Monthly Archives: October 2014

Merely accompanying woman out to prostitute is NOT inducing even if that girl is a MINOR !! Hon. Supreme Court of India (1962 landmark case !!)

As far as I know (please post comments or correct me IF I am wrong)
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* Prostitution per se is NOT illegal in India
* However abetting, pimping, trafficking, forcing, coercing, running a brothel etc are all illegal

* This distinction and a clear definition of what is abetting / forcing comes out in this case

* Here is a case where the Hon SC has said "……A person who merely accompanies a woman going out to ply her profession of a prostitute, even if she has not attained the age of 18 years, could not be said thereby to induce her to go from any place or to do any act with the intent or knowledge that she will be forced or seduced to illicit intercourse within the meaning of s. 366 A….."
* The Hon SC also states "….Seduction implies surrender of her body by a woman who is otherwise reluctant or unwilling to submit herself to illicit intercourse in consequence of persuasion, flattery, blandishment or importunity, whether such surrender is for the first time or is preceded by similar surrender on earlier occasions. But where a woman offers herself for intercourse for money-not casually but in the course of her profession as a prostitute there are no scruples nor reluctance to be overcome, and surrender by her is not seduction within the Code. ….."

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF – Save Indian Family movement. SIF as a concept is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

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CASE FROM JUDIS / INDIAN KANOON WEB SITE
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SUPREME COURT OF INDIA

RAMESH vs THE STATE OF MAHARASHTRA

24 July, 1962

Equivalent citations: 1962 AIR 1908, 1963 SCR (3) 396

Author: S C.
Bench: Shah, J.C.

PETITIONER: RAMESH
Vs.
RESPONDENT: THE STATE OF MAHARASHTRA

DATE OF JUDGMENT: 24/07/1962

BENCH: SHAH, J.C.

BENCH:
SHAH, J.C.
SINHA, BHUVNESHWAR P.(CJ)
WANCHOO, K.N.

CITATION:
1962 AIR 1908 1963 SCR (3) 396

ACT:

Criminal Law–Seduction–Assisting prostitute in her profession–If amounts to inducement to forced or seduced illicit intercourse–Indian Penal Code (Act 45 of 1860), ss. 84, 809, 366, 366 A.

HEADNOTE:

The appellant was convicted of the offence under s. 366A read with s. 109 of the Indian Penal Code. The case against him was that A who was a minor below the age of 18 years was brought up by P and had before the date of the offence been habituated to the life of a prostitute. On the day in question the appellant went to the residence of P and asked him to bring A to a theatre, P accompanied A to the theatre where the latter sought some customers. They were taken by another person to a place called Bohori Kathada at which place A was invited for the purpose of prostitution. When P accompanied A to the theatre and from there to Bohori Kathada he knew that she was going for plying her profession as a prostitute.

Held, that the appellant could not in law be held guilty of abetting the commission of an offence under s. 366A of the Indian Penal Code by P.

A person who merely accompanies a woman going out to ply her profession of a prostitute, even if she has not attained the age of 18 years, could not be said thereby to induce her to go from any place or to do any act with the intent or knowledge that she will be forced or seduced to illicit intercourse within the meaning of s. 366 A.

Seduction implies surrender of her body by a woman who is otherwise reluctant or unwilling to submit herself to illicit intercourse whether such surrender is for the first time or is preceded by similar surrender on earlier occasions ; but where a person in the course of her profession as a prostitute offers herself for profession as a prostitute offers herself for intercourse, there are no sucruples nor reluctance to be overcome, and surrender by her is not seduction within the Code.

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 72 of 1961.

Appeal by special leave from the judgment and order dated December 20, 1960, of the Bombay High Court in Criminal Apeal No. 1207 of 1960.

Jai Gopal Sethi, C.L. Sareen and R.L. Kohli, for the appellant, G. C. Mathur and P. D. Menon, for the respondent. 1962. July 24. The Judgment of the Court was delivered by SHAH, J.–On May 1, 1962, we ordered after arguments were concluded that the appeal be allowed and the conviction of the appellant be set aside. We now proceed to record our reasons in support of the order.

The appellant, Ramesh Amin, and seven others were tried in the Court of Session, Aurangabad, for offences punishable under ss. 366, 366A. Indian Penal Code, and abetment thereof. The appellant was the third accused at the trial. The Sessions Judge convicted accused Nos. 1 to 4 and 7 of the offences charged against them and sentenced them to suffer rigorous imprisonment for two years for each offence, and acquitted the rest. The High Court of Bombay entertained appeal of accused Nos. 1 to 4 (but not of accused No. 7) and set aside the order of conviction and sentence against them for the offences punishable under s. 366 read with s. 34 and s. 366A of the Indian Penal Code. The High Court, however, convicted the appellant of abetting the seventh accused in inducing a minor girl, Anusaya, to go with other persons from her residence at Kabadipura to Gulzar Theatre, and then to a house known as Bohori Kathada with intent that she may or knowing that she was likely to be seduced to illicit intercourse. With special leave the appellant has appealed to this Court.

The seventh accused, Patilba, is a resident of Aurangabad, and the eighth accused is his wife. Anusaya is the daughter of Shakuntala by her husband Kashinath. After the death of Kashinath, Shakuntala brought her infant daughter Anusaya to the house of Patilba and started living with him as his mistress. Sometime later Shakuntala left the house of Patilba and took up residence at Nasik but Anusaya ‘continued to live with Patilba and was brought up by him. Marriage was arranged by Patilba between Anusaya and one Ramlal, but Anusaya declined to live with her husband. Patilba introduced Anumaya to some "customers" and she started indulging in promiscuous intercourse, for money. It was the prosecution case that on January 13, 1960, the appellant went to the residence of Patilba and asked him to bring Anusaya and one Chandrakala (a woman following the profession of a prostitute) to the Gulzar Theatre, and accordingly, Patilba, the eighth accused, Chandrakala and Anusaya went to the Theatre. At the instance of the appellant, Anusaya and Chandrakala were taken by one Devidas (who has given evidence as an approver) to Bohori Kathada. Sub-Inspector Pagare of the Police Station City Police Chowk, Aurangabad, had received information that some persons were consuming illicit liquor in a room at Bohori Kathada and he arranged to raid that house. Pagare found accused Nos. 1 to 5 and Devidas in a room consuming liquor. He also found Chandra- kala and Anusaya in an inner apartment, Persons found in the room were arrested and sent for medical examination to the local Civil Hospital, and it was found that Anusaya had not attained the age of 18 years. Pagare then laid an information before the Judicial Magistrate, Aurangabad, for offence punishable under the Bombay Prohibition Act, 1949- (we are informed at the Bar that in respect of those offences the accused were acquitted and we are not concerned in this case with those offence) and also for offences punishable under ss. 366 and 366A of the Indian Penal Code against nine persons including the appellant, Patilba and Devidas. In the course of proceedings for commitment to the Court of Session, Devidas was tendered pardon on condition of his making a full disclosure of the circumstances within his knowledge. The case was then committed to the Court of Session, Aurangabad for trial. The Court of Session held that accused Nos. 1 to 4 had in furtherance of their com- mon intention kidnapped Anusaya a girl below the age of 18 years-in order that she may be forced or seduced to illicit intercourse or knowing it to be likely that she would he forced or seduced to illicit intercourse, and the seventh accused Patilba had abetted the commission of that offence, and that accused Nos. 1 to 4 and 7 had induced Anusaya to go from her residence to the Gulzar Theatre and from the theatre to Bohori Kathada with intent that she may be or knowing that it was likely that she would be forced or seduced to illicit intercourse. He accordingly convicted accused Nos. 1 to 4 of the offence under s. 366 read with s. 34 of the Indian Penal Code and also of the offence under a. 366A of the Indian Penal Code.

