Daily Archives: May 4, 2016

Plea for DNA test to decide child’s paternity dismissed

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CHENNAI, May 3, 2016
Updated: May 3, 2016 05:48 IST

Plea for DNA test to decide child’s paternity dismissed

Noting that a child born out of wedlock of the parties is presumed to be legitimate and that the burden lies on the shoulders of the husband to prove it otherwise, the Madras High Court dismissed an appeal moved by a husband to subject his wife to a DNA test to decide the paternity of a child born to them.

Justice M. Venugopal refused to quash an order of the Judicial Magistrate, Cheyyar, rejecting the plea moved by Prakash who claimed that the child bornto his wife was not his.

He also claimed that he never had any sexual relationship with her, before or after marriage.

Threatened

According to the petitioner, he was threatened by his spouse’s family and was compelled to marry her on May 16, 2008 in a temple at Cheyyar.

The marriage was also registered at the Cheyyar Sub-Registrar’s office. After six months of marriage, his spouse gave birth to a girl child on November 22.

‘Never consummated’

Alleging that the marriage was never consummated, the petitioner approached the Judicial Magistrate in Cheyyar to subject his wife to DNA test to decide the paternity of the child.

The magistrate rejected his plea observing that both parties had admitted to marriage, and since the child was born to them, one had to conclude that the child was born only during the subsistence of the marriage relationship as per the provisions of the Indian Evidence Act.

Assailing the order, the petitioner moved the present appeal in the High Court.

When the plea came up for hearing, the judge said unless the husband is able to establish his version satisfactorily and conclusively, the presumption under the Indian Evidence Act shall prevail and dismissed his plea.

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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

My brother put his finger into my vagina! Woman filing DV for residence rights, implicates whole family ! Delhi HC bail

A woman who has filed a DV case seeking residence order in her family home, and who has filed various earlier complaints, says that her brother entered her room and tried to such nasty acts…. Here are some excerpts and the full case below….

“…It is informed that on 04.07.2014, the complainant (the woman who complains) had entered the house after a gap of three and a half years….”
“…placed on record the PCR calls made by the petitioner from her mobile No.901331822 at 10.25.30 hours, 10.47.50 hours and 11.17.35 hours soon after the occurrence. She did not level any allegations of attempt to rape by her brother in these calls. The calls merely pertain to the incident of ‘quarrel’. Subsequently, in her complaint, the petitioner leveled all these allegations. ….”
“….She declined internal medical examination. …..”
“…the prosecutrix disclosed that on 16.05.2015 at about 09.45 a.m. when she was changing clothes the petitioner (her own brother) entered forcibly inside the room and started doing illicit activities with her. He put his hands inside her clothes; put his finger inside her vagina. …”
“…She further alleged that her sister is a CEO of a law firm called Juris Global and has been involved in supplying women to influence and highly profile people. Her father, sister and brother have illicit relationship. They all force her to be a part of it….”

“… Considering the peculiar facts and circumstances of the case, the petitioner (the bail petitioneri.e. brother of complainant) is granted anticipatory bail …”


IN THE HIGH COURT OF DELHI AT NEW DELHI

DECIDED ON : 29th APRIL, 2016

BAIL APPLN. 2110/2015

ANUJ AHUJA ….. Petitioner
Through : Mr.Y.P.Luckria, Advocate.

versus

GOVT. OF NCT OF DELHI ….. Respondent
Through : Ms.Nandia Rao, ASC.

Complainant in person.

CORAM: HON’BLE MR. JUSTICE S.P.GARG

S.P.GARG, J. (Oral)

