Thangavelu v. Minor Sivakumar

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:28.7.2009CORAM:THE HONOURABLE MR.JUSTICE G.RAJASURIACrl.R.C.No.357 of 2006andCrl.M.P.No.2121 of 2006Thangavelu... Petitioner vs.Minor Sivakumar,... Respondent rep.by his mother andnatural guardianSaraswathi Petition filed under Section 397 r/w 401 of Cr.P.C. against theorder dated 1.8.2005 passed by the Judicial Magistrate No.II,Cheyyar, Thiruvannamalai, in Crl.M.P.No.500/05 in M.C.No.1 of 2004.For Petitioner : Mr.L.PoompavaiFor Respondent : Mr.K.Shankar ORDER Challenging and impugning the order dated 1.8.2005 passed bythe Judicial Magistrate No.II, Cheyyar, Thiruvannamalai, inCrl.M.P.No.500/05 in M.C.No.1 of 2004, this criminal revision case isfocussed.2. A 'resume' of facts absolutely necessary and germane for thedisposal of this criminal revision case would run thus:-The respondent minor, through her mother and natural guardian,filed the M.C.No.1 of 2004 before the Judicial Magistrate No.II,Cheyyar, seeking maintenance as against the revision petitionerherein. The revision petitioner disputed the parentage of therespondent and he disowned the respondent as his son. Whereupon, therevision petitioner filed the Crl.M.P.No.500 of 2005 for subjectingthe respondent herein for D.N.A. test. The Magistrate dismissed thesaid petition. 3. Animadverting upon such dismissal of the petition, thisrevision is focussed on various grounds, the pith and marrow of themwould run thus:The lower Court, due to non-application of mind, failed to allowthe Crl.M.P. There are catena of decisions to the effect that D.N.A. https://hcservices.ecourts.gov.in/hcservices/ test would expose the truth. Unless there is proof to show that therespondent is the child of the petitioner, he cannot be compelled topay maintenance. The revision petitioner volunteered himself forD.N.A. test, but that was not accepted by the lower Court,unjustifiably, ignoring the fact that in summary proceedings, suchtest could be resorted to. Accordingly, the revision petitionerprays for setting aside the order of the lower Court and fordirecting the D.N.A. test to be underwent by the persons concerned. 4. When the matter came up for hearing, almost on four hearingsI heard the learned counsel for the revision petitioner elaboratelyand she could not cite any clinching evidence that even in summaryproceedings under Section 125 of Cr.P.C. D.N.A test could be ordered.5. Today the learned counsel for the revision petitioner isabsent, but only adjournment on her behalf was sought for. 6. The learned counsel for the respondent would highlight thatthe M.C. itself was filed as early as in the year 2004 and now in2009, still the revision petitioner is protracting the proceedings byfiling the said Crl.M.P. and also this revision.7. In these factual circumstance I would like to dispose of thisrevision on merits.8. The point for consideration is as to whether there is anyperversity or non-application of law in dismissing the Crl.M.P. byrejecting the request of the revision petitioner for subjecting thechild as well as himself and other persons concerned for D.N.A test.9. The learned counsel for the revision petitioner in theprevious hearings cited the decision of this Court reported in 2009(2) CLT 460 – M.Karthika vs. R.Manohar, an excerpt from it would runthus:"Held, there is no legal embargo for courts to directmedical examination by the DNA test, when circumstanceswarrant – Presumption under Section 112 of Evidence Actrequires to be rebutted by a strong piece of materialevidence, which could be obtained from the outcome of the DNAtest – Burden of proof is on the respondent, who allegesillegal legitimacy – He has to establish fact which requirespositive proof of negative plea that he has not fathered thesecond child – Circumstances necessitate issuing of directionfor DNA test."10. As per the above decision, this Court issued direction forD.N.A. test during matrimonial proceedings, so to say, in a matterrelating to F.C.O.P.No.981 of 2005. But here, the proceedings areonly under Section 125 of Cr.P.C. 11. It is a common or garden principle found laid down in catenaof decisions of the Apex Court as well as this Court that in theproceedings under Section 125 of Cr.P.C., the approach of the Courtshould be summary in nature; based on the oral and the available https://hcservices.ecourts.gov.in/hcservices/ documentary evidence, the matter has to be decided relegating theparties or driving the parties to the regular matrimonial forum toget decided their actual dispute. Curiously, in this case, therevision petitioner has chosen to file such a Crl.M.P. for subjectingthe child and himself for D.N.A. test, which in my opinion, isuntenable and the lower Court appositely and appropriately, correctlyand convincingly stated reasons for rejecting the said request,warranting no interference by this Court. 12. Primarily it is the responsibility of the revisionpetitioner herein, as petitioner before the Magistrate Court, toadduce oral evidence and documentary evidence, if any, and convincethe Magistrate and if at all the Magistrate is convinced he couldorder maintenance, which is always subject to the decision of theregular forum, namely, the civil Court or the matrimonial Court.But in this case, the insistence on the part of the revisionpetitioner that the child as well as the revision petitioner shouldbe subjected to D.N.A. test is totally untenable. 