The revision petitioner herein is the husband of the respondent herein. The respondent herein filed an application before the learned Judicial Magistrate-I, Virudhachalam, under Section 125 Code of Criminal Procedure, claiming maintenance for her and her minor son and the said proceeding is pending in M.C.No.1/2006.
2. The petitioner herein filed an application before the Trial Court seeking direction to subject the child, petitioner and the respondent herein for D.N.A. Test. According to the petitioner herein, the marriage was performed on 13.09.2000 and they lived together only till 13.12.2000. From 14.12.2000, there was no connection between the husband and wife and the respondent herein was having illicit intimacy with another person. The respondent herin gave birth to a child on 13.11.2001 and according to the petitioner herein, he is not the father of the child. The said application was dismissed by the learned Magistrate on the ground that the respondent herein cannot be compelled to subject herself to D.N.A. Test, since the respondent herein was not ready to undergo the D.N.A. Test. Aggrieved by the said order, the petitioner herein has preferred this criminal revision.
3. Though a notice was ordered to the respondent herein and Mr.T.Sivagnanasambandan, learned counsel entered appearance on behalf of the respondent and as he submitted that he had no instruction from the respondent and withdrawn his appearance, Mrs. Jayashree Baskar was appointed as Legal Aid Counsel for respondent herein on 02.09.2009.
4. The learned counsel for the petitioner submits that the petitioner herein, had filed a counter before the learned Magistrate and even at the initial stage, the petitioner denied the paternity of the child. The learned counsel for the petitioner further submitted that the learned Magistrate erred in relying on the decision reported in AIR 1993 SC 2295, without considering the present position laid down by the Hon'ble Supreme Court in Sharda Vs. Dharmpal reported in 2003 (2) CTC 760. The learned counsel for the petitioner also relied on the decision of this Court reported in 2009 (1) CTC 141 (Veeran Vs. Veeravarmalle). Relying on both the decisions, the learned counsel for the petitioner submitted that there is no question of compelling the respondent to subjecting her to D.N.A. Test, but in order to prove the case of the petitioner herein, a fair opportunity should be given to him.
5. According to Mrs.Jayashree Baskar, learned counsel appearing for the respondent submitted that proceeding under
Section 125 Code of Criminal Procedure is only a Summary Proceeding in nature and the party comes for immediate relief and as such, the proceedings cannot be delayed by directing the parties or subjecting the parties to D.N.A. Test. The learned counsel for the respondent further submitted that the petitioner had filed the application only to drag on the proceedings. The learned counsel further submitted that the case is to be decided on preponderance of probabilities and the issue has to be resolved on the basis of the evidence let in by both parties. The learned counsel for the respondent also relied on decision reported in 2008 CRI.L.J. (NOC) 689 (ALL.) Alok Banerjee Vs. Smt. Atoshi Banerjee and also relied on the decision reported in 2007 CRI.L.J. (NOC) 518 (CHH.) Sharik Ahmad Vs. Sundarlal. The learned counsel for the respondent further submitted that only for the Civil Court in the matrimonial proceedings, a petition could be filed for a D.N.A. Test and not in proceeding under
Section 125 Criminal Procedure Code.
6. This Court considered the submissions made by both parties and also perused the materials available on record.
7. According to the petitioner herein, the marriage was performed on 13.09.2000 and both the petitioner and the respondent lived together till 13.12.2000. From 14.12.2000, the petitioner did not have any affair with respondent and she was having illicit intimacy with one Selvaraj and the child which was given birth by the respondent on 30.11.2001 is not the child of the petitioner. As the petitioner denied the paternity of the child, in order to prove his case, he has filed an application before the learned Magistrate to subject the petitioner, the respondent and the child for D.N.A. Test. A counter also has been filed by the respondent herein, in which the respondent herein has stated that after marriage on 13.09.2000, for a period of one year and six months both husband and wife lived together and the child Shyamkumar is the son of the petitioner. The respondent herein also denied the illicit intimacy with the said Selvaraj. The respondent herein also did not accept for the D.N.A. Test.
8. The learned Magistrate had dismissed the application relying on the decision reported in AIR 1993 SC 2295, wherein it is observed as follows:
"The Court cannot compel a person to give the sample of blood. However, if that person refuses to give blood sample without any valid reason the Court is at liberty to draw the inference as a necessary corollary in sequel thereof."
9. The Hon'ble Supreme Court had observed in the decision Sharda 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, say on the ground of impotency, schizophrenia... etc... normally without there being medical examination, it would be difficult to arrive at a conclusion as to whether the allegation made by his spouse against the other spouse seeking divorce on such a ground, is correct or not. In order to substantiate such allegation the petitioner would always insist on medical examination. If respondent avoids such medical examination on the ground that it violates his/her right to privacy or for a matter right to personal liberty as enshrined under
Article 21 of Constitution of India, then it may in most of such cases become impossible to arrive at a conclusion. It may render the very grounds on which divorce is permissible nugatory. Therefore, when there is no right to privacy specially conferred by
Article 21 of the Constitution of India and with the extensive interpretation of the phrase "personal liberty" this right has been read into
Article 21, it cannot be treated as absolute right. What is emphasized is that some limitations on this right have to be imposed and particularly where two competing interests clash. In matters of aforesaid nature where the legislature has conferred a right upon his spouse to seek divorce on such grounds, it would be the right of that spouse which comes in conflict with the so-called right to privacy of the respondent. Thus the Court has to reconcile these competing interests by balancing the interests involved.
