1 Cri.Writ Petition No.1050 of 2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.1050 OF 2010 1. Sangita W/o.Arjun Gosavi, Age-32 years, Occu-NIL, 2. Ajinkya S/o.Arjun Gosavi, Age-6 ½ years, Occu-NIL, Through guardian mother petitioner no.1. Both R/o.C/o. Popat Rambhau Shendage, Shendagewadi, Tq.Shrigonda, Dist. Ahmednagar PETITIONERS VERSUS 1. Arjun S/o.Dattatraya Gosavi, Age-32 years, Occu-Service, R/o.Mandavgan, Tq.Shrigonda, Dist. Ahmednagar 2. The State of Maharashtra RESPONDENTS ...... Mr.N.V.Gaware, counsel for the petitioners. Mr.G.R.Ingole, A.P.P. for respondent State. Mr.P.D.Suryawanshi, counsel for respondent no.1. ...... CORAM : A.V.POTDAR, J. DATE : 1 st April 2011 ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith. By consent of the 2 Cri.Writ Petition No.1050 of 2010 learned counsel for the parties, this petition is heard finally at the stage of admission. 2. By the present petition, under Article 227 of the Constitution of India r/w section 482 of the Criminal Procedure Code, the petitioners have prayed to quash and set aside the impugned judgment and order dated 02.09.2010, passed by the learned Additional Sessions Judge, Ahmednagar in Criminal Revision Application No.198/2009. 3. Such of the facts as are necessary for the decision of this petition may briefly be summarized as follows : Petitioner No.1 claims that she is married with respondent No.1 on 09.05.2001 and out of the said wedlock, petitioner No.2 is born on 20.04.2003. As respondent No.1 refused and neglected to maintain the petitioners, petitioner No.1 has filed Criminal M.A. No.90/2006 in the Court of J.M.F.C. Shrigonda, Dist. Ahmednagar. In response to the summons issued to respondent No.1, he appeared in the said proceeding and by filing say cum written statement denied that he had married with the first petitioner and also denied paternity of petitioner No.2. According to him, he never had physical relations with present petitioner No.1, and hence there is no question of paternity of present petitioner No.2. It appears that after the pleadings were completed the parties were directed to lead evidence by learned J.M.F.C. in support of their respective pleadings. Present 3 Cri.Writ Petition No.1050 of 2010 respondent No.1 examined himself and his deposition is at Exhibit-40. The material part of his cross examination, which was concluded on 28.11.2007 reads as, “I denied that the first applicant was divorced from her husband on 11.08.2000. I denied that after the applicant no.1 obtained divorce from her husband, I got married with her on 09.05.2001. It is not correct to suggest that from 09.05.2001 to December 2003, I was residing and co-habiting with applicant no.1 as a husband and wife. In no uncertain terms, he has further stated that he had never established physical relations with petitioner No.1. He has further stated that if petitioner No.1 is ready to bear the expenses, he is ready to face the DNA test, to decide the paternity of petitioner No.2. He has further denied that the petitioners were treated in the hospital of Dr.Tamboli at Ahmednagar. 4. It appears that on the day the cross examination was over, an application (Exhibit-45) was moved by the present petitioner No.1 for DNA test of petitioner No.2 and respondent No.1, on which present respondent No.1 had filed his say. It appears that after hearing the parties and after considering the application and the say filed to the said application, the learned Magistrate passed an order below Exhibit-45 and allowed the application and directed respondent No.1 to face the DNA test after petitioner No.1 deposits necessary charges. It appears that thereafter on 30.04.2008, the present petitioner No.1 deposited Rs.12,000/- in the Court of J.M.F.C. Shrigonda. It further appears that an application was moved by the present respondent No.1 before the Trial Court 4 Cri.Writ Petition No.1050 of 2010 requesting to direct applicant No.1 to deposit the amount of traveling expenses for the purpose of DNA test of respondent No.1. It appears that pursuant to the request of respondent No.1, the trial Court directed the petitioner No.1 to deposit the amount towards the traveling expenses. It appears that petitioner No.1 deposited the said amount on 20.09.2008 by moving an application (Exhibit-67). It further appears that thereafter an application (Exhibit-69) was moved by respondent No.1 requesting to allow him to withdraw the amount of Rs.2,000/- which was deposited by the present petitioner No.1 towards traveling expenses. Record shows that an order was passed directing present respondent No.1 first to bear the expenses and then to claim reimbursement by producing the bills of the traveling expenses. It appears that thereafter Criminal Revision No. 198/2009 was preferred by the present respondent No.1 before the Sessions Judge, Ahmednagar, questioning the correctness of the order passed by the learned Magistrate below Exhibit-45, referring respondent No.1 for D.N.A. Test. Learned Additional Sessions Judge while allowing the Criminal Revision Application has observed that in view of the judgment of the Supreme Court that no one can be compelled to give blood sample for analysis, the approach of the learned Magistrate is not legal and proper, therefore, the order passed below Exhibit-45 by the learned Magistrate is set aside and revision is allowed, the said order is impugned in the present petition. 5. In this backdrop, heard learned counsel for the petitioners followed by the submissions of learned counsel for the first 5 Cri.Writ Petition No.1050 of 2010 respondent and learned APP. During the course of submissions across the bar, it is urged that the text of Section 125 of the Code of Criminal Procedure mandates for speedy remedy of maintenance to the neglected spouses and also to the children and such aggrieved person can approach the Court of Magistrate for maintenance. It is also urged that the provisions of Section 125 of the Cr.P.C further mandate that the legitimate as well as illegitimate children are entitled for maintenance from their father, provided that the paternity is established. It is further urged that the present petitioner No.1 has come with a specific case that after she obtained divorce from her first husband, she married with present respondent No.1 in the month of May 2001 and out of the relations with the first respondent, petitioner No.2 is born. Learned counsel for the petitioners has further drawn my attention towards cross examination of the present respondent No.1, particularly the last part of the cross examination which is material, “there are no physical relations between him and the first petitioner. I am ready to face the DNA test to decide the paternity of the petitioner No.2, if petitioner No.1 is ready to bear the expenses of the DNA test.” From these 2 lines in the cross examination, it is clear that the present respondent No.1 had taken a stand before the Lower Court that there were no physical relations between him and the first petitioner, hence no question about paternity of petitioner No.2 arises. Secondly, he has categorically consented to face the DNA test, but on the condition that the expenses be borne by petitioner No.1. Considering this aspect, it cannot be said that the present respondent No.1 was compelled to 6 Cri.Writ Petition No.1050 of 2010 face the DNA test as observed by the learned Additional Sessions Judge in the impugned order. In the premise, it is urged that considering the developed modern technology, it is useful to take the recourse by way of scientific means to decide the paternity of petitioner No.2. 6. Per contra, learned counsel for respondent has urged that criminal revision was filed by the first husband of the present petitioner No.1, which was allowed, so also application filed by the ex- husband of the present petition No.1 u/s. 127 of The Cr.P.C. for cancellation of the maintenance order passed in favour of the first petitioner, was allowed in the year 2006, after the alleged marriage between the petitioner No.1 and the respondent No.1. By pointing out these documents, it is urged that there is no marital relation between petitioner No.1 and the first respondent herein, as asserted by the first petitioner. 7. Already it is made clear that the provisions of Section 125 of The Cr.P.C. are two-fold provision, first towards the maintenance of the wife and second towards the maintenance of legitimate and illegitimate children. It is urged on behalf of the first respondent that even after the alleged marriage claimed by the present petitioner No.1 with the first respondent, some litigation was going on in between her ex-husband and present petitioner No.1. It is further urged the relations between the first petitioner and the first respondent are not sufficient to establish that she is legally wedded wife of the first 7 Cri.Writ Petition No.1050 of 2010 respondent so also it would not be established that as to who is the father of petitioner No.2 8. At this juncture, it may be useful to refer the observations of the Apex Court in the matter of Sharda versus Dharmpal, AIR 2003 Supreme Court 3450, wherein it is observed that, 38. Gautam Kundu Versus State of West Bengal and another (1993) 3 SCC 418, this Court while dealing with a question about the paternity of a child noticed the provisions of Section 112 of The Evidence Act and held that the presumption arising thereunder can only be displaced by a strong preponderance of evidence and not by a mere balance of probabilities. 39. Gautam Kundu (supra) is, therefore, not an authority for the proposition that under no circumstances the Court can direct that blood tests be conducted. It having regard to the future of the child, has, of course, sounded a note of caution as regard mechanical passing of such order. In some other jurisdictions, it has been held that such directions should ordinarily be made if it is in the interest of the child. 80. The matter may be considered from another angle. In all such matrimonial cases where divorce is sought, say on the ground of impotency, schizophrenia......etc. Normally without there being medical 8 Cri.Writ Petition No.1050 of 2010 examination, it would be difficult to arrive at a conclusion as to whether the allegation made by his spouse against the other spouse seeking divorce on such a ground, is correct or not. In order to substantiate such allegation, the petitioner would always insist on medical examination. If respondent avoids such medical examination on the ground that it violates his/her right to privacy or for a matter right to personal liberty as enshrined under Article 21 of the Constitution of India, then it may in most of such cases become impossible to arrive at a conclusion. It may render the very grounds on which divorce is permissible nugatory. Therefore, when there is no right to privacy specifically conferred by Article 21 of The Constitution of India and with the extensive interpretation of the phrase “personal liberty” this right has been read into Article 21, it can not be treated as absolute right. What is emphasized is that some limitations on this right have to be imposed and particularly where two competing interests clash. In matters of aforesaid nature where the legislature has conferred a right upon his spouse to seek divorce on such grounds, it would be the right of that spouse which comes in conflict with the so-called right to privacy of the respondent. Thus the Court has to reconcile these competing interests by balancing the interests involved. 81. If for arriving at the satisfaction of the Court and to protect the right of a party to the list who may 9 Cri.Writ Petition No.1050 of 2010 otherwise be found to be incapable of protecting his own interest, the Court passes an appropriate order, the question of such action being violative of Article 21 of the Constitution of India would not arise. The Court having regard to Article 21 of the Constitution of India must also see to it that the right of a person to defend himself must be adequately protected. 82. It is, however, axiomatic that a Court shall not order a roving inquiry. It must have sufficient materials before it to enable it to exercise its discretion. Exercise of such discretion would be subjected to the supervisory jurisdiction of the High Court in terms of S. 115 of The Code of Civil Procedure and/or Article 227 of the Constitution of India. Abuse of the discretionary power at the hands of a Court is not expected. The Court must arrive at a finding that the applicant has established a strong prima facie case before passing such an order. 83. If despite an order passed by the Court, a person refused to submit himself to such medical examination, a strong case for drawing an adverse inference would be made out. Section 114 of the Indian Evidence Act also enables a Court to draw an adverse inference if the party does not produce the relevant evidences in his power and possession. 84. So viewed, the implicit power of a Court to direct medical examination of the party to a matrimonial litigation 10 Cri.Writ Petition No.1050 of 2010 in a case of this nature cannot be held to be violative of one’s right of privacy. After going through the observations referred above, it is clear that the earlier view taken in the matter of Gautam Kundu versus State of West Bangal is not squarely applicable in all the cases, but required to be considered as per the facts of the individual case. It is further observed by the Apex Court in para no.81 in the judgment of Sharda (supra) that while deciding the petitions under Article 227 of The Constitution of India, and using the discretion, it is for the concerned Court to consider that what is the welfare of the child. 9. Bearing in mind the observations of the Apex Court in the matter of Sharda, as stated above, in the petition in hand, the question is only about the welfare of the child i.e. the 2nd petitioner, and it depends upon the result of the DNA test as to whether he will get the name of his father and consequently the maintenance. In the modern society, one may get the fame, but it is though very difficult yet essential to get the father’s name, which can decide his status in the society. Here the question is about the paramount consideration of the welfare of the child and to decide the status of the 2nd petitioner and as the consent is given for DNA test by the present respondent No.1 in his cross examination before the Lower Court, it cannot be said that it would amount to compel him to face the D.N.A. Test. This is the only hurdle in between the welfare of the minor child, and to remove it, it is necessary to set aside the order 11 Cri.Writ Petition No.1050 of 2010 impugned. 10. In the result, the petition succeeds. The order passed by the Additional Sessions Judge, Ahmednagar in Criminal Revision No. 198/2009, is hereby quashed and set aside and the order passed below Exh.45 by the learned J.M.F.C. Shrigonda is restored. 11. Rule is thus made absolute as indicated above with no order as to costs. 12. Parties are hereby directed to appear before the learned J.M.F.C. Shrigonda on 08/04/2011, if already date is not scheduled by the Lower Court. Learned counsel for the respective parties undertake that they would intimate this order to their respective clients. Parties to act on the authenticated copy of this judgment. (A.V.POTDAR, J.) khs/APRIL 2011/cri.w.p.1050-10