M.R. Anitha, J.:— This Original Petition has been filed against the order in C.M.P. No. 6667/2019 in M.C.11/2017 on the file of Judicial First Class Magistrate Court-III, Kottayam. Petitioner herein is the counter petitioner in C.M.P.6667/2019 in M.C. No. 11/2019. M.C. has been filed under Section 12 of the Protection of Woman from Domestic Violence Act, 2005 (in short the Act) seeking reliefs under Sections 18, 19, 20 and 22 of the Act.
2. CMP 6667/2019 has been filed by respondents 1 and 2/petitioners 1 and 2 in M.C. seeking DNA test for proving the paternity of the 2 respondent. Petitioner filed objection, but according to him, without considering the objection the learned Magistrate allowed the petition. Aggrieved by the said order, petitioner/respondent approached this court.
3. Notice was issued to the respondents. Respondents 1 and 2 appeared through Adv. Suresh Joseph. 3 respondent appeared through Public Prosecutor, Sri. Sangeeth Raj.N.R. Heard both sides. Counter affidavit was also filed by the 1 respondent.
4. Parties would be referred as per their status before the lower Court. (Petitioner herein would be referred as the respondent, and respondents 1 and 2 as the petitioners).
5. The facts in the CMP as revealed from the impugned order is that marriage of the first petitioner and the respondent was solemnized on 15.9.1999 in a Temple in Andhra Pradesh. Out of their wedlock, second petitioner was born on 22.8.2000. In 2006, respondent married another woman. It is also alleged that the respondent harassed the petitioner both mentally and physically and did not provide maintenance to the petitioners and committed domestic violence against the petitioners.
6. Respondent filed objection contending that the petition is not maintainable. Paternity of the 2 petitioner has been disputed. The respondent denied to have any relationship with the petitioners. According to him, there is no evidence to prove the marriage. There is no prima facie material to prove that the respondent is the father of the 2 petitioner. If the petition is allowed it will affect the privacy of the respondent. Hence he sought for dismissal of the petition.
7. The only point for determination is whether any interference is called for in the impugned order passed by the Magistrate directing the petitioners and respondents to appear before the authorized officer of Rajive Gandhi Centre for Bio Technology for DNA test.
8. According to the counsel for the respondent, petitioner was posted in MD FD (Modified Field) at Ratan Chowk, Jammu and Kashmir at the time of alleged marriage. No service men who are posted in MD FD, will be granted leave during the alleged period due to Kargil war. Service men posted in MD FD will not be granted accommodation facility to his family since the posting was in battle field. So the contention of the first petitioner that the respondent married the first petitioner on 15.9.1999 and resided with him in military quarters is totally false. He never resided with the first petitioner. Without considering the above aspect, directing the petitioner to undergo DNA test, would amount to interfering with the personal liberty of the respondent. No document has been produced to prove the alleged marriage. It is also his contention that as per military service rules, a service officer who is above the age of 25 years and is married, is eligible for allotment of military accommodation from the Ministry of Defence Pool when he is posted on permanent strength of Service Headquarters and inter-service organizations, provided his family is residing with him. At the time of alleged marriage, petitioner was only 23 years and hence was not eligible for obtaining military quarters.
9. The learned counsel for the respondent brought to my attention Ext-P4 and P5 to contend about the impossibility of any marriage between the first petitioner and the respondent on the date when the marriage alleged to have been solemnized. Ext.P4 is the medical Board proceedings showing the place of posting during the relevant time. Ext.P5 is the copy of the service records showing the entry of family. He would also contend that as per Ext.P5, name of his wife is shown as Raji K.R. and the name of his son is shown as Arjun A.R. and according to him at no point of time, he had any relationship or contact with the first petitioner.
10. The production of the above documents and the contention of the respondent would go to show that he is stoutly denying the marriage and the paternity of the second petitioner. It is in that context that the petitioners filed C.M.P. 6667/2019 for permitting to conduct DNA test of the petitioners with that of the respondent.
11. In this context, it is relevant to quote Bhabani Prasad Jena v. Convenor Secretary, Orissa State Commissioner for Women ((2010) 8 SCC 633 : 2010 KHC 4528) wherein the question arose with regard to the powers of the court in directing DNA test. In paragraph 9, Gautam Kundu v. State of West Bengal (1993 KHC 951 : (1993) 3 SCC 418) has been quoted. That was a case in which husband disputed the paternity of the child and prayed for blood group test of the child to prove that he was not the father of the child. The decisions of English and American Courts and some authoritative texts including the following statement made in Rayden's Law and Practice in Divorce and Family Matters, 1983, Vol.I, p.1054 has been quoted which reads thus:—
“Medical Science is able to analyze the blood of individuals into definite groups; and by examining the blood of a given man and a child to determine whether the man could or could not be the father. Blood tests cannot show positively that any man is father, but they can show positively that a given man could or could not be the father. It is obviously the latter aspect that proves most valuable in determining paternity, that is, the exclusion aspect, for once it is determined that a man could not be the father, he is thereby automatically excluded from considerations of paternity. When a man is not the father of a child, it has been said that there is at least a 70 per cent chance that if blood tests are taken they will show positively he is not the father, and in some cases the chance is even higher; between two given men who have had sexual intercourse with the mother at the time of conception, both of whom undergo blood tests, it has likewise been said that there is a 90 per cent chance that the tests will show that one of them is not the father with the irresistible inference that the other is the father.”
