IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. M M O No. 66 of 2007. Date of Decision: 22. 8. 2008 _______________________________________________________ Yadav Nand ….Petitioner Versus Smt.Asha Rani & another … Respondents Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting? Yes.. For the Petitioner : Mr. Vijay Verma Advocate. For the respondents : Mr. Ramesh Thakur, Advocate Surinder Singh, J. (Oral) By means of the present petition, preferred under Section 482 of the Code of Criminal Procedure read with Article 227 of the Constitution of India, the petitioner-husband has assailed the order dated 30.6.2007 passed by the learned Sessions Judge, Kullu in Revision Petition No.28 of 2005 whereby the revision petition, filed by the petitioner herein, against the order of maintenance dated 24.9.2005 passed by the learned Chief Judicial Magistrate, Kullu, was dismissed. The facts of the case, which have given rise to this petition, can be summarized as follows: (a) the respondent-wife alleged her marriage with the petitioner having been solemnized - 2 - on 19.5.1994, as per the Hindu rites and ceremonies. (b) during this wedlock respondent-wife gave birth to a female child named Champa (respondent No.2); (c) Petitioner-husband is a T-mate in the Electricity Department, posted at Kullu; (d) the respondent alleged that her husband expected a male issue but after giving birth a female child in March, 1995, he became indifferent and started maltreating her; (e) It was also alleged that her husband wanted a piece of land from her father, at Kullu to construct the house and start small scale industry but when the matter did not materialize, she along with her child was turned out finally on 24.4.1996 after giving beatings to her and ultimately she took refuse into the house of her parents. (f) the petitioner-husband filed a petition, under section 9 of the Hindu Marriage Act Ex.PW1/A before the learned Senior Sub Judge, Mandi, duly supported by the affidavit Ex.PW1/B for restitution of conjugal rights. He had admitted therein that both the parties remained as husband and wife after their - 3 - marriage and respondent gave birth to a female child and she withdrew from his company in September, 1997. On 1.5.1998 he withdrew the petition vide his statement Ex.PW1/C. (g) The respondent-wife alleged neglect and refusal thus sought maintenance for herself and the child. In his reply, the petitioner-husband denied the relationship of wife and husband and he also denied the paternity of the minor child. He averred that he never married the respondent at any point of time and he was also not employed in the H.P.S.E.B Department at Kullu. He did not make any request for transfer of the land, as alleged. According to him, the respondent-wife had concocted a false story. He even denied his earning - salary to the tune of Rs.7,000/- per month. Though he admitted that a petition, under section 9 of the Hindu Marriage Act, was preferred by him in the court of learned Senior Sub Judge, Mandi, but according to him, his counsel had filed a petition against his advise which was later on withdrawn. Both the parties led their evidence. During the course of trial, the respondent moved an application u/s 311 Cr.P.C. for DNA test of the child which was dismissed and he unsuccessfully assailed it in Cr. Revision No. 39/2004, before - 4 - the learned Sessions Judge, which was further challenged by him in Cr.M.M.O.No.11 of 2005, which was finally disposed of by the then Chief Justice, by passing the following order: “After arguing for a while, learned counsel seeks leave of this court to withdraw the petition with liberty to urge in the appeal that the petitioner may file before the appellate court against the order passed under section 125 Code of Criminal Procedure by the Magistrate (if such an order is passed against the petitioner) all the grounds available to the petitioner under the law, including the ground that the learned Magistrate as well as the learned Sessions Judge had wrongly rejected the petitioner’s application for DNA test. The petition is dismissed as withdrawn. Aforesaid liberty prayed for is allowed.” The petitioner filed the written arguments before the learned trial court, under his signatures through counsel. In its third para, he absolutely misstated the facts and misquoted the above order as under: “………………..the respondent gave an application for the D.N.A. test and the said application was allowed by Hon’ble High Court in Cr.M.M.No.11 of 2005 and Cr.M.P.No.89 of 2005. The - 5 - Hon’ble Chief Justice High Court held that the application for D. N. A. test which has been moved by the respondent in the learned lower court was wrongly rejected by the learned lower court i.e. learned Chief Judicial Magistrate and learned District Sessions Judge, Kullu, H.P.” Thus, an attempt was also made by the petitioner to mislead the court. His conduct was condemnable and contemptuous. However, the learned trial court on merits found that there was an ample evidence that a relationship of husband and wife, interse the parties exists and from this wedlock a female child was born and it was held that the petitioner-husband was having sufficient means to maintain the respondents, as such the learned trial court awarded an amount of Rs.500/- each of the respondents, from the date of institution of the petition i.e. 13.3.2002. The impugned order was challenged before the learned Sessions Judge in a revision petition, which was dismissed on 30.6.2007. It is pertinent to note that the petitioner-husband did not take the ground in his revision petition, in terms of the order passed by this court in Cr.M.M.O.No.11 quoted above, that his application, for DNA test, was wrongly rejected by the - 6 - learned Chief Judicial Magistrate. Now, against the concurrent findings of both the courts below, the instant petition has been filed by the petitioner on the ground that both the courts below have misread and