The High Court of Bombay in appeal acquitted accused Nos. 1 to 4 of the offence of kidnapping because, in their view, accused Nos. 1 to 4 had "nothing whatever to do with the original kidnapping by Patilba (the 7th accused) and since he was not the lawful guardian of this girl, her being bro- ught to this room cannot be regarded as kidnapping".
The learned Judges also acquitted accused Nos, 1 to 4 of the offence under s. 366A observing that ,,there is no evidence of any direct talk between any of the accused and the girl, nor even of any inducement offered through Patilba (accused No. 7). Even so far as accused No, 3 is concerned, there is no direct talk between Anusaya and accused No, 3 which can be regarded as an inducement to her to move either from the house of Patilba or from the theatre to the room in question." But in their view the case against tile appellant "did not end with this" :

They observed.

"The evidence…………………… clearly indicates that accused No. 3 instigated Pat- ilba and Devidas to bring the girl to the theatre and thereafter to the room in question. Patilba, as we have stated, being in custody of this girl and the girl being minor and helpless, induced or forced her to go to the cinema and thereafter to this room and actually left her there. So far Patilba was concerned, he intended that she should be forced or seduced to illicit intercourse by one or the other of the accused. Accused No. 3 by asking Patilba to bring the girl to the theatre and asking Devidas and Patilba to bring the girl to the room clearly instigated Patilba in the comm- ission of this offence. He must, therefore, be held clearly guilty of the offence of abetment of this offence by Patilba."

The High Court accordingly convicted the appellant of the offence under s. 366A read with s. 109 of the Indian Penal Code, because, in their view, he had abetted the commission of an offence punishable under s. 366A by Patilba by instigating the latter to bring Anusaya to the theatre and by by further instigating Patilba and Devidas to bring Anusaya from the theatre to Bohori Kathada. In our view, the appellant cannot in law be held guilty of abetting the commission of an offence punishable under s. 366A, Indian Penal Code, by Patilba.

The facts proved by the evidence are these:

Anusaya at the material time had not attained the age of 18 years. She was brought up by Patilba and even though she had married Ram Lal she was at the material time and for many months before living under the guardianship of Patilba.

For a long time before the date of the offence Anusaya was accustomed to indulge in promiscuous intercourse with customers" for money. She used to entertain, as she herself admitted, "one or two customers every day" and bad before the date of the offence been habituated to the life of a prostitute. On the day in question she and her companion Chandrakala went to the Gulzar Theatre accompanied by Patilba. In the theatre Anusaya and Chandrakala were seeking customers: they repaired during the break in the show to the entrance of the theatre for that purpose, but she had to return disappointed because they found a police van parked near the entrance. Anusaya and the 6th accused went to Bohori Kathada for carrying on their profession as prostitutes. There is no evidence that she was not willing to go to Gulzar Theatre on the night in question nor is there any evidence that she was unwilling to go to Bohori Kathada to which she and her companion were invited for the purpose of prostitution.

Do these facts make out a case against the appellant of abetment of the offence of procuration of a minor girl punishable under s. 366A of the Indian Penal Code? Section 366A was enacted by Act XX of 1923 to give effect to certain Articles of the International Convention for the Suppression of Traffic in Women and Children signed by various nations at Paris on May 4, 1910.

There are three principal ingredients of the offence:

(a) that a minor girl below the age of 18 years is induceed by the accused,

(b) that she is induced to go from any place or to do any act, and

(c) that she is so induced with intent that she may be or knowing that it is likely that she will be forced or seduced to illicit intercourse with another person

The evidence clearly establishes that Anusaya had not at the material time attained the age of 18 years. But there is no evidence on the record that Patilba induced Anusaya to go to the theratre or from the theatre to Bohori Kathada. It must be assumed that when Patilba accompanied Anusaya to the theatre and from the theatre to the Bohori Kathada at the suggestion of the appellant he knew that she was going for plying her profession as a prostitute. But in our judgment a person who merely accompanies a woman going out to ply her profession of a prostitute, even if she has not attained the age of eighteen years, does not thereby commit an offence under s. 366A of the Indian Penal Code. It cannot be said that thereby he induces her to go from any place or to do any act with the intent or knowledge contemplated by the section.

We agree that seduction to illicit intercourse contemplated by the section does not mean merely straying from the path of virtue by a female for the first time. The verb "seduce’ is used in two senses. It is used in its ordinary and narrow, sense as inducing, a woman to stray from the path of virtue for the first time: it is also used in the wider sense of educing a woman to submit to illicit intercourse at any time or on any occasion. It is in the latter sense that the expression has been used in as. 366 and 366A of the Indian Penal Code which sections partially overlap.

This view has been taken in a large number of cases by the Superior Courts in India, e. g. Prafula kumar Basu v. The Emperor (1), Emperor v. Laxman Bala (1), Krishna Maharana v. The King Emperor (3), In re Khalandar Saheb (4) Suppiah v. Emperor (5), Pessumal v. Emperor (6), King Emperor v. Nga Ni Ta (7) and Kartara v. The State (8). The view expressed to the contrary in Emperor v. Baijnath (9), Saheb Ali v. Emperor (11) Aswini Kumar Roy v. The State (10) and Nara v. Emperor (12) that the phrase used in s. 366 of the Indian Penal Code is "Properly applicable to the first act of illicit intercourse, unless there be proof of a return to chastity on the part of the girl since the first act" is having regard to the object of the Legislature unduly restrictive of the content of the expression "seduce" used in the Code.

But this is not a case in which a girl who had strayed from the path of virtue when she was in the custody of her guardian and had with a view to carry on her affair accompanied her seducer or another person. Such a case may certainly fall within the terms of s.366 or s.366A whichever applies.

But where a woman follows the profession of a prostitute, that is, she is accustomed to offer herself promiscuously for money to "customers", and in following that profession she is encouraged or assisted by someone, no offence under s. 366A is committed by such person, for it cannot be said that the person who assists a girl accustomed to indulge in promiscuous intercourse for money in carrying on her profession acts with intent or knowledge that she will be forced or seduced to illicit intercourse. Intention on the part of Patilba or knowledge that Anusaya will be forced to subject herself to illicit intercourse is ruled out by the evidence: such a case was not even suggested. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

Seduction implies surrender of her body by a woman who is otherwise reluctant or unwilling to submit herself to illicit intercourse in consequence of persuasion, flattery, blandishment or importunity, whether such surrender is for the first time or is preceded by similar surrender on earlier occasions. But where a woman offers herself for intercourse for money-not casually but in the course of her profession as a prostitute there are no scruples nor reluctance to be overcome, and surrender by her is not seduction within the Code. It would then be impossible to hold that a person who instigates another to assist a woman following the profession of a prostitute abets him to do an act with intent that she may or with knowledge that she will be seduced to illicit intercourse.

Appeal allowed.

(1) (1929) I. L. R. 57 Cal. 1074

(2) (1934) I. L. R. 59 Bom. 652.

(3) (1929) I. L. R. 9 Pat. 647.

(4) A. I. R. 1955 A. P. 59.

(5) A. I. R. 1930 Mad. 930.

(6) (1924) 27 Cr. L. J. 1292.

(7) (1903) 10 Burma L. R. 196.

(8) I. L. R. [1957] Punjab 2003.

(9) (1932) I. L. R. 54 All. 756.

(10) (1933) I. L. R. 60 Col. 1457

(11) A. I. R. 1955 Cal. 100.

(12) A. I. R. 1934 Lah. 227.

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regards

Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

WHY the gummint wants to increase the LEGAL AGE OF MARRIAGE FOR GIRLS !!!! so that father can control them more !!!

In this case a father tries to say 20yr old daughter kidnapped & files Habeas Corpus but daughter says there is NO such harassment ! Note the date of birth as per daughter !!

* Father files a Habeas Corpus saying his 18 YEAR OLD daughter !! has been kidnapped and so should be brought to court and released !!
* Daughter comes to court and says she is 19 years old !! her date of birth is 09.05.1995

* Her lovers date of birth is 15.07.1994 so he is 20 !!

* After that laddu (good news) distribution all go away !!

* the sad fact is that there are 100s of such cases every year !!!

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF – Save Indian Family movement. SIF as a concept is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

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CASE FROM JUDIS / INDIAN KANOON WEB SITE
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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 15.07.2014

Coram

THE HONOURABLE MR.JUSTICE S.MANIKUMAR
AND
THE HONOURABLE MR.JUSTICE V.S.RAVI

H.C.P.(MD) No.639 of 2014

V.Muthuraman, M/52 years
S/o.Veeranan,
Alagitchipatti,
Melur Taluk,
Madurai District. . . Petitioner
Vs.
1.The Superintendent of Police,
Madurai Rural,
Madurai District.
2.The Inspector of Police,
Karuppayoorani Police Station,
Madurai District.
3.The Sub Inspector of Police,
Kellavalavu Police Station,
Melur, Madurai.
4.Mr.Vijay @ Ragu
5.Subbaiah
6.Marimuthu . . Respondents

Petition filed under Article 226 of the Constitution of India to issue a writ of Habeas Corpus directing the respondents to produce the body of the detenue namely Manohari, D/o.V.Muthuraman, age about 18 years before this Court and set her at liberty.

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For Petitioner : Mr.A.V.Arun
For Respondents :Mr.C.Mayilvahana Rajendran for R1 to R3
Additional Public Prosecutor
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:ORDER

[Order of the Court was made by V.S.RAVI, J]

Today, when the matter is called in open Court, the learned counsel for the petitioner, the petitioner, the detenue and the fourth respondent are present. The fourth respondent submitted that his date of birth is 15.07.1994. The petitioner identified the detenue. The detenue has categorically stated that there is no harassment or torture caused to her by any one and her date of birth is 09.05.1995. Recording the same, the Habeas Corpus Petition is closed.

To

1.The Superintendent of Police, Madurai Rural, Madurai District.

2.The Inspector of Police, Karuppayoorani Police Station, Madurai District.

3.The Sub Inspector of Police, Kellavalavu Police Station, Melur, Madurai.

4.The Additional Public Prosecutor Madurai Bench of Madras High Court, Madurai.

http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

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FOLLOW http://twitter.com/ATMwithDick on twitter or https://vinayak.wordpress.com/ on wordpress or http://evinayak.tumblr.com/ FOR 100s of high court and supreme court cases

regards

Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

BOTH PARENTS responsible for child. Silver lining though low earning hubby pays high earning wife !!

Hon Bombay HC : BOTH PARENTS are responsible for child. Silver lining in a case where a hubby with lower earnings ( Rs 35000 p.m.) pays a wife earning much more (Rs 61000/- p.m.) !!

* Wife earning Rs 61000 / pm and husband who has lost earlier job is now earning 35000 / pm
* Wife has filed DV case and got residence order at family court
* Husband seems to have terminated lease for the how
* So family court has ordered Rs 8000 in lieu of rent for alternate premesis by wife (respondent herein)
* Husband moves HC. HC Sends them to mediation, when mediation fails the case is taken up

* Husband has challenged this order on multiple grounds
*** The order u/s 19 of DV act was made before the petition u/s 12 of DV act was closed. Hon HC dismisses this contention and says residence can be granted because wife filed the residence requirement along with sec 24 HMA in family court !! So hubby has to pay moolah
*** Wife claims that she is paying Rs 9000 rent to her own brother who owns the house !! this is not true . Hon HC dismisses this contention as well saying brother need not provide free house for sister and nephew !!
*** So, at first brush, it looks like the husband with a much smaller salary has to pay the wife with a much larger salary and that is unfair !!
*** But in the course of the discussion the court has opined that BOTH parents are responsible for the upkeep of the kid. The Hon HC says "….There can be no serious doubt that the responsibility to provide for not mere maintenance but also shelter to the minor child, is equally that of both the parents. …."
*** The Hon HC continues "…….The phrase ‘having regard to financial needs and resources of the parties’ is required to be interpreted in a reasonable manner. All that the phrase requires is that the court must have due regard to both the financial needs and the resources of the parties. Therefore, in making orders under sub section (1) of section 19 of the D.V. Act, the court is not expected to impose some undue burden on any of the parties, by emphasizing disproportionately upon the needs and ignoring the aspect of resources. However, this does not mean that in a situation where one of the spouses has the resource to provide for the minor children, the other spouse ought to be completely relieved of his obligation to provide for the same. ….."

* This is a CLASSIC case that can be used by husbands who have working / earning wives !!!

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF – Save Indian Family movement. SIF as a concept is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

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CASE FROM JUDIS / INDIAN KANOON WEB SITE
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 6852 OF 2013

Mr. Amit Satish Shah ..Petitioner
versus
Mrs. Archana Amit Shah & Anr. ..Respondents

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Mr. J. S. Kapre for Petitioner.
Ms. Seema Sarnaik for Respondent.
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CORAM : M. S. SONAK, J.

Date of Reserving the Judgment : 11 September 2014
Date of Pronouncing the Judgment : 14 October 2014

JUDGMENT :-

1] This petition is directed against the order dated 11 March 2013 made by the Family Court directing the petitioner to pay rent / licence fee towards the ‘share household’ i.e. flat No. B/20, Pournima Park, Salisibury Park, Pune or in the alternate to make arrangement for alternative premises for the respondent and minor child on or before the termination of the leave and licence in respect of the share household or pay an amount of Rs.8,000/- per month towards rent for acquisition of alternate premises by the respondent.

2] As of now, the respondent and the minor child have acquired alternate premises, in respect of which the respondent claims to pay rent of Rs.9,000/- per month. The petitioner disputes this position by asserting that the premises wherein the respondent now resides, are premises owned by her own brother and therefore the respondent cannot be said to be paying any rent for such premises. Besides, the petitioner points out that the respondent owns yet another premises, which she has rented out for Rs.7,000/- per month. On these grounds as also others adverted to hereafter, the learned counsel for the petitioner contends that the impugned order is liable to be interfered with.

3] Mr. Kapre, learned counsel for the petitioner, apart from making the aforesaid contentions, submitted that there is material on record which establishes that the respondent is an I.T. Professional currently earning about Rs.61,000/- per month. In contrast, the petitioner having lost his previous job, has presently taken up new employment which earns him hardly Rs.35,000/- per month. The Family Court, in making the impugned order has glossed over such relevant and vital circumstances. Further, the Family Court had no jurisdiction in making the impugned order even before the main application under Section 12 of The Protection of Women from Domestic Violence Act, 2005 (D.V. Act) could be disposed of. Mr. Kapre submitted that residence order under Section 19 of the D.V. Act can be made only whilst disposing of an application under sub section (1) of Section 12 of the D.V. Act and not prior to the same. Further, in making any residence order, the Court is required to have regard to the financial needs and resources of the parties, which in present case, the Family Court has completely disregarded. For all these reasons, learned counsel submitted that the impugned order is liable to be interfered with. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

4] On the other, Ms. Sarnaik, learned counsel for the respondent submitted that the impugned order has been made in the proceedings instituted by the petitioner under Section 13 of the Hindu Marriage Act, 1955. In such proceedings, the respondent has made an application under Section 24 of the Hindu Marriage Act, 1955 read with Section 19 of the D.V. Act, which is perfectly permissible course of action to adopt. In such circumstances, there was no bar to making of a residence order under Section 19 of the D.V. Act.

5] Ms. Sarnaik submitted that the petitioner despite means and obligation, defaulted in securing the renewal of leave and licence in respect of the share household with the sole intention of harassing the respondent and their minor child. There is no basis to assume that the petitioner earns any rent from her own apartment, which incidentally is not even occupied by her and further the respondent pays rent of Rs.9,000/- to her brother, in respect of the premises which she presently occupies along with her minor son. Ms. Sarnaik further submitted that the petitioner has not only the means to pay but further obligation to pay towards the premises presently occupied by the respondent and the minor child. In so far as the respondent’s income is concerned, the same is quite irrelevant at the present stage, particularly since the impugned order does not concern the issue of maintenance. For all these reasons, she submitted that the impugned order ought not to be interfered with.

6] There is no merit in the submission that the Family Court could not have made a residence order and that such an order can be made only at the stage of final disposal of the proceedings. Section 12 of the D.V. Act enables an aggrieved person or protection officer or any other person on behalf of the aggrieved person to present an application to the Magistrate to seek one or more reliefs under the D.V. Act. One of the reliefs contemplated is in the context of right to reside in a share household. To enforce such a right, an application under Section 12 can be made by the aggrieved person as also others referred to in Section 12 of the D.V. Act, to the Magistrate. It is in this context that Section 19 of the D.V. Act provides that while disposing of an application under sub section (1) of Section 12, the Magistrate may, on being satisfied that the domestic violence has taken place pass a residence order. This is again to be read and understood in the context of provisions contained in Section 26 of the D.V. Act, which reads thus :

"26. Relief in other suits and legal proceedings.-

(1) Any relief available under sections 18, 19, 20, 21 and 22 may also be sought in any legal proceeding, before a civil court, family court or a criminal court, affecting the aggrieved person and the respondent whether such proceeding was initiated before or after the commencement of this Act.

(2) Any relief referred to in sub-section (1) may be sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceeding before a civil or criminal court.

(3) In case any relief has been obtained by the aggrieved person in any proceedings other than a proceeding under this Act, she shall be bound to inform the Magistrate of the grant of such relief."

7] From the aforesaid, it is evident that any relief which is available under Sections 18 to 22 of the D.V. Act from the Magistrate may also be sought in any legal proceedings, before a civil court, family court or a criminal court, affecting the aggrieved person and the respondent, whether such proceedings were initiated before or after commencement of the Act.

Sub Section (3) of Section 26 only provides that in case any relief has been obtained by the aggrieved person in any proceedings other than the proceedings under the D.V. Act, then she should be bound to inform the Magistrate of the grant of such relief or perhaps so that such relief is not obtained twice over. In the present case, as noted earlier, relief in terms of section 19 of the D.V. Act was claimed by the respondent in the proceedings before the Family Court under the Hindu Marriage Act, which is clearly permissible in the light of provisions contained in Section 26 of the D.V. Act. Section 24 of the Hindu Marriage Act, 1955 specifically empowers the parties to claim maintenance pendente lite and expenses of the proceedings. The Family Court, by virtue of Section 26 of the D.V. Act is empowered to grant reliefs, inter alia under Section 19 of the D.V. Act. In such a situation, there is no question of either making any application under Section 12 of the D.V. Act or awaiting the disposal thereof. There is no question of awaiting the disposal of the main proceedings under the Hindu Marriage Act, 1955 and only at that stage making a residence order in terms of Section 19 of the D.V. Act. If such a strained interpretation is permitted to prevail, then the very object of enabling the court to make residence orders, is likely to be frustrated. Therefore, there is no jurisdictional error in making of the impugned order.

8] In the making of a residence order, no doubt the court is required to have due regard to financial needs and the resources of the parties. In this case, there is material on record which indicates that the respondent has her own independent financial income. However, the petitioner, admittedly has to provide for the minor child. At the present stage, we are not concerned with the issue of maintenance per se. However there is nothing on record to indicate that the petitioner has been providing for any maintenance with respect to the minor child or his educational or medical needs. There can be no serious doubt that the responsibility to provide for not mere maintenance but also shelter to the minor child, is equally that of both the parents. In these circumstances, if the impugned order, requires the petitioner to bear the expenses to the extent of Rs.8,000/- per month towards providing of shelter to the respondent and the minor child, there is nothing either unreasonable or unjustified in the same. This is not a case where the Family Court has completely disregarded the financial needs and resource of the parties. The test, in all cases cannot be that if the wife is in a position to provide for the financial needs of the child her spouse is relieved altogether of his obligation to contribute to the financial needs of such child. The phrase ‘having regard to financial needs and resources of the parties’ is required to be interpreted in a reasonable manner. All that the phrase requires is that the court must have due regard to both the financial needs and the resources of the parties. Therefore, in making orders under sub section (1) of section 19 of the D.V. Act, the court is not expected to impose some undue burden on any of the parties, by emphasizing disproportionately upon the needs and ignoring the aspect of resources. However, this does not mean that in a situation where one of the spouses has the resource to provide for the minor children, the other spouse ought to be completely relieved of his obligation to provide for the same. Ultimately, it has to be borne in mind that the respondent in the present case continues to bear the expenses towards maintenance, educational and medical needs of the minor child. In these circumstances, if the impugned order, requires the petitioner to make a contribution of Rs.8,000/- per month towards the residence requirements, then there is nothing unreasonable, which warrants interference of this court in the exercise of powers of judicial review. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

9] The submission that the premises in which the respondent and the minor child presently reside is owned by the respondent’s brother and the inference therefrom that the respondent must not be paying any rent to her own brother, cannot be accepted. In any case, there is no reason to probe into this aspect any deeper. There is no legal requirement at least in the present case, that the respondent’s brother provides for the respondent and the minor child some residence gratis, so that the petitioner is relieved of his obligation to make some reasonable contribution, at least towards the residence requirements of the minor child, even if, similar claim of the wife is to be ignored at the present stage.

10] Therefore, there is no need to interfere with the impugned order. The petition is liable to be dismissed. The interim order, if any, to stand vacated. In the facts and circumstances of the present case, there shall be no order as to costs.

11] The parties were referred to mediation with a view to arrive at some amicable settlement, particularly as interest of minor child was involved. The Mediator, Advocate P. K. Gaikwad made earnest efforts as Mediator. However, the mediation did not succeed. This Court records its appreciation at the efforts of Advocate P. K. Gaikwad and further earnestly hopes that the parties make yet another attempt at amicable settlement, particularly in the interest of the welfare of the minor child.

12] With the aforesaid observations, this petition stands disposed of.

(M. S. SONAK, J.)

Chandka

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Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

DNA test allowed to prove, disprove infidelity. Supreme court ! Don’t attack kid, attack adultery !!

* marriage on 25.1.2003
* marriage registered on 9.2.2003
* Husband claimed that "…That since 22.09.2007 the petitioner never lived with the respondent and did not share bed at all. ….." …"…That by her extravagant life style the respondent has incurred heavy debts. …" and that "….She is leading a fast life and has lived in extra marital relationship with the said Mr. Deven Shah, a well to do person who too is a carrier gentlemen and has given birth to a child as a result of her cohabitation with Shri Deven Shah. …."
* Wife refutes these allegations
* Husband seeks DNA test of self and kid TO PROVE WIFE’S ADULTRY
* The Family Court by an order dated 27.08.2012 dismissed the prayer made by the respondent-husband, for conducting the afore-mentioned DNA test.
* Finally Supreme court allows the same
* Yes, the husband has to fight long and hard for this victory !!

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF – Save Indian Family movement. SIF as a concept is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

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CASE FROM JUDIS / INDIAN KANOON WEB SITE
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“REPORTABLE”

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 9744 OF 2014 (Arising out of SLP(C) No.5694 of 2013)


Dipanwita Roy …. Appellant

versus

Ronobroto Roy …. Respondent

J U D G M E N T

Jagdish Singh Khehar, J.

1. The petitioner-wife Dipanwita Roy and the respondent-husband Ronobroto Roy, were married at Calcutta. Their marriage was registered on 9.2.2003. The present controversy emerges from a petition filed under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as the ‘Act’) by the respondent, inter alia, seeking dissolution of the marriage solemnised between the petitioner-wife and the respondent-husband, on 25.1.2003.

2. One of the grounds for seeking divorce was, based on the alleged adulterous life style of the petitioner-wife. For his above assertion, the respondent-husband made the following allegations in paragraphs 23 to 25 of his petition:

“23. That since 22.09.2007 the petitioner never lived with the respondent and did not share bed at all. On a very few occasion since then the respondent came to the petitioner’s place of residence to collect her things and lived there against the will of all to avoid public scandal the petitioner did not turn the respondent house on those occasion.

24. That by her extravagant life style the respondent has incurred heavy debts. Since she has not disclosed her present address to bank and has only given the address of the petitioner. The men and collection agents of different banks are frequently visiting the petitioner’s house and harassing the petitioner. They are looking for the respondent for recovery of their dues. Notice from Attorney Firms for recovery of due from the respondent and her credit card statements showing heavy debts are being sent to the petitioner’s address. The respondent purchased one car in 2007 with the petitioner’s uncle, Shri Subrata Roy Chowdhary as the guarantor. The respondent has failed to pay the installments regularly.

25. That the petiitoner states that the respondent has gone astray. She is leading a fast life and has lived in extra marital relationship with the said Mr. Deven Shah, a well to do person who too is a carrier gentlemen and has given birth to a child as a result of her cohabitation with Shri Deven Shah. It is reported that the respondent has given birth to a baby very recently. The respondent is presently living at the address as mentioned in the cause title of the plaint.” (emphasis is ours)

3. The above factual position was contested by the petitioner-wife in her reply wherein she, inter alia, submitted as under: “That the statements made in paragraph Nos. 5 and 6 of the plaint are admitted by the respondent to the extent that the daughter namely “Biyas” is residing in the custody of the respondent’s mother with the arrangement of the petitioner and as a result of which the petitioner used to come at his mother in law’s place and spending days therein and the respondent used to spend time with him and carrying on their matrimonial obligation which includes co-habitation.

That the statements made in paragraph No.7 in the plaint is absolutely false, concocted, untrue, frivolous, vexatious and made with the purpose of harassing the respondent and the petitioner is call upon to prove the allegation intoto. It is categorically denied by the respondent that she was a selfish person, very much concern about her own self and own affairs and without any concern for the petitioner as alleged. The respondent further denied that she was self willed, arrogant and short tempered and she used to fly into rage every now and then over small matter and used to quarrel with the petitioner and his mother as alleged. The respondent further denied and disputes that she used to go out every now and then according to her whims without informing either the petitioner and his mother as alleged. That the respondent further denies and disputes that she failed to disclose her whereabouts and used to stay out for long hours as alleged. The respondent further denies and disputes that she does not care little for the feelings of either the petitioner or his mother as alleged. The respondent further denies and disputes that she got extremely irritated and used to quarrel with the petitioner whenever the petitioner tried to speak to her as alleged.

