1986 Supreme(All) 31

IN THE HIGH COURT OF ALLAHABAD
B. D. AGRAWAL
BHARTI RAJ - Appellant
Versus
SUMESH SACHDEO - Respondents
HAB. COR. PETN. 4064 Of 1982
Decided On : 01/22/1986

The doctrine of constructive res judicata is confined to civil actions and civil proceedings. This principle of public policy is entirely inapplicable to illegal detention and does not bar a subsequent petition for a writ of habeas corpus under Art. 32 of the Constitution on fresh grounds, which were not taken in the earlier petition for the same relief.

Headnote:

GUARDIANS AND WARDS ACT - SECTION 25/12 - HINDU MINORITY AND GUARDIANSHIP ACT, 1956 - SECTION 6. 8 - WRIT PETITION - BLOOD TEST - PRODUCTION OF CHILD - RES JUDICATA - FRESH GROUNDS - EVIDENCE - INFERENCE - CHILD'S WELFARE - MEDICAL JURISPRUDENCE - BLOOD GROUP SYSTEMS - EXCLUSION OF PATERNITY - HLA SYSTEM - EVIDENTIAL VALUE - COLLATERAL REASON - INHERENT POWERS OF COURT - SCRUTINY OF EVIDENCE - RECONCILIATION OF PARTIES - DISMISSAL OF APPLICATIONS.

Fact of the Case:

A child was born to Smt. Alka Sachdeo wife of Sri Sudesh Sachdeo on 16th Nov. , 1981 at 10. 40 p. m. in the Nazareth Hospital, Allahabad. Smt. (Dr.) Bharti Raj wife of Baldeo Raj delivered twins the same day at 10. 50 p. m. and 11. 00 p. m. respectively in the same hospital. The petitioners case is that one of these twins was a male and the other a female and further that the child born of Smt. Alka Sachdeo was female. It is alleged that the hospital staff in collusion made an interchange whereby the petitioners male child was passed over to Smt. Alka Sachdeo and replaced by the female child of the latter. Sri Baldeo Raj gave an application to the Director, Nazareth Hospital on Nov. 20, 1981, expressing doubt that one of his children had been changed in this hospital from the labour room. The Director replied the same day after inquiry made by him that there had been no replacement or change of any kind and pointing further that blood test could not be had in the hospital and that the applicant might get the blood test of the female babies done if he so wished. Sri Baldeo Raj also lodged first information report in P. S. Cannington at 5. 45 p. m. the same day for offence under Sec. 420 Penal Code. The two female babies died on Nov. 23, 1981. On Dec. 16, 1981 Sri Baldev Raj filed a petition under Sec. 25/12 of the Guardians and Wards Act read with Sec. 6. 8 of the Hindu Minority and Guardianship Act, 1956, in the Court of the District Judge, Allahabad with the prayer that the opposite parties be directed to deliver custody of the male child in question to the petitioner and that they be restrained from removing or sending the child from Allahabad and his interim custody be given to the petitioner.

Finding of the Court:

1. The petition filed by Sri Baldeo Raj under the Guardians and Wards Act is maintainable. 2. The order restraining the opposite parties from removing the child outside the jurisdictional limit of the Court be modified so that the opposite parties might remove the child outside the territorial jurisdiction of this Court subject to the opposite party 5, Sri Jagrati Lal Sachdeo (father of Sudeh Sachdeo) furnishing a personal security to the tune of Rs. 50,000/- to ensure the compliance of the orders of the Court and requiring him to furnish to the Court every month information about the welfare of the child and also a certificate from a qualified doctor about his health. 3. The application made by the petitioner asking for security from the opposite parties for the safety of the child besides the costs of the petition be rejected.

Issues: 1. Whether the order of the District Judge refusing to grant temporary injunction in favour of the revisionist is erroneous? 2. Whether the petitioner can ask for or have the child produced for the blood test being gone into without giving evidence to afford prima facie satisfaction to the fact that the disputed child was born to Smt. (Dr.) Bharti Raj? 3. Whether the doctrine of constructive res judicata applies to a subsequent petition for a writ of habeas corpus on a ground which the petitioner might and ought to have taken in his earlier petition for the same relief? 4. Whether there are fresh grounds existing then in the instant case in aid of the prayers made through these applications which Sri Baldeo Raj insists upon being granted at this stage? 5. Whether in the facts and circumstances of the case, the Court should direct immediate production of the child for the blood test to be gone into?

Ratio Decidendi: 1. The decision in Civil Revision 80 of 1982 on the issue of temporary injunction does not operate as a bar to these proceedings, but does not take away the effect of the decision reached in the earlier writ petition between the parties. 2. The petitioner cannot ask for or have the child produced for the blood test being gone into without giving evidence to afford prima facie satisfaction to the fact that the disputed child was born to Smt. (Dr.) Bharti Raj. 3. The doctrine of constructive res judicata is confined to civil actions and civil proceedings. This principle of public policy is entirely inapplicable to illegal detention and does not bar a subsequent petition for a writ of habeas corpus under Art. 32 of the Constitution on fresh grounds, which were not taken in the earlier petition for the same relief. 4. There are no fresh grounds existing then in the instant case in aid of the prayers made through these applications which Sri Baldeo Raj insists upon being granted at this stage. 5. In the facts and circumstances of the case, the Court should not direct immediate production of the child for the blood test to be gone into.

Final Decision: Applications dismissed.