13. At this juncture, my mind is reminiscent and redolent of thefollowing decision of the Honourable Supreme Court reported in (2003)10 SCC 228-Amarjit Kaur vs. Harbhajan Singh, certain excerpt from itwould run thus:"8. Section 24 of the Hindu Marriage Act, 1955 empowers thecourt in any proceeding under the Act, if it appears to thecourt that either the wife or the husband, as the case maybe, has no independent income sufficient for her or hissupport and the necessary expenses of the proceeding, itmay, on the application of any one of them order the otherparty to pay to the petitioner the expenses of theproceeding and monthly maintenance as may seem to bereasonable during the proceeding, having regard to also theincome of both the petitioner and the respondent. Once theHigh Court, in this case, has come to the conclusion thatthe appellant wife herein has to be provided with thelitigation expenses and monthly maintenance, it is beyondcomprehension as to how, de hors the criteria laid down inthe statutory provision itself, the Court could havethought of imposing an extraneous condition, with a defaultclause which is likely to defeat the very claim which hasbeen sustained by the Court itself. Considerations as tothe ultimate outcome of the main proceeding after regulartrial would be wholly alien to assess the need or necessityfor awarding interim maintenance, as long as the marriage,the dissolution of which has been sought, cannot bedisputed, and the marital relationship of husband and wifesubsisted. As noticed earlier, the relevant statutoryconsideration being only that either of the parties, whowas the petitioner in the application under Section 24 ofthe Act, has no independent income sufficient for her orhis support, for the grant of interim maintenance, the samehas to be granted and the discretion thereafter left withthe court, in our view, is only with reference to https://hcservices.ecourts.gov.in/hcservices/ reasonableness of the amount that could be awarded and notto impose any condition, which has self-defeatingconsequence. Therefore, we are unable to approve of thecourse adopted by the learned Single Judge, in this case.9. Coming now to the nature of the condition imposed,though, it has been seriously contended for the appellantthat no such condition could have been imposed to compelthe undergoing of a DNA test of the male child, we do notpropose to express any opinion on the legality or proprietyof the court undertaking consideration at the appropriatestage, by the court competent, in the main petition of anyapplication moved in an appropriate manner according tolaw, but we would confine our consideration to the limitedaspect as to whether the High Court could have imposed sucha condition at the stage of awarding interim maintenancependente lite and that too without an application for thepurpose from the other party, at the instance of the courtby way of a suggestion put to the appellant in the courseof consideration of the application for interimmaintenance. The law in the matter governing theconsideration and passing any order in respect of a claimfor a DNA test has sufficiently been laid down by thisCourt and if a party to a proceeding cannot be compelledagainst his/her wish to undergo any such test, we fail tosee how the Court on its own could have imposed a conditionwithout any consideration whatsoever of any of the criterialaid down by this Court, by adopting a novel device ofimposing it as a condition for the grant of the interimmaintenance, with a default clause, which as rightlycontended for the appellant, will have the inevitableconsequence of predetermining the claim about the parentagewith serious consequences even at the preliminary stage.The procedure, thus, adopted by the High Court does notappear to be either just or reasonable or in conformitywith the principles of law laid down by this Court andconsequently the order is liable to be set aside. Thedecision in Dwarika Prasad Satpathy v. Bidyut Prava Dixitrelied on for the respondent, in our view, has no relevanceor application to the case on hand. That was a casewherein, in dealing with a claim for maintenance invokingthe summary proceedings under Section 125 CrPC, the husbandattempted to defeat the claim made by the wife by assertingnon-performance of essential rites at the time of marriage,the factum of which as well as the parentage of the childcould not be questioned. In the process of ascertaining thegenuineness of the said stand, when the suggestion made tothe husband to undergo a DNA test was refused by him, andthe court dealing with the application by summaryproceedings chose to observe that the husband wasdisentitled to challenge the paternity of the child in theproceedings under Section 125 CrPC, this Court declined tointerfere with the order of the trial court on the question https://hcservices.ecourts.gov.in/hcservices/ of prima facie satisfaction recorded as to the proof ofmarriage. We see absolutely no general principle of lawlaid down in this case which could be said to lend anysupport to the plea on behalf of the respondent. We areunable to persuade ourselves to agree with the plea urgedfor the respondent that the case does not warrant ourinterference in these appeals, since we find that a seriousand flagrant violation of law has been committed by theHigh Court in the matter disposing of the revision andreview petition, and the same ought not to be allowed toget sanctified, with our approval, too."14. A plain reading of the above judgement would indicate andcannot that in summary proceedings, when child is in need ofmaintenance, the Court would not be justified in driving the seekerof the maintenance from pillar to post for getting such minimumsuccor. 15. The facts involved in this case would speak by itself thatever since 2004, the M.C. case is pending because of the attitude ofthe revision petitioner herein. Hence, I am of the view thatabsolutely there is no ground for interfering with the order of thelower Court. Accordingly, the criminal revision case is dismissedwith the direction that the Magistrate, on receipt of a copy of thisorder, shall see that within a period of six weeks, the M.C. itselfis disposed of as per law, after hearing both sides and entertainingthe evidence. Consequently, connected miscellaneous petition isdismissed. Sd/- Asst. Registrar / True Copy / Sub.Asst Registrar mskToThe Judicial Magistrate No.II,Cheyyar, Thiruvannamalai+ 1 cc to M/s.K.Shankar,Advocate,SR.33008+ 1 cc to Ms.L.Poompavai,Advocate,SR.32735Crl.R.C.No.357 of 2006KJ(CO)EM/10.8.09