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MADHYA PRADESH HIGH COURT
B.K. Shrivastava, J.
Badri Prasad Jharia - Appellant
Versus
Vatsalya Jharia - Respondent
Criminal Revision No. 1431 of 2018
Decided On : 26-06-2020
DNA Test - Maintenance under Section 125 of Cr.P.C - Section 112 of Evidence Act, Section 13 of Hindu Marriage Act - [S.112 of Evidence Act, S.13 of Hindu Marriage Act, S.125 of Cr.P.C] - The court discussed the importance and applicability of DNA test in family matters, the legal provisions of Section 112 of the Evidence Act, and the burden of proof in establishing non-access to dispel the presumption. The court emphasized the delicate and sensitive nature of DNA testing in matters of paternity and the need for a strong prima facie case to order a DNA test. The judgment highlighted the conflict between the conclusive proof under law and the scientifically accurate DNA test, and the need to balance the interests of the parties. The court also emphasized the presumption of legitimacy under Section 112 of the Evidence Act and the need for strong, clear, and conclusive evidence to rebut the presumption. The judgment further discussed the legal principles established in various cases related to DNA testing and paternity disputes, emphasizing the need to avoid DNA testing if possible to protect the legitimacy of the child. The court ultimately dismissed the revision, stating that the husband failed to prove non-access and that DNA testing is not mandatory in proceedings under Section 125 of Cr.P.C.
Fact of the Case:
The wife filed an application under Section 125 of Cr.P.C seeking maintenance for her daughter. The husband alleged adultery and sought a DNA test, but the wife refused. The court dismissed the husband's application for DNA testing, and the husband filed a revision challenging the order.
Finding of the Court:
The court found that the wife did not refuse the DNA test in the case under Section 125 of Cr.P.C, and her refusal in the case under Section 13 of Hindu Marriage Act could not be considered in this case for drawing a presumption against her. The court emphasized that DNA testing is not mandatory in proceedings under Section 125 of Cr.P.C and that legitimate and illegitimate children are entitled to maintenance. The court also noted that the husband failed to prove non-access and that the amount granted for maintenance was not excessive.
Issues: The issues revolved around the refusal of the wife for a DNA test, the applicability of DNA testing in family matters, and the burden of proof in establishing non-access to dispel the presumption under Section 112 of the Evidence Act.
Ratio Decidendi: The court's decision was based on the principles established in various cases related to DNA testing and paternity disputes, emphasizing the delicate and sensitive nature of DNA testing, the need for a strong prima facie case to order a DNA test, and the balance of interests between the parties. The court also emphasized the presumption of legitimacy under Section 112 of the Evidence Act and the need for strong, clear, and conclusive evidence to rebut the presumption.
Final Decision: The court dismissed the revision, stating that the husband failed to prove non-access and that DNA testing is not mandatory in proceedings under Section 125 of Cr.P.C.
JUDGMENT
B.K. Shrivastava, J. - This Criminal Revision has been preferred by the Petitioner / Husband Badri Prasad Jharia on 26.03.2018 U/s. 397 of Cr.P.C read with S.19 of Family Court against the order dated 26.02.2018 passed by Principal Family Court Mandla passed in MJC No.310/2014.
2. It is an admitted fact that the Petitioner Badri Prasad was married with Sita Jhariya, on 23.06.1999 at Village Bhua Bichhiya, District Mandla. The wife is working as teacher and the husband is working as clerk in the Government I.T.I. Chindwada. Out of their wedlock, daughter named Vatsala Jharia [Respondent] was born on 09.06.2009.
3. The wife Sita Jharia filed an application under Section 125 of Cr.P.C before the Family Court on 27.11.2012 for seeking maintenance for her daughter Vatsala aged about 3 years. Husband appeared in the case on 26.02.2013 and filed reply on 02.07.2013. On 26.02.2018 the Court passed the impugned order and granted the maintenance to Vatsala Jharia @ Rs.5000/- P.M. from the date of her entitlement to get the maintenance.
4. It is submitted by the petitioner that the wife was living in adulterous life, having illicit relationship with a person named Vinod Singore. The wife of the aforesaid Vinod Singore (named Kiran Singore) has also initiated the proceedings under Section 494 of IPC against her husband. The petitioner also filed an application against the wife under Section 13 of Hindu Marriage Act for divorce upon the ground of adultery. In that petition the petitioner filed an application for DNA test, but the wife refused it, therefore, Family Court dismissed the application. The petitioner preferred a Writ Petition No.15345/2016 in which order Annexure A/5 was passed and the direction was also given that after adducing evidence the applicant may prefer fresh application for DNA test. The applicant preferred an application in MJC No.310/2014 (U/s 125 Cr.P.C.) for DNA test, but the Family Court dismissed the aforesaid application. It is submitted that the trial Court should draw the presumption against the wife because of her refusal for DNA test. The trial Court misrepresented the evidence of both the parties. The petitioner having no access to her wife Sita Jhariya for 5 years. The petitioner also relied upon the Dipanwita Roy Vs. Ronobroto Roy, (2015) 1 SCC 365 . Upon the aforesaid ground it is requested to set aside the impugned order and dismissed the petition filed under Section 125 of Cr.P.C.
5. After service of the summon, on behalf of the respondent, 7 Advocates have filed their joint Vakalatnama on 04.02.2019, but thereafter on 20.11.2019, 04.12.2019 and 05.12.2019, no one was appeared on behalf of the respondent. Therefore, matter has been heard ex-party against the respondent.
6. The main grievance of the petitioner is that the trial Court failed to draw the presumption under Section 114 of Evidence Act against the wife, while wife was not agreed for the DNA test. Because the wife refused to DNA test, therefore, her refusal should be taken for the purpose of presumption against her.
7. It necessary to understand about the DNA test and its accuracy. It has been said in Nandlal Wasudeo Badwaik Vs. Lata Nandlal Badwaik & Anr., (2014) 3 MPHT 326 = (2014) 2 SCC (Civ) 145 = (2014) 4 SCC (Cri) 65 [S.C.] = (2014) 2 SCC 576 }. that all living beings are composed of cells which are the smallest and basic unit of life. An average human body has trillion of cells of different sizes. DNA (Deoxyribonucleic Acid), which is found in the chromosomes of the cells of living beings, is the blueprint of an individual. Human cells contain 46 chromosomes and those 46 chromosomes contain a total of six billion base pair in 46 duplex threads of DNA. DNA consists of four nitrogenous bases adenine, thymine, cytosine, guanine and phosphoric acid arranged in a regular structure. When two unrelated people possessing the same DNA pattern have been compared, the chances of complete similarity are 1 in 30 billion to 300 billion. Giv
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