Court ordered for DNA test of Father to know paternity of father

  

Latest news April 26, 2019 88

Hon'ble Himachal Pradesh High Court, after referring to and relying upon the earlier judgment of Hon'ble Supremce Court of india has held that DNA test of parties can be directed to discover truth regarding paternity of child. Court directed petitoner (wife) and respondent (husband) to undergo DNA test to ascertain paternity of child. Read Full judgement.





I (2019) DMC 504 (HP)



HIMACHAL PRADESH HIGH COURT



Tarlok Singh Chauhan, J.



BISHAMBER SINGH—Petitioner



versus



RAJ KUMARI & ORS.—Respondents



Cr. MMO No. 354 of 2018—Decided on 21.12.2018



(i) Criminal Procedure Code, 1973 — Section 482 — DNA Test — Maintenance — Legitimacy of child — Parties are not totally strangers, no prejudice would be caused to petitioner-husband if he is directed to undergo DNA test — Court’s serious Endeavour has to be to find out where in fact truth lies — Directions issued to petitioner and respondent accordingly.



[Paras 10 onwards]



(ii) Administration of Justice — Truth is the basis of justice delivery system and should be the guiding star in entire judicial process.



[Para 12]



Result : Petition dismissed.



Cases referred:



1. Bhabani Prasad Jena v. Convenor Secretary, Orissa State Commission for Women and Another, II" target="_blank" class="updatelink">Click here (2010) DMC 307 (SC)=V (2010) SLT 566. (Relied)

[Para 8]

2. Dipanwita Roy v. Ronobroto Roy, II" target="_blank" class="updatelink">Click hereI (2014) DMC 812 (SC)=IX (2014) SLT 241. (Relied)

[Para 9]



Counsel for the Parties:



For the Petitioner : Mr. V.S. Rathour, Advocate.



For the Respondent Nos. 1 to 3 : Mr. Dhiraj Thakur, Advocate.



For the Respondent No. 4 : Ms. Svaneel Jaswal, Advocate.



JUDGMENT



Tarlok Singh Chauhan, J. (Oral)—This petition under Section 482 of the Code of Criminal Procedure (for short ‘Code’) has been directed against the order passed by learned Additional Sessions Judge-I, Kangra at Dharamshala in Criminal Revision No. 14-D/X/2017 on 17.7.2018 whereby he affirmed the order passed by learned trial Magistrate which had directed the conducting of DNA test of the present petitioner.



2. The facts giving rise to the present case are that respondent No. 1 filed a petition under Section 125, Cr.P.C. seeking maintenance against the present petitioner. She also filed an application for grant of permission for conducting DNA test and for production of CD as in evidence. Learned trial Magistrate allowed the application vide order dated 2.9.2015, however, no specific direction was given for conducting the DNA test. Thereafter, the respondents filed another application for issuing directions to the petitioner to conduct DNA test before CFSL, Chandigarh. The learned trial Magistrate vide order dated 26.5.2017 directed that the DNA test was necessary and further the present petitioner was directed to deposit a sum of Rs. 20,000 before the Court.



3. The order dated 26.5.2017 was assailed by the petitioner before the learned Additional Sessions Judge-I, Kangra at Dharamshala, who vide order dated 17.7.2018 affirmed the order dated 26.5.2017 passed by learned trial Magistrate.



4. Aggrieved by the orders passed by the learned Courts below, the petitioner has filed the present petition primarily on the ground that the learned Courts below had no jurisdiction to direct the petitioner to undergo DNA test especially for the purpose of determining the legitimacy of the . children.



5. Mr. V.S. Rathour, learned Counsel for the petitioner has vehemently argued that the orders passed by the learned Courts below are not legally sustainable in the eyes of law and are hit by Article 21 of the Constitution of India as the petitioner cannot be directed to undergo DNA test without his consent.



6. On the other hand, Mr. Dhiraj Thakur, learned Counsel for respondent Nos. 1 to 3 would support the orders passed by the learned Courts below as the same have been passed strictly in accordance with law and therefore need to be upheld.



I have heard learned Counsel for the parties and also gone through the records of the case carefully.



7. It has to be remembered that in a matter where paternity of a child is in issue before the Court, the use of DNA test is an extremely delicate and sensitive aspect. One view is that when modern science gives the means of ascertaining the paternity of a child, there should not be any hesitation to use those means whenever the occasion requires. The other view is that the Court must be reluctant in the use of such scientific advances and tools which result in invasion of right to privacy of an individual and may not be prejudicial to the rights of the parties but may have devastating effect on the child.



Sometimes, the result of such a scientific test may bastardize an innocent child even though his mother and her spouse were living together during the time of conception. Any order for DNA test can be given by the Court only if a strong prima facie case is made out for such a course.