This Court then finally concluded, thus:
(1) that courts in India cannot order blood test as a matter of course;
(2) wherever applications are made for such prayers in order to have roving inquiry, the prayer for blood test cannot be entertained.
(3) There must be a strong prima facie case in that the husband must establish non-access in order to dispel the presumption arising under Section 112 of the Evidence Act.
(4) The court must carefully examine as to what would be the consequence of ordering the blood test; whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman.
(5) No one can be compelled to give sample of blood for analysis.”
12. Ashok Kumar v. Raj Gupta ((2021) 5 KLT 697 (SC)) was also brought to my attention, Paragraph 11.1 of the said decision is relevant to be quoted which reads thus:—
“In circumstances where other evidence is available to prove or dispute the relationship, the court should ordinarily refrain from ordering blood tests. This is because such tests impinge upon the right of privacy of an individual and could also have major societal repercussions. Indian law leans towards legitimacy and frowns upon bastardy. The presumption in law of legitimacy of a child cannot be lightly repelled. This Court, in Kamti Devi v. Poshi Ram ((2001) 2 KLT (SN 86) 108 SC = (2001) 5 SCC 311), while determining the question of standard of proof required to displace the presumption in favour of paternity of child born during subsistence of valid marriage held:
“10. We may remember that S.112 of the Evidence Act was enacted at a time when the modern scientific advancements with deoxyribonucleic acide (DNA) as well as ribonucleic acid (RNA) tests were not even in contemplation of the legislature. The result of a genuine DNA test is said to be scientifically accurate. But even that is not enough to escape from the conclusiveness of S.112 of the Act e.g. if a husband and wife were living together during the time of conception but the DNA test revealed that the child was not born to the husband, the conclusiveness in law would remain irrebuttable. This may look hard from the point of view of the husband who would be compelled to bear the fatherhood of a child of which he may be innocent. But even in such a case the law leans in favour of the innocent child from being bastardized if his mother and her spouse were living together during the time of conception. Hence the question regarding the degree of proof of non-access for rebutting the conclusiveness must be answered in the light of what is meant by access or non-access as delineated above”.
13. The learned counsel for the petitioner relied on Justice K.S. Puttaswamy (Retd.) v. Union of India (AIR 2017 SC 4161 : (2017) 1 SCC 1 : (2017) 4 KLT 1 : 2017 KHC 6577) and would contend that right to life under Article 21 of the Constitution of India is not confined to integrity of physical body and he would highlight paragraph Nos. 106 and 107 which read as follows:—
“106) As per Dworkin, there are two principles about the concept of human dignity. First principle regards an ‘intrinsic value’ of every person, namely, every person has a special objective value, which value is not only important to that person alone but success or failure of the lives of every person is important to all of us. It can also be described as self respect which represents the free will of the person, her capacity to think for herself and to control her own life. The second principle is that of ‘personal responsibility’, which means every person has the responsibility for success in her own life and, therefore, she must use her discretion regarding the way of life that will be successful from her point of view.
107) Sum total of this exposition is well defined by Professor Baxi by explaining that as per the aforesaid view, dignity is to be treated as ‘empowerment’ which makes a triple demand in the name of ‘respect’ for human dignity, namely:
(i) respect for one's capacity as an agent to make one's own free choices;
(ii) respect for the choices so made; and
(iii) respect for one's need to have a context and conditions in which one can operate as a source of free and informed choice.
14. Further he relied on paragraph 96 of the said decision and contend that human dignity is an integral part of Indian Constitution and reflections of dignity are found in the guarantee against arbitrariness (Article 14), the lamps of freedom (Article 19) and in the right of life and personal liberty (Article 21). Paragraph 96 was highlighted which reads as follows:—
“Over the last four decades, our constitutional jurisprudence has recognised the inseparable relationship between protection of life and liberty with dignity. Dignity as a Constitutional value finds expression in the Preamble. The constitutional vision seeks the realisation of justice (social, economic and political); liberty (of thought, expression, belief, faith and worship); euqlity (as a guarantee against arbitrary treatment of individuals) and fraternity (which assures a life of dignity to every individual). These constitutional precepts exist in unity to facilitate a humane and compassionate society. The individual is the focal point of the Constitution because it is in the realization of individual rights that the collective well being of the community is determined. Human dignity is an integral part of the Constitution. Reflections of dignity are found in the guaranee against arbitrariness (Art.14), the lamps of freedom (Art.19) and in the right to life and personal liberty (Art.21).
