Minor Seema Mahato vs Alok Mahato & Anr on 22 December, 2017

IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
Appellate Side
Present:

The Hon’ble Justice Debi Prosad Dey

CRR No. 3464 of 2016

Minor Seema Mahato…………………………….Petitioner

Versus
Alok Mahato Anr.

For the Appellant/ : Mr. Dhruba Mukherjee
Petitioner

For the Respondent/
Opposite party : Mr. Ayan Basu

Heard on : 18.12.2017

Judgment on : 22.12.2017

Debi Prosad Dey, J. :-

This application under Article 227 of the Constitution of India read

with Section 482 of the Code of Criminal Procedure has been filed

challenging the order dated November, 26, 2015 of Misc Case no. 166 of

2009 passed by learned Judicial Magistrate, first court Purulia whereby and

whreunder learned Magistrate has rejected the application of the petitioner

for conducting the DNA test of the opposite party no.1 to ascertain the

parentage of the petitioner.

Affidavit of service reveals that opposite party no.1 refused to

accept the copy of the application along with annexures thereof. Learned
Advocate for the State Mr. Ayan Basu is present. The factual matrix of the

case under reference is that the mother of the minor petitioner lodged a

complaint in writing with the Purulia(M) police station alleging that the

opposite party no. 1 had promised to marry her and on the promise of such

marriage allured her to cohabit with him on several occasions, as a

consequence of which she became pregnant. The opposite party no. 1

however being aware of the pregnancy of the mother of the petitioner,

refused to marry her and accordingly such written complaint was filed with

the Purulia(M) police station. After investigation, charge was framed against

opposite party no.1 under Section 376 and 417 of the Indian Penal Code.

After completion of trial learned trial Court convicted opposite party no. 1 in

sessions case no. 123 of 2008 corresponding to sessions trial no. 46 of 2008

for the offence punishable under Section 376/417 of the Indian Penal Code

and sentenced him to suffer rigorous imprisonment for 10 years and to pay

a fine of Rs.1,00000/- to the mother of the petitioner. However, the said

order of conviction and sentence was set aside by a Division Bench of this

Court in CRA no. 208 of 2012. The relevant portion of the observation of the

Division Bench in CRA no. 208 of 2012 may be reproduced below:-

“What transpires from the evidence on record is that there was

prolonged cohabitation between the prosecutrix and the accused appellant

which led to pregnancy of the prosecutrix and the prosecutrix gave birth to a

child.

From the evidence it may reasonably be inferred that the

accused appellant is the father of the child born to the prosecutrix. A DNA

test would have conclusively proved whether the accused appellant was the

child’s father or not.

A DNA test may have conclusively established that the accused

appellant was the father of the child. In other words, a DNA test would have

established whether there was cohabitation between the accused appellant

and the prosecutrix. However, the question of whether cohabitation was

consensual or whether the prosecutrix had been raped by the accused

appellant would not be resolved by a DNA test.”

Learned Advocate appearing on behalf of the petitioner

contended that an application for DNA test and DNA mapping for such

minor petitioner along with the opposite party no. 1 could have answered

the dispute of parentage of the minor petitioner. It is further submitted that

the prosecutrix namely the mother of the minor petitioner gave birth to the

present petitioner as a result of such continuous cohabitation with opposite

party no.1 and an application under Section 125 of the Code of Criminal

Procedure was filed on behalf of the minor Seema Mahato claiming

maintenance from opposite party no.1. It is apparent from the copy of the

written statement filed by opposite party no. 1 in the trial Court that the

opposite party no. 1 has emphatically denied about the parentage of the

present petitioner on the ground that the mother of petitioner is a lady of

questionable character and there was absolutely no cohabitation in between
the mother of the petitioner as well as the opposite party no.1, which

resulted the birth of the minor petitioner.

It is therefore apparent from such emphatic denial of opposite

party no.1 that it is necessary to ascertain the parentage of the minor

petitioner only by resorting to the scientific test and with the help of DNA

test and DNA mapping of the minor petitioner with the opposite party no.1

Learned Advocate appearing on behalf of the petitioner

contended that the observation of the Division Bench in CRA no. 208 of

2012 clearly reveals that DNA test is only necessary to ascertain the

parentage of the minor petitioner. It is further submitted that this petitioner

would be ostracized by the society unless the parentage of the petitioner is

being ascertained by resorting to such scientific test for the sake of the

future of this minor, necessary direction ought to be given by compelling the

opposite party no. 1 to undergo such DNA test in order to save the future of

the petitioner. Learned Advocate Mr. Ayan Basu appearing on behalf of the

State has also supported such contentions of learned Advocate for the

petitioner and has referred a decision reported in (2014) 4 SCC (Cri) 65

(Nandlal Wasudeo Badwaik Vs. Lata Nandlal Badwaik Anr. ).

The relevant portions of the said judgment may be reproduced

below for proper appreciation:-

“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.”

Learned Advocate for the petitioner has also relied on a decision

reported in (2012) 12 SCC 554 (Narayan Dutt Tiwari Vs. Rohit Shekhar

Anr.). While upholding the direction for undergoing DNA test the Apex Court

has observed as follows.