8. In Bhabani Prasad Jena v. Convenor Secretary, Orissa State Commission for Women and Another, II (2010) DMC 307 (SC)=V (2010) SLT 566=(2010) 8 SCC 633, the Hon’ble Supreme Court has held that whenever there is a conflict between the right of privacy of a person not to submit himself to medical examination and duty of the Court to reach the truth, the Court must exercise its discretion only after balancing the interest of the parties and on due consideration whether for a just decision in the matter, DNA test is eminently needed.



9. In Dipanwita Roy v. Ronobroto Roy, III (2014) DMC 812 (SC)=IX (2014) SLT 241=(2015) 1 SCC 365, the Hon’ble Supreme Court was dealing with a case pertaining to the alleged infidelity of the appellant therein and the husband wanted to prove and establish the ingredients of Section 13(1)(i) of the Hindu Marriage Act, 1955, namely, that after the solemnization of the marriage of the appellant with the respondent, the appellant therein had voluntarily engaged in sexual intercourse with a person other than the respondent.



The Hon’ble Supreme Court held that the prayer made by the respondent for conducting DNA test of the appellant’s son was aimed at the alleged adulterous behaviour of the appellant and, therefore, the issue of legitimacy was also incidentally involved.



It was further held that depending on the facts and circumstances of each case, it will direct the holding of a DNA examination, but then it was specifically held that if the directions to hold such test can be avoided, it should be so avoided for the reasons that the legitimacy of a child should not be put to peril. It is apt to reproduce para-16 of the judgment which reads thus:



“16. It is borne from the decisions rendered by this Court in Bhabani Prasad Jena v. Orissa State Commission for Women, (2010) 8 SCC 633 and Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik, (2014) 2 SCC 576 that depending on the facts and circumstances of the case, it would be permissible for a Court to direct the holding of a DNA examination to determine the veracity of the allegation(s) which constitute one of the grounds, on which the party concerned would either succeed or lose. There can be no dispute, that if the direction to hold such a test can be avoided, it should be so avoided. The reason, as already recorded in various judgments by this Court, is that the legitimacy of a child should not be put to peril.”



10. Judged in light of the aforesaid exposition of law, it would be noticed that the Court here is dealing with a case where respondent No. 1 is claiming herself to be the wife of the petitioner and out of the said relationship, has begot two children, who are respondent Nos. 2 and 3 in this petition.



Therefore, sexual relationship, if any, inter se between the parties was definitely not for pleasure alone, but for procreation of children so as to give emotional support, companionship as also material affection, caring, etc.



11. As observed by the Hon’ble Supreme Court, having children is a strong indication of relationship in the nature of marriage and would be a strong indicator to establish that the parties intended to have long standing relationship sharing the responsibility for bringing up and supporting the children.



12. Therefore, prima facie, having concluded that the parties are not totally strangers, I am of the considered view that no prejudice would be caused to the petitioner if he is directed to undergo DNA test. After all, only the truth will come out from such test and it has to be remembered that every trial is a voyage of discovery in which the truth is the quest. It is, therefore, the duty of the Court to ensure that the truth in a case comes out. The truth is the basis of justice delivery system and therefore, should be the guiding star in the entire judicial process. The Court’s serious endeavour has to be to find out where in fact the truth lies. Judges at all levels have to seriously engage themselves in the journey of discovering the truth. That is their mandate, obligation and bounden duty. Justice system will acquire credibility only when people will be convinced that justice is based on the foundation of the truth.



13. Having said so, I find no merit in this petition and the same is accordingly dismissed. Since the petitioner as also the respondents are present in the Court, therefore, they are directed to submit their blood samples to the Medical Superintendent, IGMC, Shimla so that their DNA profiling test can be conducted strictly by the State Forensic Science Laboratory at Junga.



14. Parties to present themselves before the Medical Superintendent, IGMC, Shimla during the course of the day, who in turn, is directed to take follow up action in accordance with law.



15. The Director, State Forensic Science Laboratory, Junga is directed to submit the report directly to the learned Trial Court i.e. Additional Chief Judicial Magistrate, Nurpur, District Kangra, H.P. in Case No. 34-IV/2014.



16. Pending application(s), if any, also stands disposed of.



17. An authenticated copy of this order be supplied to the learned Deputy Advocate General and also to the parties, by the Court Master, during the course of the day.



Petition dismissed

Tags : #DNA Test of Child in Divorce Case# Adultry Case against Wife# divorce on the Ground of Adultry# Case against wife for Adultry#What to do if my child is not mine#How to get Divorce from Wife on the ground of Cruelty


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