15. The learned counsel for the petitioner also relies on Selvi v. State of Karnataka ((2010) 7 SCC 263 : AIR 2010 SC 1974 : 2010 (2) KHC 412) wherein the constitutional validity of conduct of polygraph test (Lie Detector Test), Narco Analysis Test or Brain Electrical Activation Profile (Brain Mapping) Test had been dealt with in detail and it was held that no individual should be forcibly subjected to any of the techniques whether in the context of investigation in criminal cases or otherwise. The same decision was also relied on by the counsel to highlight the point that it is the right of the accused to remain silent and individual decision to make a statement is the product of private choice and there should be no scope for any other individual to interfere with such autonomy especially in circumstances where the person is exposed to criminal charges or penalties. Paragraph 188 is relevant to be quoted which reads as follows:—
“………….. A DNA profile is a record created on the basis of DNA samples made available to forensic experts. Creating and maintaining DNA profiles of offenders and suspects are useful practices since newly obtained DNA samples can be readily matched with existing profiles that are already in the possession of law - enforcement agencies. The matching of DNA samples is emerging as a vital tool for linking suspects to specific criminal acts. It may also be recalled that as per the majority decision in Kathi Kalu Oghad, (supra) the use of material samples such a fingerprints for the purpose of comparison and identification does not amount to a testimonial act for the purpose of Art.20(3). Hence the taking and retention of DNA samples which are in the nature of physical evidence does not face constitutional hurdles in the Indian context. However, if the DNA profiling technique is further developed and used for testimonial purposes, then such uses in the future could face challenges in the judicial domain.”
16. In the above decision, the Apex Court laid down a proposition that the matching of DNA sample is emerging as a vital tool for linking suspects to specific criminal acts. It is also held that use of material samples such as fingerprints for the purpose of comparison and identification does not amount to a testimonial act for the purpose of Article 20(3). Hence, the taking and retention of DNA samples which are in the nature of physical evidence does not face constitutional hurdles in the Indian context. The fact that DNA profiling technique has been expressly included among the various determination of medical examination in the amended explanation under Sections 53, 53(a) and 54 of the Code of Criminal Procedure, has also been taken note of. So from the above settled position of law it can safely be concluded that taking and retention of DNA samples are in the nature of physical evidence and cannot be said to have any infringement of personal liberty as contemplated under Article 21 of the Constitution of India.
17. In Bhabani Prasad Jena referred above also laid down the principle that when there is apparent conflict between the right to privacy of a person not to submit himself forcibly to medical examination and duty of the court to reach the truth, the court must exercise its discretion only after balancing the interests of the parties and on due consideration whether for a just decision in the matter, DNA is eminently needed. It is also emphasized that DNA in a matter relating to paternity of child should not be directed by the Court as a matter of course or in a routine manner whenever such a request is made and the court has to consider the aspects having regard to the presumption under Section 112 of the Evidence Act, and also the pros and cons of such order and the test of ‘eminent need’ whether it is not possible for the court to reach the truth without use of such test.
18. Here is a case where the respondent totally denies of having any contact with the first petitioner. Petitioner on the other hand produced along with the counter affidavit Annexure-R1(b) which is the copy of the transfer certificate of the second petitioner to show that the name of the respondent herein has been shown as the father of Ardra, second petitioner.
19. Bhabani Prasad Jena referred above, was a case in which the State Commission for Woman constituted under Section 3 of the Orissa (State) Commission for Women Act, 1993 ordered deoxyribonucleic acid test (DNA) of the child of the appellant which according to the mother of the child was its father, suo motu. In that case there was a certificate of marriage issued by the Marriage Officer under Section 13 of the Special Marriage Act, 1954. Within three months, the husband filed petition for declaration that marriage between him and the second respondent was a nullity and the marriage has not been consummated. In the matrimonial proceedings, the respondent wife filed written statement and traversed the allegations made in the petition and subsequently she filed a complaint before the State Commission for Women alleging torture meted out to her by the appellant/husband and his family members and also with regard to other issues. Based on that complaint State Commission issued notice to both parties and appellant/husband submitted his reply to the complaint and contended that the marriage was invalid due to fraud and coercion. In such a petition, Chairperson of the State Commission passed order including DNA test of Smt. Nayak. That order was challenged by filing the writ petition before the High Court of Orissa and the High Court passed an order directing that the DNA of the child shall be conducted in the SCB Medical College and Hospital, Cuttack and appellant was also directed to give the blood sample for the purpose of DNA. That order was impugned before the Apex Court by special leave and the Appeal was allowed and the orders of Orissa (State) Commission for Women was set aside.
