Premkumar v. Rajeswari

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 08.10.2009CORAMTHE HONOURABLE MR.JUSTICE T.SUDANTHIRAMCrl.R.C.No.1095 of 2007Premkumar ... PetitionerVs.Rajeswari ... RespondentPrayer: Petition filed under Sections 397 and 401 of the CriminalProcedure Code praying to stay all further proceedings ofM.C.No.1/2006 on the file of the learned Judicial Magistrate-IVirudhachalam, pending disposal of the above criminal revision and toset aside the order passed in C.M.P.No.1530/2007 in M.C.No.1/06, bythe learned Judicial Magistrate-I Virudhachalam, dated 08.06.2007 andallow the same.For Petitioner: Mr.L.PalanimuthuFor Respondent: Mrs.Jayashree Baskar, Legal Aid Counsel.O R D E RThe revision petitioner herein is the husband of therespondent herein. The respondent herein filed an application beforethe learned Judicial Magistrate-I, Virudhachalam, under Section 125Code of Criminal Procedure, claiming maintenance for her and herminor son and the said proceeding is pending in M.C.No.1/2006. 2. The petitioner herein filed an application before theTrial Court seeking direction to subject the child, petitioner andthe respondent herein for D.N.A. Test. According to the petitionerherein, the marriage was performed on 13.09.2000 and they livedtogether only till 13.12.2000. From 14.12.2000, there was noconnection between the husband and wife and the respondent herein washaving illicit intimacy with another person. The respondent heringave birth to a child on 13.11.2001 and according to the petitionerherein, he is not the father of the child. The said application wasdismissed by the learned Magistrate on the ground that the respondentherein cannot be compelled to subject herself to D.N.A. Test, sincethe respondent herein was not ready to undergo the D.N.A. Test.Aggrieved by the said order, the petitioner herein has preferred thiscriminal revision. https://hcservices.ecourts.gov.in/hcservices/

3. Though a notice was ordered to the respondent herein andMr.T.Sivagnanasambandan, learned counsel entered appearance on behalfof the respondent and as he submitted that he had no instruction fromthe respondent and withdrawn his appearance, Mrs. Jayashree Baskarwas appointed as Legal Aid Counsel for respondent herein on02.09.2009.4. The learned counsel for the petitioner submits that thepetitioner herein, had filed a counter before the learned Magistrateand even at the initial stage, the petitioner denied the paternity ofthe child. The learned counsel for the petitioner further submittedthat the learned Magistrate erred in relying on the decision reportedin AIR 1993 SC 2295, without considering the present position laiddown by the Hon'ble Supreme Court in Sharda Vs. Dharmpal reported in2003 (2) CTC 760. The learned counsel for the petitioner also reliedon the decision of this Court reported in 2009 (1) CTC 141 (VeeranVs. Veeravarmalle). Relying on both the decisions, the learnedcounsel for the petitioner submitted that there is no question ofcompelling the respondent to subjecting her to D.N.A. Test, but inorder to prove the case of the petitioner herein, a fair opportunityshould be given to him.5. According to Mrs.Jayashree Baskar, learned counselappearing for the respondent submitted that proceeding under Section125 Code of Criminal Procedure is only a Summary Proceeding in natureand the party comes for immediate relief and as such, the proceedingscannot be delayed by directing the parties or subjecting the partiesto D.N.A. Test. The learned counsel for the respondent furthersubmitted that the petitioner had filed the application only to dragon the proceedings. The learned counsel further submitted that thecase is to be decided on preponderance of probabilities and the issuehas to be resolved on the basis of the evidence let in by bothparties. The learned counsel for the respondent also relied ondecision reported in 2008 CRI.L.J. (NOC) 689 (ALL.) Alok Banerjee Vs.Smt. Atoshi Banerjee and also relied on the decision reported in 2007CRI.L.J. (NOC) 518 (CHH.) Sharik Ahmad Vs. Sundarlal. The learnedcounsel for the respondent further submitted that only for the CivilCourt in the matrimonial proceedings, a petition could be filed for aD.N.A. Test and not in proceeding under Section 125 CriminalProcedure Code. 6. This Court considered the submissions made by bothparties and also perused the materials available on record. 7. According to the petitioner herein, the marriage wasperformed on 13.09.2000 and both the petitioner and the respondentlived together till 13.12.2000. From 14.12.2000, the petitioner didnot have any affair with respondent and she was having illicit https://hcservices.ecourts.gov.in/hcservices/ intimacy with one Selvaraj and the child which was given birth by therespondent on 30.11.2001 is not the child of the petitioner. As thepetitioner denied the paternity of the child, in order to prove hiscase, he has filed an application before the learned Magistrate tosubject the petitioner, the respondent and the child for D.N.A. Test.A counter also has been filed by the respondent herein, in which therespondent herein has stated that after marriage on 13.09.2000, for aperiod of one year and six months both husband and wife livedtogether and the child Shyamkumar is the son of the petitioner. Therespondent herein also denied the illicit intimacy with the saidSelvaraj. The respondent herein also did not accept for the D.N.A.Test. 8. The learned Magistrate had dismissed the applicationrelying on the decision reported in AIR 1993 SC 2295, wherein it isobserved as follows:"The Court cannot compel a person to give the sample ofblood. However, if that person refuses to give blood samplewithout any valid reason the Court is at liberty to draw theinference as a necessary corollary in sequel thereof."9. The Hon'ble Supreme Court had observed in the decisionSharda Vs Dharmpal reported in 2003 (2) CTC 760 as follows:"71. The matter may be considered from another angle.In all such matrimonial cases where divorce is sought, sayon the ground of impotency, schizophrenia... etc... normallywithout there being medical examination, it would bedifficult to arrive at a conclusion as to whether theallegation made by his spouse against the other spouseseeking divorce on such a ground, is correct or not. Inorder to substantiate such allegation the petitioner wouldalways insist on medical examination. If respondent avoidssuch medical examination on the ground that it violateshis/her right to privacy or for a matter right to personalliberty as enshrined under Article 21 of Constitution ofIndia, then it may in most of such cases become impossibleto arrive at a conclusion. It may render the very grounds onwhich divorce is permissible nugatory. Therefore, when thereis no right to privacy specially conferred by Article 21 ofthe Constitution of India and with the extensiveinterpretation of the phrase "personal liberty" this righthas been read into Article 21, it cannot be treated asabsolute right. What is emphasized is that some limitationson this right have to be imposed and particularly where twocompeting interests clash. In matters of aforesaid naturewhere the legislature has conferred a right upon his spouseto seek divorce on such grounds, it would be the right of https://hcservices.ecourts.gov.in/hcservices/ that spouse which comes in conflict with the so-called rightto privacy of the respondent. Thus the Court has toreconcile these competing interests by balancing theinterests involved.72. If for arriving at the satisfaction of the Courtand to protect the right of a party to the lis who mayotherwise be found to be incapable of protecting his owninterest. The Court passes an appropriate order, thequestion of such action being violative of Article 21 of theConstitution of India would not arise. The Court havingregard to Article 21 of the Constitution of India must alsosee to it that the right of a person to defend himself mustbe adequately protected.73. It is, however, axiomatic that a Court shall notorder a roving inquiry. It must have sufficient materialsbefore it to enable it to exercise its discretion. Exerciseof such discretion would be subjected to the supervisoryjurisdiction of the High Court in terms of Section 115 ofthe Code of Civil Procedure and or Article 227 of theConstitution of India. Abuse of the discretionary power atthe hands of a Court is not expected. The Court must arriveat a finding that the applicant has established a strongprima facie case before passing such an order.74. If despite an order passed by the Court, a personrefuse to submit himself to such medical examination, astrong case for drawing an adverse inference would be madeout. Section 114 of the Indian Evidence Act also enables aCourt to draw an adverse inference if the party does notproduce the relevant evidence, in his power and possession.75. So viewed, the implicit power of a Court to directmedical examination of a party to a matrimonial litigationin a case of this nature cannot be held to be violative ofone's right of privacy. To sum up, our conclusions are:1.A matrimonial Court has the power to order a person toundergo medical test.2.Passing of such an order by the Court would not be inviolation of the right to personal liberty underArticle 21 of the Indian Constitution.3.However, the Court should exercise such a power if theapplicant has a strong prima facie case and there issufficient material before the Court. If despite theorder of the Court, the respondent refuses to submit https://hcservices.ecourts.gov.in/hcservices/ himself to medical examination, the Court will beentitled to draw an adverse inference against him."The above said decision of the Hon'ble Supreme Court hasbeen followed by this Hon'ble High Court in Veeran Vs. Veeravarmallereported in 2009 (1) CTC 141, wherein it is observed as follows:"Thus, the above judgment of the Hon'ble Apex Court willmake it very clear that the order of the Court belowdirecting the petitioner to undergo D.N.A Test would not bein violation of the right to his personal libertyguaranteed under Article 21 of the Constitution of Indiaand it will not be violative of the petitioner's right ofprivacy."The above cited decision of the Hon'ble Supreme Court makesit clear that, Court has power to order a person to undergo medicaltest.10. The learned counsel for the respondent raised anobjection stating that such a direction for medical test would begiven only in matrimonial Court and not in proceeding under Section125 Code of Criminal Procedure. This Court feels that the abovecontention of the respondent does not hold good. Though theproceeding under Section 125 Code of Criminal Procedure is only aSummary Trial Proceeding, the issue involved in the case is alsosimilar to the case involved in the matrimonial litigation. When thepetitioner denies the paternity of the child, an opportunity shouldbe given to the petitioner to prove his case, since the case is to bedecided only on the preponderance of probabilities.11. In the decision cited by the learned counsel for therespondent Alok Banerjee Vs. Smt. Atoshi Banerjee, reported in 2008CRI.L.J. (NOC) 689 (ALL.)=2008 (2) ALJ 560, the head note is asfollows:"Criminal P.C (2 of 1974), S.125 (1)(b) – Evidence Act (1 of1872), S.112 - Maintenance of child – Duties lies on aperson having sufficient means to maintain his legitimate orillegitimate minor child whether married or not – It isimmaterial whether child was legitimate or illegitimate –Eliciting finding about legitimacy or illegitimacy of child,not necessary – Direction for conducting DNA test fordetermining paternity of child cannot be issued."The full details of the judgment is not available beforethis Court. It is not known under what circumstances, direction ofconducting of D.N.A. Test and determination of paternity of the childwas not issued. https://hcservices.ecourts.gov.in/hcservices/

12. In the decision cited by the learned counsel for therespondent Sharik Ahmad VS. Sundarlal reported in 2007 CRI.L.J. (NOC)518 (CHH.), the head note is as follows:"Criminal P.C. (2 of 1974). Ss 482,125 – Directions for DNAtest – Are to be issued only when Court is unable or it isimpossible to draw an inference or adverse inference onbasis of evidence and issue cannot be resolved without DNAtest – application for grant of maintenance filed by child– respondent disputing paternity of child – Directions forDNA test without examining paternity on basis of otherevidence – Not proper."It appears from the above decision that without examiningthe paternity on the basis of other evidence, it is not proper fordirecting for D.N.A. Test. Even as per the decision of the Hon'bleSupreme Court cited supra, such order should be made by the Courtexercising its discretion, only if the applicant has strong primafacie case and there is sufficient material before the Court. 13. According to the learned counsel for the petitioner, sofar evidence has not been let in, in this case. In the saidcircumstances, after the evidence being let in by both theparties, it is open to the petitioner to file an application seekingdirection for D.N.A. Test. But at the same time, this Court makes itclear that it is not necessary to conduct the D.N.A. Test, on boththe petitioner and respondent herein and the D.N.A. Test performed onthe petitioner herein, will also show whether the child was born tohim or not. Once again it is made clear that it is for the learnedMagistrate to consider the application filed by the petitioner forD.N.A. Test at the appropriate stage, considering the other materialsavailable before the Court.With these observations, the revision petition is orderedaccordingly.va Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar.ToThe Judicial Magistrate-I,Virudhachalam.+1cc to Mrs. A.L. Ganthimathi,Advocate, SR.No.52209.+1 cc to Mrs. Jayasri Baskar, Advocate, SR.No.52192.Crl.R.C.No.1095 of 2007tej(co)ar/20.10.2009.