That the statements made in paragraph 23 in the plaint are absolutely imaginative, concocted and false and the same are being made for the purpose of this case. The respondent denies and disputes in its present form the statement they lead an extravagant life style and thereby she incurred debts as alleged therein and the respondent provided her matrimonial house address to the bank as because the same is her permanent address after her marriage. The respondent denies and disputes the statement that men and collection agent of different banks were frequently visiting the petitioner’s house and harassing the petitioner and they are looking for the respondent for recovery of dues as alleged therein. The respondent is to state and submit that many a times at the behest of the petitioner she used to purchase many things for him and spent lot of money while attending dinner and lunch at clubs and restaurants with the petitioner. The respondent is to further state and submit on repeated insistence of the petitioner the respondent purchased a car on credit for accommodating herself smooth journey at her office work as well as for other places and in such event the petitioner promised that he would pay 50% of the EMI in respect of purchase of the car which is actually failed to contribute. It is needless to mention that the respondent had incurred some debts due to financial recession in consequences of which she lost her job and as a result of that she failed to make payment of her outstanding to the bank in spite of her willingness although her parents extended their helpful hands to accommodate her which could enable to come out from the debts but the petitioner is such situation kept himself silent.

That the statements made in paragraph no.24 in the plaint are false, untrue, frivolous and concocted and the same are being made with a malafide intention for degrading and harassing the respondent in the eye of society in order to get the divorce from her. The respondent strongly denies and disputes the statement that she is leading a fast life in extra marital relationship with one Mr. Deven Shah and she had given a birth of a child as a result of cohabitation with Shri Deven Shah as alleged. The respondent further denies and disputes the statement that she ever live in the address mentioned in the case title in the plaint as alleged and the petitioner is call upon to prove the statements into.

The respondent is to state and submit that she had no extra marital relationship with one Mr. Deven Shah. It is pertinent to mention that the respondent is having a continuous matrimonial relationship with the petitioner and the petitioner too performed the matrimonial relation to as well as the cohabitation with the respondent in great spirit and as a result of which a male chid was born. At this stage raising question regarding birth of the child would actually put adverse effect not only towards the family but also towards of the mind of the tender aged child and this unscrupulous attitude is actually goes against the concept of welfare of the child.” (emphasis is ours)

A perusal of the written statement filed on behalf of the petitioner-wife reveals that the petitioner-wife expressly asserted the factum of cohabitation during the subsistence of their marriage, and also denied the accusations levelled by the respondent-husband of her extra marital relationship, as absolutely false, concocted, untrue, frivolous and vexatious.

4. In order to substantiate his claim, in respect of the infidelity of the petitioner-wife, and to establish that the son born to her was not his, the respondent-husband moved an application on 24.7.2011 seeking a DNA test of himself (the respondent-husband) and the male child born to the petitioner-wife. The purpose seems to be, that if the DNA examination reflected, that the male child born to the petitioner-wife, was not the child of the respondent-husband, the allegations made by the respondent-husband in paragraphs 23 to 25 of the petition, would stand substantiated.

The petitioner-wife filed written objections thereto, categorically asserting, that the factual position depicted in the application filed by the respondent-husband was false, frivolous, vexatious and motivated. It was asserted that the allegations were designed in a sinister manner, to cast a slur on the reputation of the petitioner-wife. The petitioner-wife strongly denied and disputed the statement made at the behest of the respondent-husband to the effect, that she was leading a fast life in extra marital relationship with Mr. Deven Shah, and had given birth to a child as a result of her cohabitation with the said Mr. Deven Shah. She also asserted, that she had a continuous matrimonial relationship with the respondent-husband, and that, the respondent-husband had factually performed all the matrimonial obligations with her, and had factually cohabited with her. The petitioner-wife accordingly sought the dismissal of the application filed by the respondent-husband, for a DNA test of himself and the male child born to the petitioner-wife. The respondent-husband filed a reply affidavit reiterating the factual position contained in the application, and thereby also repudiating the assertions made by the petitioner-wife in her written objections.

5. The Family Court by an order dated 27.08.2012 dismissed the prayer made by the respondent-husband, for conducting the afore-mentioned DNA test.

6. Dissatisfied with the order passed by the Family Court on 27.8.2012, the respondent-husband approached the High Court at Calcutta (hereinafter referred to as the ‘High Court’) in its civil revisional jurisdiction by filing CO No.3590 of 2012 under Article 227 of the Constitution of India.

The High Court allowed the petition filed by the respondent-husband vide an order dated 6.12.2012. The operative part of the impugned order dated 6.12.2012 is being extracted hereunder:

“CO No.3590 of 2012 is disposed of by setting aside the order impugned and by directing the DNA test of the son of the wife to be conducted at the Central Forensic Science Laboratory on December 20, 2012. The wife will accompany her son to the laboratory at 11 am when the petitioner herein will also be present and the DNA samples of the child and the husband will be obtained by the laboratory in presence of both the husband and wife. The expenses for the procedure will be borne by the husband and the result will be forwarded by the laboratory as expeditiously as possible to be husband, the wife and the trial Court. The expenses for such purpose will be obtained in advance by the laboratory from the husband.

In addition, prior to December 20, 2012 the husband will deposit a sum of Rs.1 lakh with the trial court which will stand forfeited and made over to the wife in the event the paternity test on the basis of the DNA results shows the husband to be the father of the child. In the event the result reveals that the petitioner is not the father of the child, the money will be refunded by the trial Court to the petitioner herein.

The wife has sought to file an affidavit, but such request has been declined. The wife seeks a stay of operation of this order, which is refused. CO No.3590 of 2012 is disposed of without any order as to costs.

A copy of this order will immediately be forwarded to the laboratory by the husband such that the laboratory is ready to obtain the DNA sample on the specified date.”

(emphasis is ours)

Aggrieved with the order passed by the High Court on 6.12.2012, the petitioner-wife has approached this Court by filing the instant special leave petition. Notice was issued by this Court on 15.2.2013. The respondent-husband has entered appearance. Pleadings are complete.

7. Leave granted.

8. Learned counsel for the appellant-wife, in the first instance, invited our attention to Section 112 of the Indian Evidence Act. The same is being extracted hereunder:

“112. 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 any time when he could have been begotten.”

Based on the aforesaid provision, learned counsel for the appellant-wife drew our attention to decision rendered by the Privy Council in Karapaya Servai v. Mayandi, AIR 1934 PC 49, wherein it was held, that the word ‘access’ used in Section 112 of the Evidence Act, connoted only the existence of an opportunity for marital intercourse, and in case such an opportunity was shown to have existed during the subsistence of a valid marriage, the provision by a fiction of law, accepted the same as conclusive proof of the fact that the child born during the subsistence of the valid marriage, was a legitimate child.

