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Dev Raj Dev vs The State Of Bihar Through The … on 20 July, 2018

IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ Jurisdiction Case No.950 of 2017
Arising Out of PS. Case No.- Year- Thana- District- Purnia

Dev Raj Dev Son of Ramchandra Bhagat, Resident of Shiksha nagar
Banmankhi, P.S.- Banmankhi, District- Purnia (Bihar) presently posted at
Coimbatore as Commissionar of disciplinary Proceedings.

… … Petitioner
Versus

1. The State of Bihar Through The Principal Secretary General Administration
Dept. Govt. of Bihar, Patna .

2. Pritam Chaudhary, D/o Dr. P.K. Choudhary , Resident of Navratan Hata
Purnia, P.S.- K. Hat Purnia, presently Residing at not disclosed and Refused
to inform the Court.

… … Respondents

Appearance :

For the Petitioner/s : Mr. Sandeep Kumar, Advocate
Mr. Samrendra Kumar Jha, Advocate
Mr. Rohit Raj, Advocate
For the Respondent no. 2: Mr. Saket Tiwary, Advocate
Mr. Saket Gupta, Advocate
For the State : Mr. Parth Sarthi (GA 4)
Mr. Apurva Kumar, AC to G..A. -4

CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
ORAL JUDGMENT
Date : 20-07-2018

Petitioner in the present case has moved this Court

seeking a writ of Certiorari to quash and cancel the part of the

order dated 10.11.2016 passed by the learned Principal Judge,

Family Court, Purnea in Maintenance Case No. 208 of 2013 vide

Annexure-4 to the writ application. Upon quashing of impugned

order the further prayer of the petitioner is to issue a writ of

Mandamus directing the Principal Judge, Family Court, Purnea to

get conducted the Dioxy Nucleric Acid Test (DNA test) of the

applicant, his wife and the youngest son in two laboratories at the

cost of the applicant.

Patna High Court Cr. WJC No.950 of 2017 dt.20-07-2018
2/14

2. The grievance of the petitioner is that even though in

course of her deposition in Maintenance Case No. 208 of 2013 the

wife of the petitioner took a stand that if the court would direct for

paternity test of her sons, she would be ready to go for that test,

later on when an application seeking such a direction was filed by

the petitioner, she opposed his application on various grounds and

refused to give consent for the DNA test. Considering the

objections of the wife, the learned Principal Judge, Family Court,

Purnea rejected the application dated 17.05.2014 preferred by the

present petitioner. The impugned order dated 10.11.2016 has been

annexed as Annexure-4 to the present writ application.

3. Mr. Sandeep Kumar, learned Advocate assisted by

Mr. Sunil Kumar and Mr. Ranjit Kumar, learned Advocates

submits that this petitioner has filed a divorce case under Section

13 of the Hindu Marriage Act on the statutory ground of cruelty,

the divorce petition was registered as Matrimonial Case No. 201 of

2012 in the Family Court, Purnea. It is admitted that in the divorce

petition there was no allegation of ‘adultery’ and the same was not

set forth as a ground for divorce. It is, however, stated that during

pendency of the divorce case, the wife of the petitioner

(respondent no. 2) brought a Maintenance Case giving rise to

Maintenance Case No. 208 of 2013 in the court of learned
Patna High Court Cr. WJC No.950 of 2017 dt.20-07-2018
3/14

Principal Judge, Family Court, Purnea. The learned Principal

Judge, Family Court, Purnea vide his order dated 20.01.2014

awarded an interim maintenance of Rs. 18,000/- per month, which

according to the petitioner is being paid to respondent no. 2. At the

stage of awarding interim maintenance, though no plea of

‘adultery’ was taken against the respondent no. 2 but after few

days, the petitioner filed an application dated 17.05.2014 seeking

DNA test in which he questioned the paternity of the youngest son

delivered by respondent no. 2 during the subsistence of marriage.

In his application before the learned Principal Judge, the petitioner

traced the entire history of his conjugal life since marriage and

though he admitted that there had been occasional marital

intercourse with respondent no. 2 on various occasions, he raised a

doubt on the paternity of the second son citing certain

circumstances. It is his stand that there were several marital

intercourse during the natural cycle and after the birth of first child

but the petitioner had never gone for unsafe intercourse with the

respondent no. 2 in the present case.

4. It is the submission of the petitioner that in the case

of Dipanwita Roy vs. Ronobroto Roy reported in (2015) 1 SCC

365 the Hon’ble Supreme Court had occasion to go through the

entire case laws on the subject and finally agreed with the
Patna High Court Cr. WJC No.950 of 2017 dt.20-07-2018
4/14

submissions of the husband that in the process of substantiating his

allegation of infidelity he had made an application before the

Family Court for conducting DNA test which would establish

whether or not he had fathered the male child born to the

appellant’s wife. The Hon’ble Supreme Court in its observation in

paragraph 17 of the said judgment inter alia held as under :

“…. respondents 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 directions issued
by the High Court, as has been extracted
hereinabvoe, 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 mot 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.”

5. While assailing the impugned order dated

10.11.2016, Mr. Kumar, learned counsel submits that the learned

Principal Judge was more impressed with the fact that this
Patna High Court Cr. WJC No.950 of 2017 dt.20-07-2018
5/14

petitioner had not taken the plea of ‘adultery’ in the divorce

petition filed under the Hindu Marriage Act and in the Matrimonial

Suit he had admitted about the second son being his son and there

was no pleading that the respondent no. 2 had any illicit

relationship with anyone. It is for this reason that the judgment of

the Hon’ble Supreme Court in the case of Dipanwita Roy (Supra)

had been distinguished by the learned Principal Judge, Family

Court and rejected the contention of the petitioner. Further

consideration which prevail with the learned Principal Judge, as

reflected in the impugned order, is that the youngest son was born

on 24.02.2005 and the petitioner has made an objection against the

paternity of the youngest son (after 8 years of his birth) without

there being any reasonable or plausible explanation as to why he

has raised this objection after such a long time. The submission is

that the impugned order passed by the learned Principal Judge,

Family Court, Purnea is wholly illegal, arbitrary and bad in law,

hence, the same is liable to be set aside.

6. On the other hand, Mr. Saket Kumar Tiwary, learned

Advocate representing the respondent no. 2 has heavily and

strongly opposed the submissions of Mr. Kumar. Learned counsel

for the respondent no. 2 submits that the petitioner is now making

the allegations of ‘adultery’ and is questioning the paternity of his
Patna High Court Cr. WJC No.950 of 2017 dt.20-07-2018
6/14

second son on a totally baseless ground. It is pointed out that the

marriage in the present case took place on 22.11.2000 in

accordance with Hindu rites and customs. The petitioner admits in

his petition that after marriage both the petitioner and respondent

no. 2 had been living together and admittedly they were going for

marital intercourse on several occasions. In such circumstance, the

doubt raised by the petitioner as to paternity of his second son on

the ground that because both the petitioner and respondent no. 2

are having blood group of B Positive so they cannot give birth to a

child with A Positive blood group and further that the petitioner

was indulging in intercourse with safe methods only cannot be a

ground to seek paternity test of the child after 8years of his birth.

7. Mr. Tiwary has placed before this Court Section 112

of the Evidence Act which has been discussed in the case of

Nandlal Wasudeo Badwaik v. Lata nandlal Badwaik reported in

(2014) 2) SCC 576 and the judgment of the Hon’ble Supreme

Court in the case of Bhabani Prasad Jena versus Convenor

Secretary, Orissa State Commission for Women and Another

reported in (2010) 8 SCC 633 to contend that the provisions of

Section 112 of the Evidence Act conclusively prove, in the facts of

the present case that the youngest son has been fathered by this

petitioner, however, the Hon’ble Supreme Court while considering
Patna High Court Cr. WJC No.950 of 2017 dt.20-07-2018
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the DNA test report which was showing that the appellant in that

case of Dipanwita Roy (Supra) was not the biological father of

the girl child held that depending on the facts and circumstances of

the case only it would permissible for a court to direct the holding

of a DNA examination to determine the veracity of the allegations

which constitute one of the grounds, on which the party concerned

would either succeed or lose. In paragraph 16 of the judgment in

the case of Dipanwita Roy (Supra) the Hon’ble Supreme Court

has cautioned that if the direction to hold such a test can be

avoided, should be so avoided. The Hon’ble Supreme Court has

held that the legitimacy of a child should not be put on peril.

8. Learned counsel submits that this case is not a fit

case for a direction to conduct DNA test for various reasons.

Firstly, that the marriage in the present case was solemnized in the

year 2000, the parties lived together and had access to each other

and admittedly, they went for intercourse on several occasions. If

this is the position, questioning the paternity of a child after 8

years of his birth should not be allowed to take place as it would

put the child in peril. It is submitted that the court should adopt the

eminent theory as has been laid down in the case of Dipanwita

Roy (Supra) wherein if the DNA test is the only way out left to put

it rest the controversy and there is no other way out, then, only the
Patna High Court Cr. WJC No.950 of 2017 dt.20-07-2018
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court should direct for DNA test. It is submitted that this Court

would also take note of the fact that initially in the divorce petition

for annulment of marriage, the present petition did not take any

plea of ‘adultery’ but at a belated stage, he did file an application

under Order 6 Rule 17 of the Code of Civil Procedure for

amendment of pleadings to introduce a plea of ‘adultery’ against

respondent no. 2 but thereafter, on his own will and volition, the

petition seeking amendment of plaint in the divorce case has been

withdrawn as not pressed. While seeking withdrawal of the

petition for amendment no reason whatsoever has been given.

Here, this Court would take note of the explanation furnished by

Mr. Sandeep Kumar, learned Advocate for the petitioner in this

regard submitting that the amendment petition was withdrawn only

when the wife (respondent no. 2), in course of her cross-

examination in the maintenance case, agreed that if the court

orders for DNA test, she would go for that test. It has been

submitted that taking a bonafide approach, the petitioner withdrew

his application seeking amendment in the divorce case. Mr.

Tiwary, learned counsel for the respondent no. 2, has, however,

submitted that the plea now being advanced by the petitioner to

explain the withdrawal of the amendment petition is not a bonafide

plea as it is not his plea that the withdrawal was based on any legal
Patna High Court Cr. WJC No.950 of 2017 dt.20-07-2018
9/14

opinion. It is submitted that the proceeding under Section 125

Cr.P.C. is only a summary proceeding as has been held by this

Court in the case of Vijay Shankar Prasad Vs. Smt. Manika

Roy reported in 1990 (2) PLJR 104. In a summary proceeding

seeking maintenance, the court is not supposed to decide or look at

the allegations of ‘adultery’ or ‘paternity’ of a child. Referring to

Section 125 (4) Cr.P.C. which reads as follows:-

“125(4). No wife shall be entitled to receive
an allowance from her husband under this
Section if she is living in adultery, or if,
without any sufficient reason, she refused to
live with her husband, or if they are living
separately by mutual consent.”

Mr. Tiwary, submits that Section 125 (4) Cr.P.C. maybe taken

recourse to only when it is the case of the husband that his wife is

living in ‘adultery’, in the present case, it is contended that there is

no allegation that respondent no. 2 is living in ‘adultery’. Learned

counsel submits that living in ‘adultery’ is one thing and

committing an act of ‘adultery’ is another thing. In this connection,

he has drawn the attention of this Court towards paragraph 7 of the

judgment in the case of Vijay Shankar Prasad (Supra).

9. Learned counsel has further relied upon the

paragraph 21 of the judgment in the case of Bhabani Prasad Jena

(Supra) and submits that in the facts of the present case the second
Patna High Court Cr. WJC No.950 of 2017 dt.20-07-2018
10/14

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 only be prejudicial to the rights of the

parties but may have devastating effect on the child, is required to

be adopted. Placing reliance on yet another judgment of the

Hon’ble Supreme Court in the case of Sham Lal Alias Kuldip

versus Sanjeev Kumar and others reported in (2009) 12

Supreme Court Cases 454. Learned counsel submits that the

Rule, contained in Section 112 of the Evidence Act provides that

the continuance of a valid marriage will prevent an inference being

drawn to the effect that the child born to a woman during the

continuance of a valid marriage was born to another person as a

result of adulterous intercourse is only a rule of evidence and the

presumption under Section 112 of Evidence Act, 1872

contemplates is a conclusive presumption of law which can be

displaced only by proof of the particular fact mentioned in the

Section, namely, non-access between the parties to the marriage at

a time when according to the ordinary course of nature, the

husband could have been the father of the child. Referring to the

judgment of the Hon’ble Supreme Court in the case of Goutam

Kundu V. State of W.B. reported in (1993) 3 SCC 418 (paragraph

26), learned counsel submits that the Hon’ble Supreme Court has
Patna High Court Cr. WJC No.950 of 2017 dt.20-07-2018
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held that there cannot be a roving inquiry on mere allegations of

chastity. There must be a strong prima facie case in which the

husband must establish non-access in order to dispel the

presumption arising under Section 112 of the Evidence Act. It is

submitted that the facts of this case, in fact, shows otherwise

wherein the husband (the petitioner) admits his access to

respondent no. 2 but at this belated stage he is questioning the

paternity of his second child. It is, thus, submitted that by rejecting

the petition dated 17.05.2014 filed by this petitioner, the learned

Principal Judge, Family Court, Purnea has not committed any

wrong.

CONSIDERATION

10. Having heard learned counsel for the parties and on

perusal of the records as also after going through the various

judgments of the Hon’ble Supreme Court and this Hon’ble Court

cited at the Bar, I am of the considered opinion that the petitioner

is not able to make out a case for interference with the impugned

order. The reasons which prevail with me for taking this view are

summarized hereunder:

(i) In a marriage which took place on 22.11.2000 and the

youngest son was born in the year 2005, for the first time this

petitioner questioned the paternity of his second child by filing an
Patna High Court Cr. WJC No.950 of 2017 dt.20-07-2018
12/14

amendment application in the divorce petition being Matrimonial

Case no. 201 of 2012 after about 8 years from the date of birth of

his second child. The fact that in the original plaint there was no

allegation of adultery and subsequently the amendment petition

was withdrawn unconditionally on his own will, would compel

this Court to take a view that the petitioner had set out a case of

‘adultery’ at a much belated stage and the learned Principal Judge,

Family Court, Purnea has committed no error by taking into

consideration of this aspect of the matter going against the

petitioner.

(ii) It is the case of the petitioner himself that he was living with

respondent no. 2 and had access to her. He has admitted

establishing physical relationship/intercourse during the period on

or about which the second son was conceived, he had filed a case

against Mr. Manish Kumar with whom respondent no. 2 allegedly

had fathered the second son but the case filed against Manish

Kumar has already been dismissed.

(iii) In 125 Cr.P.C. proceeding which is in the nature of a

summary proceeding, a wife may be debarred from getting

maintenance only when it is proved that she is ‘living in adultery’.

In the present case the facts suggest that the allegation of the

petitioner against his wife is that of committing an act of ‘adultery’
Patna High Court Cr. WJC No.950 of 2017 dt.20-07-2018
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and not that she is ‘living in adultery’. Even that allegation of

committing an act of ‘adultery’ is now not existing because the

amendment petition filed in divorce case has already been

withdrawn unconditionally.

(iv) In the present case the petitioner is unable to demonstrate

even prima facie that he had no access to his wife during the

period the second son was conceived. The Privy Council in the

case of Karapaya Servai v. Mayandi reported in AIR (1934)39

LW 244 : AIR 1934 PC 49 held that existence and non-existence

of opportunities for material intercourse and in a case where such

an opportunity was shown to have existed during the subsistence

of a valid marriage, the provision by invocation of law accepted

the same as conclusive proof of the fact that the child born during

the subsistence of the valid marriage, was a legitimate child. The

determination of the Privy Council in Karapaya Servai (Supra)

was approved by the Hon’ble Supreme Court in the case of

Chilukuri Venkateshwarlu V. Chilukuri Venkatanarayana

reported in 1954 SC 424 : AIR 1954 SC 176. The judgments have

been taken note of by the Hon’ble Apex Court in the case of

Dipanwita Roy (Supra).

Patna High Court Cr. WJC No.950 of 2017 dt.20-07-2018
14/14

(iv) The views propounded by the Hon’ble Supreme Court in

paragraph 21 of the judgment rendered in the case of Bhabani

Prasad Jena (Supra) reads as under:-

“In a matter where paternity of a child is in
issue before the court, the use of DNA test is
an extremely delicate and sensitive aspect.
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.
The other view is 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 only be
prejudicial to the rights of the parties but may
be devastating effect on the child. Sometimes
the result of such scientific test may bastardise
an innocent child even though his mother and
her spouse were living together during the
time of conception.”

11. On going through the judgments of the Hon’ble

Supreme Court which have been cited at the Bar and I have taken

note of the same hereinabove, I am inclined to take the second

view in the facts and circumstances of this case. Finding no merit,

this writ application is dismissed.

(Rajeev Ranjan Prasad, J)
avin/-

AFR/NAFR AFR
CAV DATE NA
Uploading Date 20.07.2018
Transmission Date 20.07.2018

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