72. If for arriving at the satisfaction of the Court and to protect the right of a party to the lis who may otherwise be found to be incapable of protecting his own interest. The Court passes an appropriate order, the question of such action being violative of
Article 21 of the Constitution of India would not arise. The Court having regard to
Article 21 of the Constitution of India must also see to it that the right of a person to defend himself must be adequately protected.
73. It is, however, axiomatic that a Court shall not order a roving inquiry. It must have sufficient materials before it to enable it to exercise its discretion. Exercise of such discretion would be subjected to the supervisory jurisdiction of the High Court in terms of Section 115 of the Code of Civil Procedure and or
Article 227 of the Constitution of India. Abuse of the discretionary power at the hands of a Court is not expected. The Court must arrive at a finding that the applicant has established a strong prima facie case before passing such an order.
74. If despite an order passed by the Court, a person refuse to submit himself to such medical examination, a strong case for drawing an adverse inference would be made out. Section 114 of the Indian Evidence Act also enables a Court to draw an adverse inference if the party does not produce the relevant evidence, in his power and possession.
75. So viewed, the implicit power of a Court to direct medical examination of a party to a matrimonial litigation in a case of this nature cannot be held to be violative of one's right of privacy.
To sum up, our conclusions are:
1.A matrimonial Court has the power to order a person to undergo medical test.
2.Passing of such an order by the Court would not be in violation of the right to personal liberty under
Article 21 of the Indian Constitution.
3.However, the Court should exercise such a power if the applicant has a strong prima facie case and there is sufficient material before the Court. If despite the order of the Court, the respondent refuses to submit himself to medical examination, the Court will be entitled to draw an adverse inference against him."
The above said decision of the Hon'ble Supreme Court has been followed by this Hon'ble High Court in Veeran Vs. Veeravarmalle reported in 2009 (1) CTC 141, wherein it is observed as follows:
"Thus, the above judgment of the Hon'ble Apex Court will make it very clear that the order of the Court below directing the petitioner to undergo D.N.A Test would not be in violation of the right to his personal liberty guaranteed under
Article 21 of the Constitution of India and it will not be violative of the petitioner's right of privacy."
The above cited decision of the Hon'ble Supreme Court makes it clear that, Court has power to order a person to undergo medical test.
10. The learned counsel for the respondent raised an objection stating that such a direction for medical test would be given only in matrimonial Court and not in proceeding under
Section 125 Code of Criminal Procedure. This Court feels that the above contention of the respondent does not hold good. Though the proceeding under
Section 125 Code of Criminal Procedure is only a Summary Trial Proceeding, the issue involved in the case is also similar to the case involved in the matrimonial litigation. When the petitioner denies the paternity of the child, an opportunity should be given to the petitioner to prove his case, since the case is to be decided only on the preponderance of probabilities.
11. In the decision cited by the learned counsel for the respondent Alok Banerjee Vs. Smt. Atoshi Banerjee, reported in 2008 CRI.L.J. (NOC) 689 (ALL.)=2008 (2) ALJ 560, the head note is as follows:
"Criminal P.C (2 of 1974), S.125 (1)(b) Evidence Act (1 of 1872), S.112 - Maintenance of child Duties lies on a person having sufficient means to maintain his legitimate or illegitimate minor child whether married or not It is immaterial whether child was legitimate or illegitimate Eliciting finding about legitimacy or illegitimacy of child, not necessary Direction for conducting DNA test for determining paternity of child cannot be issued."
The full details of the judgment is not available before this Court. It is not known under what circumstances, direction of conducting of D.N.A. Test and determination of paternity of the child was not issued.
12. In the decision cited by the learned counsel for the respondent 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 DNA test Are to be issued only when Court is unable or it is impossible to draw an inference or adverse inference on basis of evidence and issue cannot be resolved without DNA test application for grant of maintenance filed by child respondent disputing paternity of child Directions for DNA test without examining paternity on basis of other evidence Not proper."
It appears from the above decision that without examining the paternity on the basis of other evidence, it is not proper for directing for D.N.A. Test. Even as per the decision of the Hon'ble Supreme Court cited supra, such order should be made by the Court exercising its discretion, only if the applicant has strong prima facie case and there is sufficient material before the Court.
13. According to the learned counsel for the petitioner, so far evidence has not been let in, in this case. In the said circumstances, after the evidence being T. SUDANTHIRAM,J.
va let in by both the parties, it is open to the petitioner to file an application seeking direction for D.N.A. Test. But at the same time, this Court makes it clear that it is not necessary to conduct the D.N.A. Test, on both the petitioner and respondent herein and the D.N.A. Test performed on the petitioner herein, will also show whether the child was born to him or not. Once again it is made clear that it is for the learned Magistrate to consider the application filed by the petitioner for D.N.A. Test at the appropriate stage, considering the other materials available before the Court.
With these observations, the revision petition is ordered accordingly.