It was the submission of the learned counsel for the appellant-wife, that the determination of the Privy Council in Karapaya Servai’s case(supra) was approved by this Court in Chilukuri Venkateshwarly vs. Chilukuri Venkatanarayana, 1954 SCR 424. Learned counsel for the appellant-wife also invited our attention to a decision rendered by this Court in Goutam Kundu vs. State of West Bengal and another, (1993) 3 SCC 418, wherein this Court, inter alia, held as under:

“(1) That Courts in India cannot order blood test as a matter of course.

(2) Wherever applications are made for such prayers in order to have roving inquiry, the prayer for blood test cannot be entertained.

(3) There must be a strong prima facie case in that the husband must establish non-access in order to dispel the presumption arising under Section 112 of the Evidence Act.

(4) The Court must carefully examine as to what would be the consequence of ordering the blood test; whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman.

(5) No one can be compelled to give samle of blood for analysis.”

Reliance was also placed on the decision rendered by this Court in Kamti Devi and another v. Poshi Ram, AIR 2001 SC 2226, wherefrom, the following observations made by this Court, were sought to be highlighted:

“10. But Section 112 itself provides an outlet to the party who wants to escape from the rigour of that conclusiveness. The said outlet is, if it can be shown that the parties had no access to each other at the time when the child could have been begotten the presumption could be rebutted. In other words, the party who wants to dislodge the conclusiveness has the burden to show a negative, not merely that he did not have the opportunity to approach his wife but that she too did not have the opportunity of approaching him during the relevant time. Normally, the rule of evidence in other instances is that the burden is on the party who asserts the positive, but in this instance the burden is cast on the party who pleads the negative. The raison d’etre is the legislative concern against illegitimatizing a child. It is a sublime public policy that children should not suffer social disability on account of the laches or lapses of parents.

11. We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancements with Dioxy Nucleric Acid (DNA) as well as Ribonucleic Acid (RNA) tests were not even in contemplation of the legislature. The result of a genuine DNA test is said to be scientifically accurate. But even that is not enough to escape from the conclusiveness of Section 112 of the Act, e.g., if a husband and wife were living together during the time of conception but the DNA test revealed that the child was not born to the husband, the conclusiveness in law would remain unrebuttable. This may look hard from thepoint of view of the husband who would be compelled to bear the fatherhood of a child of which he may be innocent. But even in such a case the law leans in favour of the innocent child from being bastardized if his mother and her spouse were living together during the time of conception. Hence the question regarding the degree of proof of non-access for rebutting the conclusiveness must be answered in the light of what is meant by access or non-access as delineated above.

12…..Its corollary is that the burden of the plaintiff-husband should be higher than the standard of preponderance of probabilities. The standard of proof in such cases must at least be of a degree in between the two as to ensure that there was no possibility of the child being conceived through the plaintiff-husband. “

(emphasis is ours)

Lastly, learned counsel for the appellant-wife, placed reliance on the decision rendered by this Court in Sham Lal @ Kuldeep vs. Sanjeev Kumar and others, (2009) 12 SCC 454, wherein it was inter alia, held as under: “Once the validity of marriage is proved then there is strong presumption about the legitimacy of children born from that wedlock. The presumption can only be rebutted by a strong, clear, satisfying and conclusive evidence. The presumption cannot be displaced by mere balance of probabilities or any circumstance creating doubt. Even the evidence of adultery by wife which though amounts to very strong evidence, it, by itself, is not quite sufficient to repel this presumption and will not justify finding of illegitimacy if husband has had access. In the instant case, admittedly the plaintiff and Defendant 4 were born to D during the continuance of her valid marriage with B. Their marriage was in fact never dissolved. There is no evidence on record that B at any point of time did not have access to D.”

(emphasis is ours)

It was, therefore, the vehement contention of the learned counsel for the appellant-wife, that the impugned order passed by the High Court directing, holding of a DNA test, of the respondent-husband and the male child born to the appellant-wife, may be set aside.

9. All the judgments relied upon by the learned counsel for the appellant were on the pointed subject of the legitimacy of the child born during the subsistence of a valid marriage. The question that arises for consideration in the present appeal, pertains to the alleged infidelity of the appellant-wife. It is not the husband’s desire to prove the legitimacy or illegitimacy of the child born to the appellant. The purpose of the respondent is, to establish the ingredients of Section 13(1)(ii) of the Hindu Marriage Act, 1955, namely, that after the solemnisation of the marriage of the appellant with the respondent, the appellant had voluntarily engaged in sexual intercourse, with a person other than the respondent. There can be no doubt, that the prayer made by the respondent for conducting a DNA test of the appellant’s son as also of himself, was aimed at the alleged adulterous behaviour of the appellant. In the determination of the issue in hand, undoubtedly, the issue of legitimacy will also be incidentally involved. Therefore, insofar as the present controversy is concerned, Section 112 of the Indian Evidence Act would not strictly come into play. A similar issue came to be adjudicated upon by this Court in Bhabani Prasad Jena vs. Convenor Secretary, Orissa State Commission for Women and another, (2010) 8 SCC 633, wherein this Court held as under:

“21. In a matter where paternity of a child is in issue before the court, the use of DNA test is an extremely delicate and sensitive aspect. One view is that when modern science gives the means of ascertaining the paternity of a child, there should not be any hesitation to use those means whenever the occasion requires. The other view is that the court must be reluctant in the use of such scientific advances and tools which result in invasion of right to privacy of an individual and may not only be prejudicial to the rights of the parties but may have devastating effect on the child. Sometimes the result of such scientific test may bastardise an innocent child even though his mother and her spouse were living together during the time of conception.

22. In our view, 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 interests of the parties and on due consideration whether for a just decision in the matter, DNA test is eminently needed. DNA test in 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 under Section 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.

23. There is no conflict in the two decisions of this ourt, namely, Goutam Kundu vs. State of West Bengal (1993) 3 SCC 418 and Sharda vs. Dharmpal (2003) 4 SCC 493. In Goutam Kundu, it has been laid down that courts in India cannot order blood test as a matter of course and such prayers cannot be granted to have roving inquiry; there must be strong prima facie case and the court must carefully examine as to what would be the consequence of ordering the blood test. In Sharda, while concluding that a matrimonial court has power to order a person to undergo a medical test, it was reiterated that the court should exercise such a power if the applicant has a strong prime facie case and there is sufficient material before the court. Obviously, therefore, any order for DNA test can be given by the court only if a strong prima facie case is made out for such a course.

24. Insofar as the present case is concerned, we have already held that the State Commission has no authority, competence or power to order DNA test. Looking to the nature of proceedings with which the High Court was concerned, it has to be held that the High Court exceeded its jurisdiction in passing the impugned order. Strangely, the High Court overlooked a very material aspect that the matrimonial dispute between the parties is already pending in the court of competent jurisdiction and all aspects concerning matrimonial dispute raised by the parties in that case shall be adjudicated and determined by that court. Should an issue arise before the matrimonial court concerning the paternity of the child, obviously that court will be competent to pass an appropriate order at the relevant time in accordance with law. In any view of the matter, it is not possible to sustain the order passed by the High Court. “ (emphasis is ours)

It is therefore apparent, that despite the consequences of a DNA test, this Court has concluded, that it was permissible for a Court to permit the holding of a DNA test, if it was eminently needed, after balancing the interests of the parties. Recently, the issue was again considered by this Court in Nandlal Wasudeo Badwaik vs. Lata Nandlal Badwaik and another, (2014) 2 SCC 576, wherein this Court held as under:

“15. Here, in the present case, the wife had pleaded that the husband had access to her and, in fact, the child was born in the said wedlock, but the husband had specifically pleaded that after his wife left the matrimonial home, she did not return and thereafter, he had no access to her. The wife has admitted that she had left the matrimonial home but again joined her husband. Unfortunately, none of the courts below have given any finding with regard to this plea of the husband that he had not any access to his wife at the time when the child could have been begotten.

16. As stated earlier, the DNA test is an accurate test and on that basis it is clear that the appellant is not the biological father of the girl child. However, at the same time, the condition precedent for invocation of Section 112 of the Evidence Act has been established and no finding with regard to the plea of the husband that he had no access to his wife at the time when the child could have been begotten has been recorded. Admittedly, the child has been born during the continuance of a valid marriage. Therefore, the provisions of Section 112 of the Evidence Act conclusively prove that Respondent 2 is the daughter of the appellant. At the same time, the DNA test reports, based on scientific analysis, in no uncertain terms suggest that the appellant is not the biological father. In such circumstances, which would give way to the other is a complex question posed before us.

17. We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancement and DNA test were not even in contemplation of the legislature. The result of DNA test is said to be scientifically accurate. Although Section 112 raises a presumption of conclusive proof on satisfaction of the conditions enumerated therein but the same is rebuttable. The presumption may afford legitimate means of arriving at an affirmative legal conclusion. While the truth or fact is known, in our opinion, there is no need or room for any presumption. Where there is evidence to the contrary, the presumption is rebuttable and must yield to proof. The interest of justice is best served by ascertaining the truth and the court should be furnished with the best available science and may not be left to bank upon presumptions, unless science has no answer to the facts in issue. In our opinion, when there is a conflict between a conclusive proof envisaged under law and a proof based on scientific advancement accepted by the world community to be correct, the latter must prevail over the former.

18. We must understand the distinction between a legal fiction and the presumption of a fact. Legal fiction assumes existence of a fact which may not really exist. However, a presumption of a fact depends on satisfaction of certain circumstances. Those circumstances logically would lead to the fact sought to be presumed. Section 112 of the Evidence Act does not create a legal fiction but provides for presumption.

19. The husband’s plea that he had no access to the wife when the child was begotten stands proved by the DNA test report and in the face of it, we cannot compel the appellant to bear the fatherhood of a child, when the scientific reports prove to the contrary. We are conscious that an innocent child may not be bastardised as the marriage between her mother and father was subsisting at the time of her birth, but in view of the DNA test reports and what we have observed above, we cannot forestall the consequence. It is denying the truth. “Truth must triumph” is the hallmark of justice.”

(emphasis is ours)

This Court has therefore clearly opined, that proof based on a DNA test would be sufficient to dislodge, a presumption under Section 112 of the Indian Evidence Act.

10. It is borne from the decisions rendered by this Court in Bhabani Prasad Jena (supra), and Nandlal Wasudeo Badwaik (supra), that depending on the facts and circumstances of the case, it would be permissible for a Court to direct the holding of a DNA examination, to determine the veracity of the allegation(s), which constitute one of the grounds, on which the concerned party would either succeed or lose. There can be no dispute, that if the direction to hold such a test can be avoided, it should be so avoided. The reason, as already recorded in various judgments by this Court, is that the legitimacy of a child should not be put to peril.

11. The question that has to be answered in this case, is in respect of the alleged infidelity of the appellant-wife. The respondent-husband has made clear and categorical assertions in the petition filed by him under Section 13 of the Hindu Marriage Act, alleging infidelity. He has gone to the extent of naming the person, who was the father of the male child born to the appellant-wife. It is in the process of substantiating his allegation of infidelity, that the respondent-husband had made an application before the Family Court for conducting a DNA test, which would establish whether or not, he had fathered the male child born to the appellant-wife. The respondent feels that it is only possible for him to substantiate the allegations levelled by him (of the appellant-wife’s infidelity) through a DNA test. We agree with him. In our view, but for the DNA test, it would be impossible for the respondent-husband to establish and confirm the assertions made in the pleadings. We are therefore satisfied, that the direction issued by the High Court, as has been extracted hereinabove, was fully justified. DNA testing is the most legitimate and scientifically perfect means, which the husband could use, to establish his assertion of infidelity. This should simultaneously be taken as the most authentic, rightful and correct means also with the wife, for her to rebut the assertions made by the respondent-husband, and to establish that she had not been unfaithful, adulterous or disloyal. If the appellant-wife is right, she shall be proved to be so.

12. We would, however, while upholding the order passed by the High Court, consider it just and appropriate to record a caveat, giving the appellant-wife liberty to comply with or disregard the order passed by the High Court, requiring the holding of the DNA test. In case, she accepts the direction issued by the High Court, the DNA test will determine conclusively the veracity of accusation levelled by the respondent-husband, against her. In case, she declines to comply with the direction issued by the High Court, the allegation would be determined by the concerned Court, by drawing a presumption of the nature contemplated in Section 114 of the Indian Evidence Act, especially, in terms of illustration (h) thereof. Section 114 as also illustration (h), referred to above, are being extracted hereunder:

“114. Court may presume existence of certain facts – The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.

Illustration (h) – That if a man refuses to answer a question which he is not compelled to answer by law, the answer, if given, would be unfavourable to him.”

This course has been adopted to preserve the right of individual privacy to the extent possible. Of course, without sacrificing the cause of justice. By adopting the above course, the issue of infidelity alone would be determined, without expressly disturbing the presumption contemplated under Section 112 of the Indian Evidence Act. Even though, as already stated above, undoubtedly the issue of legitimacy would also be incidentally involved.

13. The instant appeal is disposed of in the above terms.

****************************J. (Jagdish Singh Khehar)

****************************J. (R.K. Agrawal)

New Delhi;

October 15, 2014.

*****************

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Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist