IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
The Hon’ble Justice Debi Prosad Dey
CRR No. 3464 of 2016
Minor Seema Mahato…………………………….Petitioner
Alok Mahato & Anr.
For the Appellant/ : Mr. Dhruba Mukherjee
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 herein above 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 herein above, 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.)