SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Sharda vs Surat Singh on 18 April, 2017

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

19/04/2017 23:58:51 :::HCHP
2

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 the

19/04/2017 23:58:51 :::HCHP
3

court 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 relationship

should 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 is

required 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 be

registered 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

19/04/2017 23:58:51 :::HCHP
4

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 Women

19/04/2017 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 which

the 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 child

should 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

19/04/2017 23:58:51 :::HCHP
6

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 the

meaning 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 enumerated

category 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 legally

recognized, 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 fact

that 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
7

would 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 who

lived 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 will

fall 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 to

fall 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 also

arise where an adult married woman, knowingly enters into a
relationship with an unmarried adult male, the question is

whether 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 Domestic

19/04/2017 23:58:51 :::HCHP
8

Violence, 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-in

relationship will fall within the expression “relationship in the
nature of marriage” under Section 2(f) of the DV Act. The

guidelines, 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”, which

means 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 the

19/04/2017 23:58:51 :::HCHP
9

house, 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 give

emotional 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 responsibility

for 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 the

relationship 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

19/04/2017 23:58:51 :::HCHP
10

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.

19/04/2017 23:58:51 :::HCHP

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2021 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation