Kamala and Others vs Shivakumar

Rathnakala, J.—The petitioner - mother and the minor child filed a petition under Section 125 of Cr.P.C. claiming that the 1st petitioner is the wife and the 2nd petitioner is the minor child born out of the wedlock of the petitioner No. 1 and the respondent.

On appearance, the respondent filed his objection statement denying the relationship with the petitioner No. 1. He denies his parental relationship to the minor child. The wife filed an application for interim maintenance, which on contest came to be rejected vide order dated 17.01.2014. On 16.08.2014 she filed an application under Section 45 of Indian Evidence Act r/w Section 10 of Family Court Act. After contest, the learned Family Judge rejected the application. Petitioners are aggrieved by the said order.

Sri. Hanumantha Reddy, Learned Counsel for the petitioners submits that only on the ground that the respondent denied his relationship to the petitioners, the Court could not have rejected application for D.N.A. Test. If said test is carried out, it can conclusively establish the relationship of respondent to the petitioners. On the allegation of contacting 2nd marriage during the subsistence to the first marriage, a departmental enquiry was held against the respondent. He is a Police Constable. In the departmental enquiry, the charges have been proved and punishment was imposed on him. The reasons assigned by the Court while rejecting the application is not correct. The order has resulted in miscarriage of justice to the petitioners and same may be quashed by directing the Respondent to submit for D.N.A. Test. The learned Counsel has relied on a decision of Apex Court in the case of Narayan Dutt Tiwari v. Rohit Shekhar and another ([2012] 12 SCC 554).

In reply Sri. C.N. Raju, learned Counsel for the respondent would submit that the respondent denied the relationship with the 1st petitioner and the petitioner has married another person and the respondent is also a married person. If at all the first petitioner is at establishing the relationship of the minor child to this respondent, remedy available for her is not under Section 125 of Cr.P.C. Moreover, the very same petitioner simultaneously prosecuted an application under the provision of Domestic Violence Act and has filed a similar application. That application was rejected on 17.01.2014. The said order challenged before the District Court went in vain. The learned Family Court Judge has rightly rejected the petition having regard to the scope of Section 125 of Cr.P.C. when the order passed is legal, there is no scope for the petitioners to invoke the jurisdiction of this Court under Section 482 of Cr.P.C.

Reliance is placed by the learned Counsel for the respondent on the judgment of the Apex Court in Smt. Kanti Devi and Another Vs. Poshi Ram, . It was a civil case filed by a husband for declaration that he is not the father of the child born to the wife as he had no access to the wife. At the first instance, the trial court dismissed the suit. In appeal, the first appellate court decreed the suit on the strength of the evidence adduced by both parties on being convinced that the plaintiff/husband had no opportunity to have liaison with the defendant/wife. The finding was endorsed by the High Court and later by the Apex Court. Paragraphs-9, 10 and 11 are of relevance, which read thus:

"9. But Section 112 itself provides an outlet to the party who wants to escape from the rigour of that conclusiveness. The said outlet is, if it can be shown that the parties had no access to each other at the time when the child could have been begotten the presumption could be rebutted. In other words, the party who wants to dislodge the conclusiveness has the burden to show a negative, not merely that he did not have the opportunity to approach his wife but that she too did not have the opportunity of approaching him during the relevant time. Normally, the rule of evidence in other instances is that the burden is on the party who asserts the positive, but in this instance the burden is cast on the party who pleads the negative. The raison deter is the legislative concern against illegitimatizing a child. It is a sublime public policy that children should not suffer social disability on account of the laches or lapses of parents.

We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancements with Dioxyribo 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 irrebuttable. 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 rebutting the conclusiveness must be answered in the light of what is meant by access or non-access as delineated above.

