contended that for the nature of present case, it would not be possible to the Court to ::: Downloaded on - 02/03/2022 20:12:02 :::CIS CMPMO No.915/2019 ...7...
adjudicate the matter in absence of report of DNA Profiling Test of the parties and, therefore, learned Additional District Judge has rightly exercised the jurisdiction vested in him, by passing a very reasoned .
order which requires no interference.
14. To substantiate the plea raised on behalf of plaintiff, reliance has been placed on Gurdev Singh and another v. Mehnga Ram and another, (1997) 6 SCC 507; A. Andisamy Chettiar v. A. Subburaj Chettiar, (2015) 17 SCC 713; and Narayan Dutt Tiwari v.
Rohit Shekhar and another, (2012) 12 SCC 554.
15. Taking into consideration the submissions made by learned counsel for the parties, case law cited by them, and perusal of record, I am of the considered view that petition deserves to be dismissed for foregoing reasons.
16. Without going into the question of maintainability, as to whether, in view of provision of Order 43 Rule 1A CPC, petition under Article 227 of the Constitution of India is maintainable or not, petition is being decided on merit.
17. In pronouncements of the Courts, cited by learned counsel for defendant, issue as to whether parties shall be subjected to medical examination, including DNA Profiling Test so as to ascertain paternity of child, was considered and decided in the light of Section 112 of Indian Evidence Act, as in those cases father was resisting parenthood at the cost of bastardizing the child, and in the ::: Downloaded on - 02/03/2022 20:12:02 :::CIS CMPMO No.915/2019 ...8...
interest of the child and also for the reason that Rule of Law, based on 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, and for the reason that courts have always desisted from lightly or hastily rendering a verdict and that too, on the basis of slender materials,
18.
r to which will have the effect of branding a child as a bastard and its mother an unchaste woman.
In Ashok Kumar v. Raj Gupta and others (2022) 1 SCC 20, after taking into consideration Goutam Kundu v. State of W.B., (1993) 3 SCC 418; Kamti Devi v. Poshi Ram, (2001) 5 SCC 311; Sharda v. Dharmpal, (2003) 4 SCC 493; Banarsi Dass v.
Teeku Dutta, (2005) 4 SCC 449; Bhawani Prasad Jena v.
Convener Secretary Orissa State Commission for Women and another, (2010) 8 SCC 633; and Dipanwita Roy v. Ronobroto Roy, (2015) 1 SCC 365, the Supreme Court has reiterated the essence of these pronouncements, including judgments referred on behalf of defendant, observing that in circumstances where other evidence is available to prove or dispute the relationship, the Court should ordinarily refrain from ordering blood tests because such tests impinge upon the right of privacy of an individual and could also have ::: Downloaded on - 02/03/2022 20:12:02 :::CIS CMPMO No.915/2019 ...9...
major societal repercussions, and Indian law leans towards legitimacy and frowns upon bastardy and the presumption in law of legitimacy of a child cannot be lightly repelled. It has also been observed in these .
judgments that DNA test is not to be directed as a matter of routine but only in deserving cases and discretion of the Court must be exercised, after balancing interest of the parties, where a DNA test is needed for just decision in the matter and such a direction satisfies the test of eminent need.
19. In none of the aforesaid cases, request for DNA test was made by the child, muchless a child born on account of rape committed with his mother. Therefore, ratio of aforesaid decisions does not apply where a child moves the Court to determine his parentage as in such eventuality question of 'protective jurisdiction' of the Court of applicability of Section 112 of Indian Evidence Act does not arise.
20. Plaintiff is not a child born out of wedlock of defendant and mother of the plaintiff, but on account of rape by defendant with mother of plaintiff, for which defendant has been convicted, but he is denying paternity of plaintiff. No other evidence, muchless better evidence, to determine the issue in suit, with certainty, would be available except DNA Profiling Test, as even presumption under Section 112 of Indian Evidence Act is also not applicable in a case ::: Downloaded on - 02/03/2022 20:12:02 :::CIS CMPMO No.915/2019 ...10...
like present one. Therefore, case law referred by the defendant is not relevant in the facts and circumstances of present case.
