IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
Cr. MMO No. 198 of 2016.
Reserved on : 06.04.2017.
Date of decision: 18th April, 2017.
Sharda …..Petitioner.
Versus
Surat Singh ….. Respondent.
Coram
The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting?1No
For the Petitioner : Mr.Sudhir Thakur and Mr. Anirudh
Sharma, Advocates.
For the Respondent : Mr. H.S. Rana, Advocate.
Tarlok Singh Chauhan, Judge
This case was finally heard by this Court on 20.08.2016
whereby the petition filed by the petitioner came to be allowed. However,
vide an application filed by the respondent being Cr.M.P. No.999 of 2016,
this order was recalled and the matter thereafter heard afresh on merits.
2. This petition under Section 482 Cr.P.C. is directed against the
order dated 23.05.2016 passed by the learned Judicial Magistrate 1st
Class, Solan, District Solan, H.P. whereby the application filed by the
petitioner seeking direction to the respondent to undergo DNA profiling
test alongwith his children and to obtain expert opinion in this regard, came
to be dismissed.
3. The application filed by the petitioner under Section 12 of the
Protection of Women from Domestic Violence Act, 2005 (for short ‘DV
Whether the reporters of the local papers may be allowed to see the Judgment?Yes
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Act’) is pending adjudication before the learned trial Magistrate. In the
application, the petitioner had averred that she had been living for the last
.
more than 40 years with the respondent , who had kept her as a wife and
out of the said relationship, two children Surinder Parkash and one
Sushma were born and now the respondent had stopped maintaining the
petitioner and prayed that pending disposal of the application the
residence order (fourth storey – first floor known as Surat Bhawan), as
required under Section 19 of the Act be passed.
4. In reply to the application, the respondent denied having had
any relationship with the petitioner and further denied the children
mentioned above are his.
5. In order to prove her relationship with the respondent, the
petitioner filed an application under Section 45 read with Section 113 of the
Indian Evidence Act, for directing the respondent to undergo DNA profiling
test with the aforesaid children, which was opposed by the respondent.
6. The learned trial Court dismissed the application by initially
according the following reasons:
“The present petition is petition under Section 12 of protection of
women from Domestic Violence Act and the children are not party
to the present petition but applicant has averred that he had denied
even paternity of children and therefore, DNA test is required to be
conducted. However, the paternity of the children is not in question
in the present case. Moreover, it is an accepted fact that
maintenance has been provided to the children under Section 125
Cr.P.C. and under Section 125 Cr.P.C. even illegitimate child is
also covered. Copy of order dated 29.7.86 Ext. DX1 has been
placed on record wherein they were stated to be his illegitimate
children of respondent which order is not as such challenged by the
respondent in any court of law. The evidence has also come to the
effect that respondent was also married and had children from his
wife namely Durgi Devi and it has also been stated by her in the19/04/2017 23:58:51 :::HCHP
3court that children of Sharda were also born in her presence and
she was married to Basti Ram.”
.
Thereafter, by placing reliance upon the judgment of the Hon’ble Supreme
Court in D.Velusamy vs. D. Patchaiammal, 2010 (10) SCC 469, it was
further observed as under:
“In view of authority cited supra it can be safely stated that for the
purpose of relief under domestic violence Act, the relationshipshould be akin to marriage and detail with regard to the relationship
which can be stated to be akin to marriage has been provided and
so the points as stated above by Hon’ble Supreme Court of India isrequired to be proved and therefore, paternity of children is not
going to prove same. Hence, in view of discussion made above
present application is not maintainable and is dismissed
accordingly. Application stands disposed of accordingly. It beregistered and papers after due completion be tagged with main
case file for record. Be listed for arguments for 17.6.2016.”
I have heard learned counsel for the parties and also gone
through the records of the case.
7. It cannot be disputed that use of DNA test is an extremely
delicate and sensitive aspect when it gets down to human relationship.
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. However, there is other view 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 be
prejudicial to the rights of the parties and at the same time may have
devastating effect on the child. Sometimes, the result of such a scientific
test may bastardize an innocent child even though his mother and her
spouse were living together during the time of conception. Any order for
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DNA test can be given by the Court only if a strong prima facie case is
made out for such a course.
.
8. In Bhabani Prasad Jena versus Convenor Secretary, Orissa
State Commission for Women and another (2010) 8 SCC 633, the
Hon’ble Supreme Court has held that whenever there is a conflict between
the right of privacy of a person not to submit himself to medical examination
and duty of the Court to reach the truth, the Court must exercise its
discretion only after balancing the interest of the parties and on due
consideration whether for a just decision in the matter, DNA test is eminently
needed.
9. In Dipanwita Roy versus Ronobroto Roy (2015) 1 SCC 365,
the Hon’ble Supreme Court was dealing with a case pertaining to the alleged
infidelity of the appellant therein and the husband wanted to prove and
establish the ingredients of Section 13(1)(i) of the Hindu Marriage Act, 1955,
namely, that after the solemnization of the marriage of the appellant with the
respondent, the appellant therein had voluntarily engaged in sexual
intercourse with a person other than the respondent. The Hon’ble Supreme
Court held that the prayer made by the respondent for conducting DNA test
of the appellant’s son was aimed at the alleged adulterous behaviour of the
appellant and, therefore, the issue of legitimacy was also incidentally
involved. It was further held that depending on the facts and circumstances
of each case, it will direct the holding of a DNA examination, but then it was
specifically held that if the directions to hold such test can be avoided, it
should be so avoided for the reasons that the legitimacy of a child should not
be put to peril. It is apt to reproduce para-16 of the judgment which reads
thus:-
“16. It is borne from the decisions rendered by this Court in
Bhabani Prasad Jena v. Orissa State Commission for Women19/04/2017 23:58:51 :::HCHP
5(2010) 8 SCC 633 and Nandlal Wasudeo Badwaik v. Lata Nandlal
Badwaik (2014) 2 SCC 576 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 whichthe party concerned 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 childshould not be put to peril.”
10. Shri H.S.Rana, lear ned counsel for the respondent, has
strenuously argued that the application filed by the petitioner is totally
misconceived as the provisions of the ‘DV Act’ even in the case of “live-in-
relationship” would only apply to cases where the “live-in-relationship” is a
“relationship in the nature of marriage” falling within the definition of the
domestic relationship under Section 2(f) of the Act and has placed strong
reliance upon the judgment of the Hon’ble Supreme Court in Indra Sarma
versus V.K.V.Sarma (2013) 15 SCC 755. He would contend that the
petitioner very well knew that the respondent is already married and still
entered into relationship and even bor e two children from his loins and,
therefore, her relationship with the respondent was not in the nature of
marriage.
11. I have minutely and carefully gone through the judgment in
Indra Sarma’s case (supra) where the Hon’ble Supreme Court has
distinguished the “live-in-relationship” with that “relationship in the nature
of marriage”. It was held that all “live-in-relationships” are not relationships
in the nature of marriage. It was further held that relationship to qualify as
“relationship in the nature of marriage” should have some inherent or
essential characteristics of a marriage though not a marriage legally
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recognized. The Hon’ble Supreme Court drew a distinction between the
nature of marriage and marital relationship by observing as under:-
.
“36. We have already dealt with what is “marriage”, “marital
relationship” and “marital obligations”. Let us now examine themeaning and scope of the expression “relationship in the nature
of marriage” which falls within the definition of Section 2(f) of the
DV Act. Our concern in this case is of the third enumeratedcategory that is “relationship in the nature of marriage” which
means a relationship which has some inherent or essential
characteristics of a marriage though not a marriage legallyrecognized, and, hence, a comparison of both will have to be
resorted, to determine whether the relationship in a given case
constitutes the characteristics of a regular marriage.
37. The distinction between the relationship in the nature of
marriage and marital relationship has to be noted first.
Relationship of marriage continues, notwithstanding the factthat there are differences of opinions, marital unrest etc., even if
they are not sharing a shared household, being based on law.
But live-in-relationship is purely an arrangement between the
parties unlike, a legal marriage. Once a party to a live-in-
relationship determines that he/she does not wish to live in such
a relationship, that relationship comes to an end. Further, in a
relationship in the nature of marriage, the party asserting the
existence of the relationship, at any stage or at any point of
time, must positively prove the existence of the identifying
characteristics of that relationship, since the legislature has
used the expression “in the nature of”.”
12. The Hon’ble Supreme Court thereafter proceeded to elucidate
some of the categories of the cases which would or would not amount to
relationship in the nature of marriage and the same are as under:-
“38. Reference to certain situations, in which the relationship
between an aggrieved person referred to in Section 2(a) and
the respondent referred to in Section 2(q) of the DV Act, would
or would not amount to a relationship in the nature of marriage,19/04/2017 23:58:51 :::HCHP
7would be apposite. Following are some of the categories of
cases which are only illustrative:
.
38.1. (a) Domestic relationship between an unmarried adult
woman and an unmarried adult male.- Relationship between
an unmarried adult woman and an unmarried adult male wholived or, at any point of time lived together in a shared
household, will fall under the definition of Section 2(f) of the DV
Act and in case, there is any domestic violence, the same willfall under Section 3 of the DV Act and the aggrieved person can
always seek reliefs provided under Chapter IV of the DV Act.
38.2. (b) Domestic relationship between an unmarried
woman and a married adult male.- Situations may arise when
an unmarried adult women knowingly enters into a relationship
with a married adult male. The question is whether such a
relationship is a relationship “in the nature of marriage” so as tofall within the definition of Section 2(f) of the DV Act.
38.3. (c) Domestic relationship between a married adult
woman and an unmarried adult male .- Situations may alsoarise where an adult married woman, knowingly enters into a
relationship with an unmarried adult male, the question iswhether such a relationship would fall within the expression
relationship “in the nature of marriage”.
38.4. (d) Domestic relationship between an unmarried
woman unknowingly enters into a relationship with a
married adult male.- An unmarried woman unknowingly enters
into a relationship with a married adult male, may, in a given
situation, fall within the definition of Section 2(f) of the DV Act
and such a relationship may be a relationship in the “nature of
marriage”, so far as the aggrieved person is concerned.
38.5 (e) Domestic relationship between same sex partners
(Gay and Lesbians).- The DV Act does not recognize such a
relationship and that relationship cannot be termed as a
relationship in the nature of marriage under the Act. Legislatures
in some countries, like the Interpretation Act, 1984 (Western
Australia), the Interpretation Act, 1999 (New Zealand), the
Domestic Violence Act, 1998 (South Africa), the Domestic19/04/2017 23:58:51 :::HCHP
8Violence, Crime and Victims Act, 2004 (U.K.), have recognized
the relationship between the same sex couples and have.
brought these relationships into the definition of Domestic
relationship.”
13. Finally, the Hon’ble Supreme Court culled out some of the
guidelines for distinction under what circumstances, the “live-in-
relationship” would fall within the expression “relationship in the nature of
marriage” under Section 2(f) of the DV Act, which according to it were only
illustrative and not exhaustive but were only meant to give some insight to
such relationship and the same read thus:-
“56. We may, on the basis of above discussion cull out some
guidelines for testing under what circumstances, a live-inrelationship will fall within the expression “relationship in the
nature of marriage” under Section 2(f) of the DV Act. Theguidelines, of course, are not exhaustive, but will definitely give
some insight to such relationships.
56.1. Duration of period of relationship.- Section 2(f) of the
DV Act has used the expression “at any point of time”, whichmeans a reasonable period of time to maintain and continue a
relationship which may vary from case to case, depending upon
the fact situation.
56.2. Shared household.- The expression has been defined
under Section 2(s) of the DV Act and, hence, need no further
elaboration.
56.3. Pooling of resources and financial arrangements.-
Supporting each other, or any one of them, financially, sharing
bank accounts, acquiring immovable properties in joint names
or in the name of the woman, long term investments in
business, shares in separate and joint names, so as to have a
long standing relationship, may be a guiding factor.
56.4. Domestic arrangements.- Entrusting the responsibility,
especially on the woman to run the home, do the household
activities like cleaning, cooking, maintaining or upkeeping the19/04/2017 23:58:51 :::HCHP
9house, etc. is an indication of a relationship in the nature of
marriage.
.
56.5. Sexual relationship.- Marriage- like relationship refers to
sexual relationship, not just for pleasure, but for emotional and
intimate relationship, for procreation of children, so as to giveemotional support, companionship and also material affection,
caring etc.56.6. Children.- Having children is a strong indication of a
relationship in the nature of marriage. Parties, therefore, intend
to have a long standing relationship. Sharing the responsibilityfor bringing up and supporting them is also a strong indication.
56.7. Socialization in public.- Holding out to the public and
socializing with friends, relations and others, as if they are
husband and wife is a strong circumstance to hold therelationship is in the nature of marriage.
56.8. Intention and conduct of the parties.- Common
intention of parties as to what their relationship is to be and to
involve, and as to their respective roles and responsibilities,
primarily determines the nature of that relationship.”
14. Judged in the light of the aforesaid guidelines, it would be
noticed that the Court here is dealing with a case where a woman
(petitioner) herself admits that she has never married to the man (i.e. the
respondent), but would claim that respondent was having access to her
and out of this relationship, two children were born, whereas the case of
the respondent is that of total denial of not only the relationship, but also
with regard to the children being born out of this relationship.
15. As observed earlier, the parties have two grown-up children
and, therefore, the sexual relationship interse them was not just for
pleasure but for procreation of children so as to give emotional support,
companionship as also material affection, caring etc. As observed by the
Hon’ble Supreme Court, having children is a strong indication of
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relationship in the nature of marriage and would be a strong indicator to
establish that the parties intended to have long standing relationship,
.
sharing the responsibility for bringing up and supporting the children.
16. Therefore, prima-facie, having concluded that the parties are
not totally strangers, I am of the considered view that no prejudice would
be caused either to the respondent or the two children, if they undergo
DNA test. After all, only the truth will come out from such test and it has to
be remembered that every trial is a voyage of discovery in which the truth
is the quest. It is, therefore, the duty of the Court to ensure that the truth in
a case comes out. The truth is the basis of justice delivery system and
therefore, should be the guiding star in the entire judicial process. The
Court’s serious endeavour has to be to find out where in fact the truth lies.
Judges at all levels have to seriously engage themselves in the journey of
discovering the truth. That is their mandate, obligation and bounden duty.
Justice system will acquire credibility only when people will be convinced
that justice is based on the foundation of the truth.
17. Having said so, I find merit in this petition and the same is
accordingly allowed. The order passed by the learned Judicial Magistrate
1st Class, Solan, on 23. 05.2016 is ordered to be set-aside and the petition
is allowed as prayed for. Interim order granted on 30.06.2016 is vacated.
18. Petition is disposed of in the aforesaid terms, so also the
pending applications, leaving the parties to bear their own costs.
April 18th , 2017. (Tarlok Singh Chauhan),
(krt) Judge.
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