Whether the burden on the husband is as hard as the prosecution to prove the guilt of the accused in a trial deserves consideration in the above background. The standard of proof of prosecution to prove the guilt beyond any reasonable doubt belongs to criminal jurisprudence whereas the test of preponderance of probabilities belongs to civil cases. The reason for insisting on proof beyond reasonable doubt in criminal cases is to guard against innocent being convicted and sent to jail if not to extreme penalty of death. It would be too hard if that standard is imported in a civil case for a husband to prove non-access as the very concept of non-access is negative in nature. But at the same time the test of preponderance of probability is too light as that might expose many children to the peril of being illegitimatised. If a court declares that the husband is not the father of his wife''s child, without tracing out its real father the fall out on the child is ruinous apart from all the ignominy visiting his mother. The bastardized child, when grows up would be socially ostracised and can easily fall into wayward life. Hence, by way of abundant caution and as a matter of public policy, law cannot afford to allow such consequence befalling an innocent child on the strength of a mere tilting of probability. Its corollary is that the burden of the plaintiff-husband should be higher than the standard of preponderance of probabilities. The standard of proof in such cases must at least be of a degree in between the two as to ensure that there was no possibility of the child being conceived through the plaintiff husband."

In the judgment relied for the petitioners in Narayan Dutt Tiwari (supra) the son sought for a declaration against defendant No. 1/Tiwari and defendant No. 2/his mother that first defendant is his father. During trial, he filed an application for a direction to the first defendant to submit for DNA test or any other test required to determine his parentage. On contest, though the learned Single Judge of the High Court held that refusal of first defendant to submit the blood sample to be willful, malafide, unreasonable and unjustified, still was of the opinion that he cannot be physically compelled or be physically confined for submitting a blood sample for DNA profiling, in implementation of its order whereby the application for DNA test was allowed. In appeal against the said order, the Division Bench of the High Court asserted that, for compliance of the order (for DNA test), first defendant if continues to defy the order, the learned Single Judge is entitled to take Police assistance and use all reasonable force for compliance therewith. In Special Leave Petition, the Apex Court modified the order of the Division Bench taking into consideration that first defendant was not in a position to move freely on account of his old age and directed the Civil Surgeon of the Government Hospital of the District along with the Pathologist and the Joint Registrar, Original Side of Delhi High Court to collect his blood sample.

In a recent judgment reported in Dipanwita Roy Vs. Ronobroto Roy, , which was a matrimonial case, the wife resisted to submit herself for DNA test as sought by husband; the High Court directed the wife to submit herself for DNA test. It was observed thus :

"12. We would however, while upholding the order passed by the High Court, consider it just and appropriate to record a caveat, giving the appellant-wife liberty to comply with or disregard the order passed by the High Court, requiring the holding of the DNA test. In case, she accepts the direction issued by the High Court, the DNA test will determine conclusively the veracity of accusation leveled by the respondent-husband, against her. In case, she declines to comply with the direction issued by the High Court, the allegation would be determined by the concerned Court by drawing a presumption of the nature contemplated in Section 114 of the Indian Evidence Act, especially, in terms of illustration (h) thereof. Section 114 as also illustration (h), referred to above, are being extracted hereunder:

''114. Court may presume existence of certain facts - The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.

Illustration (h) - That if a man refuses to answer a question which he is not compelled to answer by law, the answer, if given, would be unfavourable to him''.

This course has been adopted to preserve the right of individual privacy to the extent possible. Of course, without sacrificing the cause of justice. By adopting the above course, the issue of infidelity alone would be determined, without expressly disturbing the presumption contemplated under Section 112 of the Indian Evidence Act. Even though, as already stated above, undoubtedly the issue of legitimacy would also be incidentally involved."

All the above judgments are from civil disputes. The proceedings under Section 125 of Cr.P.C. being quasi judicial in nature, having regard to the narrow conspectus in which the proceeding operate, it is not required to direct the respondent to submit himself for DNA test since he has denied his marital status with first petitioner. His right for privacy cannot be ignored. It is always open to the petitioner at the final adjudication to make a request to the Court to draw inference against the respondent under Section 114(h) of the Indian Evidence Act, for not agreeing for the DNA test. The appreciation of such request would depend upon the strength of the evidence that may be placed by either of the parties to the Trial Court.

With this observation, petition stands disposed of.