21. Facts in present case are nearer to the facts involved in .
Narayan Dutt Tiwari v. Rohit Shekhar and another, (2012) 12 SCC 554, wherein, Supreme Court has upheld the directions passed by a Division Bench of Delhi High Court, whereby parties were directed to undergo DNA Profiling Test. The Court had also directed that in case there is defiance of the order, the Court shall be entitled to take police assistance and use of reasonable force for compliance of the order to conduct DNA Profiling Test. Certain points relevant to refer here, observed by the Court, are reiterated hereinafter:
(a) A distinction has to be drawn between "legitimacy"
and "paternity" of child.
(b) Section 112 of the Indian Evidence Act, 1872 is intended to safeguard the interest of child by securing his/her legitimacy and not to paternity.
(c) A child has a right to know the truth of his/her origin.
(d) The right of a child to know his biological roots can be enforced through reliable scientific tests and if interest of the child is best sub-served by establishing paternity of someone who is not the husband of his mother, the Court should not shut that consideration altogether; Indian law casts an obligation upon a biological father to maintain his child and does not disregard rights of an illegitimate child to maintenance.
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(e) Pronouncements of Supreme Court in Goutam Kundu v. State of W.B., (1993) 3 SCC 418;
Sharda v. Dharmpal, (2003) 4 SCC 493; and Bhawani Prasad Jena v. Convenor Secretary, .
Orissa State Commission for Women and another, (2010) 8 SCC 633, are not applicable in such situation.
(f) In case for denial of DNA Testing, the applicant suffers irreparable injury, then balance of convenience is also in favour of the applicant.
(g) Justice is best served by truth, and Justice is not served by impeding the establishment of truth. No injustice is done by conclusively establishing r paternity.
(h) A putative father may seek to avoid his paternity which science could prove; alternatively, to cling on to a status that science could disprove. In both cases selfish motives or emotional anxieties and needs may drive the refusal to co-operate in the scientific tests which the court has directed.
(i) When the conclusive scientific evidence is to the advantage of the child, then his legal status should not be determined on the basis of evidence proving perhaps but should be displaced by firm evidence on scientific analysis.
(j) the injunction directing DNA testing falls in the category of an order in aid of disposal of the suit and deciding the rights of the parties to the suit.
(k) Once the Court finds that there is eminent need for such a test, the police force or any other coercive ::: Downloaded on - 02/03/2022 20:12:02 :::CIS CMPMO No.915/2019 ...12...
action against the person defying the order is justified, as legal fiction under Section 114 of the Evidence Act with regard to it is not a reality but a fact which the said provision requires the Court to .
accept as reality and the Court is not bound to or obliged to draw such adverse inference.
(l) It is the rule of law in evidence that the best available evidence should be brought before the Court to prove a fact or the points in issue and the Court ought to take an active role in the proceedings in finding the truth and administering justice. Therefore, adverse inference from non-
compliance cannot be a substitute to the
r enforceability of a direction for DNA testing, as
valuable right of the applicant under the said direction, to prove his paternity through such DNA testing, cannot be taken away by asking the applicant to be satisfied with the comparatively weak "adverse inference".
(m) It is permissible to the Court to compel a person to undergo a medical test or to give a bodily sample for such test, once the Court has arrived at the conclusion that such test is necessary for complete and final adjudication of the issue involved in the case.
22. No doubt, in earlier round of litigation, in proceedings initiated under Section 125 Cr.P.C., application filed by defendant for conducting DNA Profiling Test was opposed on behalf of plaintiff and was dismissed by the Magistrate on 12.5.2011. Perusal of order ::: Downloaded on - 02/03/2022 20:12:02 :::CIS CMPMO No.915/2019 ...13...
passed by the Magistrate, dismissing the application, clearly depicts that the said application was dismissed by the Magistrate observing that DNA Profiling Test in those proceedings would be against the .
interest of child (plaintiff) and her mother, as it may have the effect of branding the mother of plaintiff as unchaste woman. It is noticeable that proceedings under Section 125 Cr.P.C. are summary in nature.
23. For the facts and circumstances of the present case, I find that the reason assigned by the Magistrate, for rejecting the application, was that FIR on record was sufficient to connect paternity of the plaintiff with defendant as, in Para-13 of the said order, he has observed that FIR was lodged on 15.10.2003, stating therein that the mother of the plaintiff was violated in June 2003 and fact of conceiving the child came to the knowledge on 15.10.2003 and child was born on 1.3.2004, and on the basis of these dates it was concluded by the Magistrate that birth of the child in March 2004 was corroborating the fact that plaintiff was conceived on account of rape by defendant with mother of the plaintiff and, therefore, it was not considered appropriate by the Magistrate to subject the parties to DNA Profiling Test to verify the parentage of plaintiff. Therefore, rejection of application of the defendant by the Magistrate in those summary proceedings, under Section 125 Cr.P.C., has no bearing in the Civil Suit filed by the plaintiff, wherein child herself is asking for determination of parentage on the basis of DNA Profiling Test.
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24. No doubt, the application filed by the defendant, in proceedings under Section 125 Cr.P.C, for DNA Profiling Test, was opposed on behalf of plaintiff, but hard ground realities cannot be .
ignored. Though it is presumed that an Advocate acts on the basis of instructions imparted by the client, however, it is ground reality that parties, particularly rustic villagers depend upon and act according to legal advice rendered by the Advocate. Record placed before me indicates that application of the defendant was opposed on the basis of case law referred by the defendant in present petition, but at that time defendant was applicant, whereas in present petition child (plaintiff) is seeking direction for DNA Profiling with right to know her paternity and at that time it was considered by the learned counsel for the plaintiff as well by the Court to exercise 'protective jurisdiction' in the interest of child (plaintiff), as material available on record was otherwise considered sufficient by the Magistrate to determine the paternity.
25. So far as plea of the defendant that plaintiff has taken U-
turn on this issue and should not be permitted to reopen the same, the same principle is also applicable to the defendant, who himself was asking for DNA Profiling in proceedings under Section 125 Cr.P.C., but now opposing the application. In view of pronouncements of Supreme Court, I find that this ground is not tenable for accepting the plea of defendant.
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26. Plea of the defendant that possibility of the defendant to be biological father of the plaintiff is ruled out for the fact on record that FIR was lodged on 15.10.2003 and plaintiff was born four .
months thereafter on 1.3.2004, is also factually incorrect as the complete facts are available in the order passed by the Magistrate in Cr.MA No.18-4 of 2011, placed on record with the petition as Annexure P-4, wherein it is stated that rape was committed in June 2003, FIR was lodged on 15.10.2003 on revealing of conception of child and child (plaintiff) was born on 1.3.2004.
27. Plea that application should have been filed under Order 41 Rule 27 CPC and the same should have been decided at the time of final adjudication of the case is also not sustainable for the reason that question of production of additional evidence by the plaintiff in appeal shall arise only after piece of evidence is available and for that purpose an application has been filed by the plaintiff which has been allowed by learned Additional District Judge. Even otherwise, Appellate Court may call for or allow to produce additional evidence, if it requires any document to be produced to enable it to pronounce judgment and for any other substantial cause and imparting justice, after complete and final adjudication of the case, which is a substantial cause for which Courts have been established. Therefore, I am of the considered opinion that present case is a fit case for exercising such jurisdiction in its facts and circumstances.
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28. As the plaintiff was not born out of wedlock, therefore, she is carrying stigma of an unwanted child born on account of rape committed by the defendant with her mother. Therefore, .
determination of paternity by DNA Profiling shall not cause any adverse impact upon her status, rather it would be in her interest to know truth about her biological father so as to entitle her to civil consequences arising thereto, in the interest of complete justice.
29. I do not find any irregularity, illegality or perversity in the
30.
r to impugned order passed by learned Additional District Judge, warranting interference by this Court.
In view of afore-discussion, petition is dismissed.
Defendant shall also pay costs of this petition, quantified at Rs.11,000/-, to the plaintiff.
Pending application, if any, also stands disposed of.
( Vivek Singh Thakur )
March 2, 2022 (sd) Judge.
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