IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JAIPUR BENCH, JAIPUR
D.B. SPECIAL APPEAL (WRIT) NO.2083/2014
State of Rajasthan & Ors.
HON’BLE THE ACTING CHIEF JUSTICE MR.SUNIL AMBWANI
HON’BLE MR. JUSTICE PRAKASH GUPTA
1. We have heard learned counsel appearing for the appellant.
2. This Special Appeal arises out of the order dated 28.11.2014 passed by learned Single Judge, by which he has disposed of the S.B.Criminal Writ Petition No.222/2014 (FIR No.28/2014 under Sections 494, 498A, 468, 418, 120B of the Indian Penal Code) and stay application, rejecting the prayer for issuing directions for a DNA Test of accused-respondents No.5 & 6.
3. The criminal writ petition filed before learned Single Judge arose out of the proceedings initiated by the appellant-wife against her husband Shri Sandeep Berad under Sections 498A and 494 of the Indian Penal Code, for having entered into the marriage with Abhilasha Abusaria, and living allegedly in adultery, with her. She alleged the offences of cruelty and bigamy against her husband. During the pendency of the proceedings in the trial, an application was filed by the appellant for a DNA test of her husband Sandeep Berad, and the child alleged to have been born from the illicit relations. In the hospital records, Abhilasha did not give name of the father of her child as Sandeep Berad.
4. The application for DNA Test was rejected. It was submitted by Public Prosecutor before learned Single Judge that the accused were asked for DNA Test, but they refused to undergo the test. It was stated that if they would be forced for DNA Test, allegation would be made against the police officials, and in view of their resistance, directions for DNA Test were not issued, on which the prosecution was unable to get the DNA Test of accused-respondents No.5 & 6 conducted. Learned Single Judge rejected the prayer of learned counsel appearing for the appellant that without DNA Test, truth of the bigamy will not come out, and which will also help the appellant in proving her case under Section 498A.
5. Learned Single Judge dismissed the application for interim relief for DNA Test on the ground that a direction to hold DNA Test of accused-respondents No.5 & 6 infringing their right of privacy, cannot be given, in the absence of their consent, with liberty that in case they give their consent, DNA Test may be conducted.
6. It is submitted by learned counsel appearing for the appellant that bigamy and adultery are criminal offences, and that, during investigation of the case, the medical examination is permissible under Sections 53, 53A & 54 of the Code of Criminal Procedure by prosecution, and in such case, it will not be considered to be in violation of Article 20(3) of the Constitution of India.
7. We do not find substance in the contention of learned counsel appearing for the appellant.
8. The offence of bigamy i.e.marrying again during lifetime of husband or wife, as a criminal offence under Section 494 IPC, may be proved by producing sufficient proof of marriage of a person, who has husband or wife living, with an exception, that the section does not extend to any person, whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction, nor to any person, who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person, as being alive within that time provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted, of the real state of facts, so far as the same are within his or her knowledge.
9. In order to prove the offence of bigamy, the person alleging that his spouse has, during the subsistence of the marriage, married the other person, must prove the factum of marriage. The birth of a child in the relationship may be one of the circumstances, but that would not be conclusive proof of marriage, which may constitute an offence. The circumstances, in which a man and woman are living, or have lived together for a long time, would amount to a presumption of marriage, is also not attracted in proof of allegations of bigamy under Section 454 IPC. It can again be one of the circumstances, which may be considered by the Court in the trial of the offence.
10. We are also not impressed by the submission that in order to prove the allegations under Section 498A, relying on the expression “cruelty” under Section 498A, as given in Explanation (b), in which harassment of the woman with a view to coercing her or any person related to her to meet any unlawful demand, the factum of second marriage, while the marriage with her is subsisting, the proof of the paternity of the child born from such alleged illegal marriage, would be a ground to subject the accused, to DNA Test.
11. In Koppisetti Subbharao @ Subramaniam Vs. State of A.P., Hon’ble Supreme Court in a matter, in which an offence of bigamy was alleged, held in para 8 as follows:-‘
“8. The marriages contracted between Hindus are now statutorily made monogamous. A sanctity has been attributed to the first marriage as being that which was contracted from a sense of duty and not merely for personal gratification. When the fact of celebration of marriage is established it will be presumed in the absence of evidence to the contrary that all the rites and ceremonies to constitute a valid marriage have been gone through. As was said as long as 1869 “when once you get to this, namely, that there was a marriage in fact, there would be a presumption in favour of there being a marriage in law”. (See Inderun Valungypooly v. Ramaswamy : 1869 (13) MIA 141.) So also where a man and woman have been proved to have lived together as husband and wife, the law will presume, until contrary be clearly proved, that they were living together in consequence of a valid marriage and not in a state of concubinage. (See Sastry Velaider v. Sembicutty (1881 (6) AC 364) following De Thoren v.Attorney General 1876 (1) AC 686 and Piers v. Piers . Where a marriage is accepted as valid by relations, friends and others for a long time it cannot be declared as invalid. In Lokhande’s case (supra), it was observed by this Court “The bare fact that man and woman live as husband and wife it does not at any rate normally give them the status of husband and wife even though they may hold themselves before the society as husband and wife and the society treats them as husband and wife”. These observations were cited with approval in Surjit Kaur v. Garja Singh and Ors.: AIR 1994 SC 135 . At first blush, it would seem that these observations run counter to the long catena of decisions noted above. But on closer examination of the facts of those cases it is clear that this Court did not differ from the views expressed in the earlier cases. In Lokhande’s case (supra), this Court was dealing with a case of prosecution for bigamy. The prosecution had contended that second marriage was gandharva form of marriage and no ceremonies were necessary and, therefore, did not allege or prove that any customary ceremonies were performed. In that background, it was held that even in the case of gandharva marriages, ceremonies were required to be performed. To constitute bigamy under Section 494 IPC, the second marriage had to be a valid marriage duly solemnized and as it was not so solemnized it was not a marriage at all in the eye of law and was therefore invalid. The essential ingredient constituting the offence of Bigamy is the “marrying” again during the lifetime of husband or wife in contrast to the ingredients of Section 498A which, among other things, envisage subjecting the woman concerned to cruelty. The thrust is mainly “marrying” in Section 494 IPC as against subjecting of the woman to cruelty in Section 498A. Likewise, the thrust of the offence under Section 304B is also the “Dowry Death”. Consequently, the evil sought to be curbed are distinct and separate from the persons committing the offending acts and there could be no impediment in law to liberally construe the words or expressions relating to the persons committing the offence so as to rope in not only those validly married but also any one who has undergone some or other form of marriage and thereby assumed for himself the position of husband to live, cohabitate and exercise authority as such husband over another woman. In Surjit Singh’s case (supra) the stand was that the marriage was in Karewa form. This Court held that under the custom of Karewa marriage, the widow could marry the brother or a relation of the husband. But in that case the man was a stranger. Further even under that form of marriage certain ceremonies were required to be performed which were not proved. Dealing with the contention relating to presumption, reference was made to Lokhande’s case (supra). As the parties had set up a particular form of marriage which turned out to be invalid due to absence of proof of having undergone the necessary ceremonies related to such form of marriage, the presumption of long cohabitation could not be invoked.”
12. In Dipanwita Roy Vs. Ronobroto Roy (Civil Appeal No.9744/2014) decided by the Hon’ble Supreme Court on 15.10.2014, the question as to the right of a woman to refuse to subject her to DNA Test, was revisited, and it was held, relying upon Bhabani Prasad Jena Vs. Convenor Secretary, Orissa State Commission for Women & Anr., (2010) 8 SCC 633, in which it was held that there is no conflict in the two decisions of this Court in Goutam Kundu Vs. State of West Bengal (1993) 3 SCC 418 and Sharda Vs. Dharmpal, (2003) 4 SCC 493, that the order for DNA Test can be given by the Court, only if a strong prima facie case is made out for such a course. The matrimonial court has power to order the person to undergo a medical test. The power however, should be exercised only if ther is a strong prima facie case. Explaining the principle of law further, it was held by the Supreme Court, relying upon Nandlal Wasudeo Badwaik Vs. Lata Nandlal Badwaik & Anr., (2014) 2 SCC 576, that though DNA is an accurate test, and on that basis, it may be possible to determine the paternity of a child, however, at the same time, the condition precedent for invocation of Section 112 of the Evidence Act has to be established, and that, 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. The Supreme Court observed that though the DNA Test should be taken to be most authentic, rightful and correct means, to rebut the assertions of the wife, or the assertions made by the respondent-husband, and to establish that she had not been unfaithful, adulterous or disloyal, if the woman refuses to undergo the test, she cannot be compelled to undergo the test, and that in such case, a presumption under Section 114 of the Indian Evidence Act, as also illustration (h), may be drawn against him/her. The same precaution on protection of rights must be observed in case of accused of offences of bigamy or adultery.
13. We may observe here that any order passed by the Court for DNA Test, may affect an innocent child, who may have to suffer consequences of the test, inasmuch as, the result may bastardize the child, which should be kept in mind, while directing the DNA Test.
14. The DNA test, even if, it is an accurate test for the parentage of the child, should be ordered on strong prima facie case, but with great caution, keeping in view the rights of the third parties, including the child. In the present case, we find that no ground was made out, either for proving the allegation of the appellant-wife that her husband is having illicit relationship with another woman, or that, he has entered into marriage with her, from whom he has begotten a child, and on the allegations under Section 498A IPC, to issue directions for DNA test, in the absence of the consent of the accused.
15. We do not find that learned Single Judge has committed any error of law in rejecting the criminal writ petition and the stay application.
16. The Special Appeal is dismissed.
(SUNIL AMBWANI),ACTING C.J.
Skant/-, Proof Reader
All the corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Shashi Kant Gaur,