  1. The petitioner – Anuj Ahuja seeks anticipatory bail under Section 438 Cr.P.C. in case FIR No.666/2015 registered under Section 376 IPC read with Sections 511; 323/506/34 IPC at PS Rajouri Garden. Status report is on record. Bail application is contested by the State and the complainant.
  2. I have heard the learned counsel for the parties and have examined the record. At the outset, it may be mentioned that both the petitioner and the complainant are brother and sister. Various litigations are pending between the two. The complainant has filed proceedings under Section 12 of Domestic Violence Act.
  3. By an order dated 23.12.2015, the petitioner was granted interim protection and was directed to join the investigation as and when required. Status report reveals that the petitioner has since joined the investigation. Status report dated 20.11.2015 further reveals that both the parties are habitual in lodging complaints. Many civil and criminal cases are pending between them. A case of sexual assault vide FIR No.213/2015 dated 09.02.2015 under Sections 323/341/354A/34 IPC has also been registered against the petitioner and his sister on the statement of the prosecutrix. Another FIR No.566/2015 dated 27.04.2015 under Sections 323/341/506/34 IPC has been registered on the statement of the prosecutrix against her brother and sister.
  4. In the instant FIR, the prosecutrix disclosed that on 16.05.2015 at about 09.45 a.m. when she was changing clothes the petitioner entered forcibly inside the room and started doing illicit activities with her. He put his hands inside her clothes; put his finger inside her vagina. When she objected, her father K.L.Ahuja came and started beating her. When she tried to escape, she was giving beatings by her father, brother and sister. She alleged that the petitioner had attempted to commit rape upon her whereas her sister and father helped him.
  5. It is relevant to note that on the complaint of K.L.Ahuja, victim’s father, a cross-case vide FIR No.667/2015 under Sections 324/341/506/34 IPC was registered against the prosecutrix. All of them were medically examined and nature of injuries found on their body was opined ‘simple’ in nature. In her response to the petition, the complainant informed that her sister Roma Ahuja used to force her into immoral / illicit practices; her father K.L.Ahuja and brother Anuj Ahuja (the present petitioner) were involved in it. She had made complaints to various law enforcing agencies. Complaint under Domestic Violence Act was filed by her in 2010 and she has been granted protection vide order dated 28.06.2010. The Court directed the SHO to ensure ‘peace’ in the shared house-hold. The said order was never complied with by the police. On 26.04.2015, she was brutally beaten up and forced out of the shared house- hold by the petitioner and other accused persons. She was not permitted to enter the house despite presence of DCW personnel. She was made to stay at a shelter house in YWCA in Delhi for two days. On 28.04.2015, she appeared before Mahila Court and vide order dated 28.04.2015 was granted protection / residence (interim). She further alleged that her sister is a CEO of a law firm called Juris Global and has been involved in supplying women to influence and highly profile people. Her father, sister and brother have illicit relationship. They all force her to be a part of it. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
  6. On merits, she stated that the petitioner has already been declared Proclaimed Offender on 16.11.2015 by the Trial Court. He did not join the investigation. She was not permitted to enter the shared house. Intention of the petitioner and accused persons is to deprive her of her share / right in the property. Contempt proceedings have been initiated for violation of the orders.
  7. It is pertinent to note co-accused K.L.Ahuja and Roma Ahuja have already granted anticipatory bail by this Court vide order dated 11.01.2015 in Bail Appln. 1136/2015.
  8. Allegations against the present petitioner of course at first instance seem to be very grave and serious. However, considering the background of the case where the parties are at loggers-head and various civil and criminal proceedings are pending between the two, the allegations cannot be taken on its face value at this stage. The petitioner has placed on record the PCR calls made by the petitioner from her mobile No.901331822 at 10.25.30 hours, 10.47.50 hours and 11.17.35 hours soon after the occurrence. She did not level any allegations of attempt to rape by her brother in these calls. The calls merely pertain to the incident of ‘quarrel’. Subsequently, in her complaint, the petitioner leveled all these allegations. She declined internal medical examination. The injuries found on her body were found ‘simple’ in nature. She did not explain the injuries suffered by the petitioner and his father. The petitioner has further placed on record report dated 02.05.2015 (Annexure ‘C’) given at the Police Post MIG Flats, Rajouri Garden, lodged by Ahilya Ahuja – her mother when she was allegedly threatened in a quarrel with her. DD No. 32 (Annexure ‘D’) was lodged on 04.07.2014 informing that the complainant had threatened to implicate them in a false rape case or attempt to rape case. It is informed that on 04.07.2014, the complainant had entered the house after a gap of three and a half years.
  9. Record reveals that the petitioner was availing legal remedies to get anticipatory bail. However, vide order dated 16.06.2015 the application was dismissed. The petitioner filed the instant petition before this Court on 05.10.2015. He was declared Proclaimed Offender subsequent to that on 16.11.2015. During the pendency of this petition, he was granted interim protection by this Court on 23.12.2015. It cannot be said that the petitioner was deliberately absconding.
  10. Considering the peculiar facts and circumstances of the case, the petitioner is granted anticipatory bail and in the event of arrest, he be released on furnishing personal bond in the sum of `50,000/- with one surety in the like amount to the satisfaction of the SHO/Investigating officer. He shall, however, join the investigation as and when required; shall not contact the prosecutrix, and shall not criminally intimidate her in any manner whatsoever.
  11. The bail application stands disposed of.
  12. Observations in the order shall have no impact on merits of the case.

(S.P.GARG)
JUDGE
APRIL 29, 2016 / tr

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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. 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.


CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
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