The relevant paragraph may be reproduced below:-

“We also find the drawing of adverse inference from refusal to

comply with the direction for medical examination to be not sufficient to

satiate the need found by the Court. A legal fiction under Section 114 of the

Evidence Act, as adverse inference is, is not a reality but which the said

provision requires the Court to accept as reality. The Court is not bound to

or obliged to draw such adverse inferences. (see Emperor V. Sibnath

Banerjee, Dhanvantrai Balwantrai Desai V. State of Maharashtra and Fakir

Mohd. V. Sita Ram).

A presumption is not in itself evidence but only makes a prima

facie case for parties in whose favour it exists (see Sodhi Transport Co. V.

State of U.P.). As far back as in Damisetti Ramchendrudu V. Damisetti

Janakiramanna it was held that presumption cannot displace adequate

evidence. The Supreme Court also in Mohanlal Shamji Soni v. Union of

India held that it is the rule of law in evidence that the best available

evidence should be brought before the Court to prove a fact or the points in

issue and the court ought to take an active role in the proceedings in finding

the truth and administering justice.

Recently in Maria Margarida Sequeira Fernandes V. Erasmo

Jack de Sequeira it was reiterated that the truth is the guiding star and the

quest in the judicial process and the voyage of trial. The trend world over of

full disclosure by the parties and deployment of powers to ensure that the

scope of factual controversy is minimized was noticed. We are therefore of

the opinion that adverse inference from non-compliance cannot be a

substitute to the enforceability of a direction for DNA testing. The valuable

right of the appellant under the said direction, to prove his paternity

through such DNA testing cannot be taken away by asking the appellant to

be satisfied with the comparatively weak “adverse inference”.

The impugned judgment refers extensively to the law in this

regard in other countries. We are however of the opinion that once the

Supreme Court in the judgments supra has held the civil court entitled to

issue such a direction, the law in other jurisdictions pales into

insignificance.”

The Hon’ble Apex Court has also upheld the direction for

conducting DNA test in a decision reported in Dipanwita Roy Vs. Ronobroto

Roy in Civil Appeal NO. 9744 of 2014. The relevant paragraph may be

reproduced below :-

“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.”

However, the submission of learned Advocate for the petitioner

to the effect that Section 53 of the Code of Criminal Procedure has given

ample jurisdiction upon learned Magistrate to order for DNA test cannot be

accepted. The spirit behind Section 53 is that the person who is accused in

a case can be compelled to draw samples for DNA test be taken from his

person.

It is therefore apparent that the hapless minor has been

knocking the door of justice only in order to ascertain as to if she is the

offspring of the opposite party no.1 as a result of such unbridled

cohabitation in between her mother and opposite party no. 1. The opposite

party no.1 was convicted for the offence under Section 376 of the Indian

Penal Code and subsequently he has been acquitted only on the ground that

such cohabitation was a result of consensual sex. The Division Bench of

our High Court has accepted that opposite party no.1 has committed a

moral wrong and there was consensual sex between the parties. The

opposite party no.1 has emphatically denied in his written statement

regarding his parentage of the minor petitioner. There may be some sort of

legal presumption against such denial of the opposite party no.1 but it

would be difficult, if not absurd, on the part of the minor petitioner to prove

that she is the offspring of opposite party no.1 and opposite party no.1
would be responsible to provide maintenance to the petitioner. The plea of

non-access by the opposite party no.1 would cause serious doubt in the

mind of the Court at the time of final disposal of such application under

Section 125 of the Code of Criminal Procedure. In that view of this case and

being fortified with the decisions referred to hereinabove I find it just and

convenient to direct the opposite party no.1 to undergo the DNA test and

DNA mapping with that of the petitioner so as to ascertain the parentage of

the present petitioner. The DNA test result being accurate and scientific,

would provide a definite and certain clue to the trial Court to decide the

application under Section 125 of the Code of Criminal Procedure. The

opposite party no.1 also did not care to appear before this Court and thereby

has given his tacit consent to the prayer of the petitioner. The order of

learned Magistrate dated November, 26, 2015 passed in Misc case no. 166 of

2009 is thus set aside. Learned Magistrate is directed to take appropriate

steps (if required coercive steps) to conclude the DNA test examination of the

petitioner and that of opposite party no.1 within a period of 6 months from

the date of receipt of the copy of this order. Cost of such DNA test shall be

borne by the natural guardian of the petitioner.

It goes without saying that an illegitimate child is also entitled

to get maintenance under Section 125 of the Code of Criminal Procedure.

By this time, it has been settled by the Apex Court that the

proceeding under Section 125 of the Code of Criminal Procedure is quasi-

civil in nature if not, civil in nature. The decisions referred to hereinabove,
have permitted the Civil Courts to compel the adversary in such

proceedings to undergo DNA test in the quest of truth.

It is evident from the material on record that the misc case is

pending since 2009. The provision under Section 125 of the Code of

Criminal Procedure was enacted with a view to provide speedy remedy to the

aggrieved persons. In that view of this case learned magistrate is directed to

dispose of the application within a period of one and half years from the date

of receipt of this copy of this order. Let a copy of this order be forwarded to

the learned trial Court forthwith for information and necessary compliance.

The criminal revisional application stands allowed.

Urgent photostat certified copy of this order, if applied for, be given to

the parties as expeditiously as possible

(Debi Prosad Dey, J.)

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