20. In Ashok Kumar v. Raj Gupta referred above also, the law laid down is that in circumstances where other evidence is available to prove or dispute the relationship, the court ordinarily refrain from ordering blood test, since such test impinge upon the right of privacy of an individual and could also have major societal repercussions. That is because presumption of law of legitimacy of a child cannot be lightly repelled.
21. In the present case, as discussed earlier the petitioners produced copy of transfer certificate of the second petitioner to show that the name of the respondent has been shown as the father of the second petitioner. The impugned order also would show that as per the order in C.M.P.5483/2018 the learned Magistrate directed the respondent to pay the interim maintenance of Rs. 8000/- to the first petitioner and Rs. 7000/- to the second petitioner. In the Aadhar card and Grade sheet cum certificate of performance of the second petitioner in Secondary School Examination, the name of the father of the second petitioner was stated as Abhilash R. Nair and the respondent challenged that order before the Sessions Court and as per the judgment in Crl.A.206/2018 dated 22.6.2019 the interim order passed by that court was made absolute finding that prima facie court is convinced from the materials available that the petitioners had a domestic relationship with the respondent. It is also found that there is no reason to disbelieve the case of the petitioners that the first petitioner is the wife of the respondent and the second petitioner is the daughter of the respondent born to the first petitioner and that order is not further challenged. So the learned Magistrate was of the view that the relief sought for by the petitioners can be granted only if father of the second petitioner is the respondent.
22. The decisions rendered by the Apex Court in Bhabani Prasad Jena referred above, as well as in Sharda v. Dharmpal . (AIR 2003 SC 3450 : (2003) 4 SCC 493 : (2003) 2 KLT 243) also laid down that there is no proposition of law that under no circumstances, the Court shall direct blood test be conducted and in all the decisions, the Court was emphasizing duty of the court in safeguarding the future of the child by ordering such test mechanically at the instance of father who denies the paternity of the child. It would also lay down a principle that such directions should be made if it is in the interest of the child while determining the question whether subjecting a person to a medical test is violative of Article 21 of Constitution of India. The right to privacy in terms of Article 21 of the Constitution of India is not an absolute right. Sharda's case referred above, arose out of an application for divorce filed by the husband against the wife under Section 13(1)(iii) of Hindu Marriage Act, 1955 and the Court summed up the conclusions thus:
“1. A matrimonial court has the power to order a person to undergo medical test.
2. Passing of such an order by the court would not be in violation of the right to personal liberty under Article 21 of the Indian Constitution
3. However, the Court should exercise such a power if the applicant has a strong prima facie case and there is sufficient material before the Court. If despite the order of the court, the respondent refuses to submit himself to medical examination, the court will be entitled to draw an adverse inference against him.”
23. In paragraph 12 of Bhabani Prasad Jena's case while discussing Goutam Kundu ((1993) 3 SCC 418 : AIR 1993 SC 2295 : 1993 SCC (Cri) 928 : 1993 KHC 951) it has been held that even the result of a genuine DNA test may not be enough to escape from the conclusiveness of Section 112 of the Evidence Act like a case where a husband and wife were living together during the time of conception. Paragraph 13 of the said decision has been relevant to be quoted which reads as under:
“………….. In our view, when there is apparent conflict between the right to privacy of a person not to submit himself forcibly to medical examination and duty of the court to reach the truth, the court must exercise its discretion only after balancing the interests of the parties and on due consideration whether for a just decision in the matter, DNA is eminently needed. DNA in a matter relating to paternity of a child should not be directed by the court as a matter of course or in a routine manner, whenever such a request is made. The court has to consider diverse aspects including presumption under Section 112 of the Evidence Act; pros and cons of such order and the test of ‘eminent need’ whether it is not possible for the court to reach the truth without use of such test.”
24. Courts should always be cautious in making an innocent child from being bastardized if his mother and spouse were living together during the time of conception even if the result of DNA test is found to be against mother and child. In the present case, the petitioner is stoutly denying of having had any contact at all with the first petitioner and totally denying the case of the petitioners.
25. In the above circumstances, it would become absolutely necessary to order DNA test to find out the truth regarding the paternity of the second petitioner. So the impugned order passed by the learned Magistrate is perfectly in order. I find no reason to interfere with the same.
26. In the result, Original Petition is found to be devoid of any merit and hence stands dismissed.
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