D.K. Sinha, J.@mdashThe instant Cr. Revision is directed against the order dated 23.7.2009 passed by the Principal Judge, Family Court, Dhanbad in M.P. Case No. 68 of 2004 by which a petition filed on behalf of the petitioner No.1 Babita Dcvi Babali for the D.N.A test of her daughter i.e. Petitioner No. 2 Sejal comparing with the D.N.A of O.P. No.2 Adijya Chourasia to establish that he was her father was rejected.
2. The short fact related to the present case is that the Petitioner No. 1 is the legally married wife of the O.P. No. 2 Aditya Chourasia as their marriage was solemnized on 29.2.2000 in accordance with the Hindu rites and customs. The opposite party No. 2 Aditya Chourasia filed a Title Suit (M) No. 385 of 2005 u/s 11 of the Hindu Marriage Act which was concluded in the declaration of their marriage as nullity vide judgment dated 15.12.2004. Against that order the Petitioner filed First Appeal No. 16 of 2005 before this Court which was admitted on 4.1.2007 and the judgment passed on 15.12.2004 by the Principal Judge, Family Court, Dhanbad was stayed. It was further stated by the Petitioner No. 1 that after her marriage with the O.P. No. 2 Aditya Chourasia she started living at her matrimonial home and enjoyed conjugal marital life with her husband. From consummation of their marriage a female child was born namely Sejal (Petitioner No. 2) on 14.3.2001 in the Central Hospital, Dhanbad.
3. In the meantime, the Petitioner No. 1 with her daughter Sejal filed a petition claiming their maintenance and thereby proceeding u/s 125 Code of Criminal Procedure was initiated . The husband-opposite party No. 2 appeared in the said proceeding but in the causes shown by him he asserted that at no point of time he established sexual relation with the Petitioner No. 1 after their marriage since he had no access to her and she did not allow him for consummation and therefore, the female child (Petitioner No. 2) was not bom from him. He further asserted that prior to her marriage with him, the Petitioner No. 1 was married with another person namely Sanjay Kumar Gupta and the minor child was born from their wedlock to which the assertion was strongly controverter by the Petitioner No. 1 and she contended that the O.P. No. 2 was the father of her minor daughter and for proving the same she filed a petition for DNA test of her female child Sejal comparing her D.N.A with the D.N.A of O.P. No. 2 so as to establish the latter''s paternity and for that the Petitioner No. 1 expressed her willingness to deposit the cost of such tests.
4. Mrs. Vandana Singh, the learned Counsel appearing for the Petitioners assailed the impugned order dated 23.7.2009 recorded by the Principal Judge, Family Court Dhanbad on the ground that the prayer of the Petitioner No. 1 was rejected considering the statements of the Petitioner No. 1 recorded in a different complaint, case No. 1147 of 2002 wherein she testified that after her marriage with the O.P. No. 2 she went to her matrimonial home where her first husband Sanjay Kumar Gupta came and claimed her to be his wife and from there she was taken away by Sanjay Kumar Gupta to his own house where he started living with her as husband and wife and that she conceived from Sanjay Kumar Gupta. Mrs. Singh, the learned Counsel, further submitted that the Petitioner No. 1 had categorically explained in this regard that her statement was recorded when she was under the custody and influence of the O.P. No. 2 and the member of his family where she was forced and coerced to file a complaint against Sanjay Kumar Gupta and whatever statement was delivered by her in the complaint, it were under the pressure and duress of Aditya Chourasia and the same was not voluntary.
5. The learned Principal Judge, Family Court, Dhanbad observed in the impugned order that the Petitioner No. 1 had filed a complaint case against Sanjay Kumar Gupta on 5.9.2002 and her statement on solemn affirmation was recorded wherein she had given her address, which was the address of her father and not the address of the O.P. No. 2. Therefore, the plea of undue influence and coercion by the O.P. No. 2 could not be substantiated. The Principal Judge, Family Court inferred on the given facts that the complaint petition was filed by the Petitioner No. 1 while she was living with her father and therefore, the statement made on solemn affirmation could not be brushed aside. She asserted that her daughter was born after completion of nine months of pregnancy on 14.3.2001, therefore her statement that she conceived in the month of August, 2000, could not be relied upon and therefore, the Court held that from the statement of the Petitioner No. 1 it was established that the Petitioner No. 2 was bom from the first husband Sanjay Kumar Gupta of the Petitioner Babita Devi. Mrs Singh the learned Counsel further submitted that adverse inference can be drawn against him since the O.P. No. 2 Aditya Chourasia declined for compare of his D.N.A. with the Petitioner No. 2 Sehal.
6. Section- 112 of the Evidence Act runs as follows:
Birth during marriage, conclusive proof of legitimacy-
The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at arty time when he could have been begotten.
For the purpose of section-112 "access" does not mean actual marital intercourse. Opportunity of intercourse is enough. The presumption as to paternity and legitimacy is rebut table by evidence of non-access throughout the possible period of conception. In this proceeding u/s 125 Code of Criminal Procedure the opposite party No. 2 Aditya Chourasia failed to adduce evidence that he had actually no access at all to the Petitioner No. 1 even during her stay in his house for a couple of days.
Non-access could be established not merely by positive or direct evidence; it can be proved undoubtedly like any other physical fact by evidence either direct or circumstantial, which is relevant to the issue under the provisions of the Indian Evidence Act, though as the presumption of legitimacy is highly favoured by law it is necessary that proof of non- access must be clear and satisfactory.
The period of gestation, u/s 112, is 280 days, but this period is a varying period and a child bom between 174 to 240 days has also found to be legitimate child after sexual intercourse between husband and wife.
It was held by the Supreme Court in
7. The Apex Court in
DNA test is a matter relating to paternity of a child should not be directed by the Court as a matter of course or in a routine manner, whenever such a request is made. The Court has to consider diverse aspects including presumption u/s 112 of the Evidence Act; pros and cons of such order and the test of "eminent need" whether it is not possible for the Court to reach the truth without use of such test. The result of a genuine DNA test may not be enough to escape from the conclusiveness of Section 112. When there is apparent conflict between the right to privacy of a person not to submit himself forcibly 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.
8. In the facts and circumstances and for the reasons discussed above the order impugned" dated 23.7.2009 passed by the Principal Judge, Family Court, Dhanbad in a proceeding u/s 125 Code of Criminal Procedure corresponding to M.P. Case No. 68 of 2004 is seta side and the Principal Judge, Family Court, Dhanbad is directed to fix a suitable date for collecting the blood samples of the Petitioner No. 2 Sejal and O.P. No. 2 Aditya Chourasia by an expert technician so that it could be sent to the Forensic Science Laboratory, Ranchi for comparing their DNA on the appropriate cost if at all required to be deposited by the Petitioner No. 1 or under the orders of Family Court. The entire exercise of sending the blood sample to FSL be completed within one month of the receipt of the communication of this order either on presentation of the certified copy or receipt through Fax from this Court whichever is earlier.
9. With this observation this Cr. Rev. is allowed.
