IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 03rd DAY OF APRIL 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.813 OF 2013 BETWEEN:
RAVEENDRA GOWDA @ RAVEENDRA M.C. S/O CHANNAPPA GOWDA AGED ABOUT 52 YEARS AGRICULTURIST R/O MALLANDUR ANADAPURAM HOBLI SAGAR TALUK-577401 SHIVAMOGGA DISTRICT (BY SRI: PRUTHVI WODEYAR, ADVOCATE) AND 1. SMT. RENUKA W/O RAVEENDRA GOWDA AGED ABOUT 41 YEARS 2. KUMARI SHILPA D/O RAVEENDRA GOWDA AGED ABOUT 17 YEARS REP BY HER MOTHER RESPONDENT NO.1, BOTH ARE R/O ANANDAPURAM, SAGAR TALUK ... PETITIONER SHIVAMOGGA DISTRICT-577401 (BY SMT : MAMATHA ROY, ADVOCATE FOR ... RESPONDENTS SRI : I THARANATH POOJARY, ADVOCATE) THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO SETTING ASIDE THE ORDER DATED:19.1.13 PASSED BY THE PRESIDING OFFICER, FAST TRACK COURT, SAGAR IN CRL.RP.NO.163/12 AND BY CONFIRMING THE ORDER PASSED BY THE ADDL.CIVIL JUDGE, SAGAR IN C.MISC.NO.12/06, DATED:8.11.12.
THIS CRL.P COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R In a petition filed by respondents under section 125 of Cr.P.C., respondent No.1 -wife moved an application under Section 311 Cr.P.C. to subject the petitioner for DNA examination. The petitioner opposed the said application. By the order dated 08.11.2012, the learned Magistrate dismissed the said application. As against the said order, the respondent No.1- wife carried the matter in revision viz., Crl.R.P.No.163/2012 before the Fast Track Court at Sagar and by the impugned order dated 19.01.2013, the learned Sessions Judge allowed the revision petition and consequently, allowed the application filed by respondent No.1-wife filed under Section 311 Cr.P.C.
2. Learned counsel for the petitioner has raised two fold contentions. Firstly, the Fast Track Court Judge had no jurisdiction to entertain revision petition against an interlocutory order and therefore, the impugned order having been passed without jurisdiction is liable to be quashed. Secondly, in her evidence, respondent No.1-wife has categorically admitted that she had earlier married to one Ramu. The case of the petitioner is that respondent No.2 was born to respondent No.1 through aforesaid Ramu; therefore, the learned Fast Track Court should not have directed the petitioner to undergo DNA examination. It is argued that the impugned order permitting the petitioner to undergo DNA test amounts to roving enquiry to determine the paternity of the child and the same is not permissible under law. Thus, he seeks to quash the impugned order passed by the Fast Track Court.
3. Learned counsel for the respondents’ submits that the court below having found that the proposed evidence is necessary for fair disposal of the proceedings, the impugned order cannot be faulted with and hence, seeks to dismiss the petition.
Considered the submissions and perused the records.
4. Undisputedly, the impugned order has been made in a proceeding arising under Section 125 Cr.P.C. Respondent No.1 has sought maintenance from the petitioner herein on the specific ground that she married the petitioner about 13 years from the date of filing of the petition as per Hindu rites and customs and in their wedlock, second respondent was born. Though the petitioner herein has disputed the relationship and the paternity of respondent No.2-child, yet the burden is on respondent No.1 wife to prove the marriage as well as the paternity of the child.
5. It is trite law that in a proceeding under Section 125 Cr.P.C., strict proof of marriage is not necessary. If the respondent wife is able to prove with standard of probability that she had married the petitioner and in the wedlock, a child was born, said evidence could be relied on by the Magistrate to grant maintenance to the wife and the child.
6. Records disclose that respondent No.1 had produced the transfer certificate of the second respondent before the trial court, wherein the name of the petitioner finds place. The said entry is disputed by the petitioner and the same requires to be proved. Further, respondent No.1 has also produced the ration card and identity card, wherein the petitioner herein is described as husband of respondent No.1. In the wake of this evidence, in my view, in a proceeding under Section 125 Cr.P.C, the DNA examination of the petitioner is not warranted. Even otherwise, the result of DNA is not conclusive evidence with regard to the paternity of the child. Respondent No.1 is required to prove the marriage independent of the aforesaid DNA report. Therefore, having regard to the nature of the dispute between the parties, in my view, DNA test of the petitioner is not necessary for fair disposal of the proceedings before the trial court. In that view of the matter, the application filed by the respondent wife is liable to be rejected. That apart, the learned Fast Track Court had also no jurisdiction to entertain the revision petition under Section 397 Cr.P.C. against an interlocutory order in view of the specific bar contained under Section 397(2) Cr.P.C. On both these grounds, the impugned order is liable to be set-aside.
Accordingly, the petition is allowed. The order passed by the learned Fast Track Court in Crl.R.P.No.163/2012 dated 19.01.2013 is set-aside. Consequently, the application filed under Section 311 Cr.P.C. by respondent No.1 is dismissed.
Sd/- JUDGE *mn/-