misappreciated the law, which has caused prejudice to the petitioner and his application, for DNA test was wrongly dismissed by the learned trial court vide his order dated 3.11.2004 and also by the learned Sessions Judge vide his order dated 9.2.2005 in Cr.Revision No.39/2004 (Annexure PG). The learned Sessions Judge did not appreciate the effect of DNA test and he wrongly declined his request. Thus, sought indulgence of this court. Mr. Vijay Verma, learned counsel for the petitioner was on a tight corner when he was confronted with the order passed by this court in Cr.M.M. No.11 of 2005, as to why the ground regarding the rejection of his application for DNA test was not taken before the learned District Judge in revision when liberty was sought to agitate it if the petition for maintenance is decided against him. However, he argued that the petitioner never married respondent No.1 at any point of time nor respondent No.2 is his daughter. The trial court wrongly came to the conclusion that there was relationship of husband and wife and respondent No.2 is the minor daughter of the petitioner. He also argued that the petition, for restitution of conjugal rights, was moved by the counsel, under a wrong advise which was later on withdrawn. - 7 - Contra, Shri Ramesh Thakur, learned counsel for the respondent has supported the impugned orders of the courts below. According to him, there are concurrent findings of fact, which cannot be set aside in this petition and further argued that the conduct of the petitioner is quite deplorable as is evident from the record that he had not only denied the relationship inter-se the parties, as husband and wife whereas he had himself admitted all these facts in the petition, preferred under section 9 of the Hindu Marriage Act, but also he tried to dodge the court by misstating the facts before the learned trial court, therefore, no indulgence can be shown by this Court, as the petitioner lacks probity and bonafides. In short he supported the impugned orders of both the courts below. I have thoughtfully considered the rival contentions of the learned counsel for the parties and have carefully gone through the record. It is an admitted case of the parties that the petitioner-husband filed an application, under section 9 of the Hindu Marriage Act, against respondent No.1 (wife), for restitution of conjugal rights, which was registered as H.M.Petition No.26 of 1997 titled as Yadav Nandan vs Asha Devi alias Ishani Kumari. Record was produced before the trial court by PW1 Budh Prakash, record-keeper of General Record Room. Copy of the petition has been proved on record as Ex.PW1/A. In para No.1 it was clearly mentioned therein - 8 - that the petitioner had married respondent No.1 on 19th May,1994, according to Hindu rites and ceremonies, as prevalent in the area. In support of this averment, an affidavit Ex.PW1/ was sworn and was attached with the application. In the title of the petition, he has given the address of respondent No.1 as follows: “Asha Devi alias Ishani Kumari, (w / o Yadav Nandan) d/o Sh. Lal Chand, R / o village Muthal, P. O. Khadihar, Kothi Maharaja, Teh. & Distt. Kullu (H.P.)” He has verified the contents of the said petition to be correct under his signatures. He averred in the petition that both the parties remained as husband and wife and from this wedlock one daughter, namely, Champa Devi has been born, who was aged about three years at the time of filing the petition. He further stated that the respondent wife lived nicely in the company of the petitioner for about 4 months, thereafter she finally withdrew from the company of the petitioner in the month of September, 1997 and prayed for decree for restitution of conjugal rights. Respondent-wife had also made the similar statement about her marriage and delivery of the child from the lions of petitioner-husband. In fact, no strict proof is required to prove the marriage in the proceedings, under section 125 Cr.P.C. but in the instant case, admission of the petitioner is enough to prove the marriage even in the cross-examination of the - 9 - respondent-wife, the petitioner-husband did not dispute that respondent No.1 was not his wife and respondent No.2 his daughter. The petitioner-husband also tried to hood-wink the court by raising a false story that he was infact married to Ishani Kumari, who did not live with him and he moved a petition, under section 9 of the Hindu Marriage Act, against her for restitution of conjugal rights. But in the cross- examination he has admitted that Ishani Kumari was called as Asha Devi then again stated that the respondent-wife is neither Asha Devi nor Ishani Kumari. Thus, the petitioner because of his conduct has also exhibited himself to be an utmost incredible person. RW2 Nand Lal has stated that one lady namely Ishsani was wife of the petitioner. In cross-examination, he could not tell the name of the parents of the petitioner- husband or name of any of his family member. He also did not know since when the petitioner-husband was in service. Therefore, his statement was of no avail to the husband. It is apparent that the petitioner-husband when caught in his own trap, concocted an altogether new story but without knowing that the noose was further getting tightened around his neck making difficult for him to come out from his own web. Since there is satiable evidence on record to show that respondent No.1 was legally wedded wife of petitioner-husband, the presumption arises under section 112 - 10 - of the Evidence Act that respondent No.2 is a legitimate child of the petitioner-husband, which he could have dislodged only by showing non-access to which he failed to prove. As far as request for DNA test is concerned, the learned trial court has rightly rejected the request of the petitioner as it was not necessary and essential in view of his own admissions as discussed above. In Kamti versus Poshi Ram AIR 2001 SC 2226 the Supreme Court has held: “Section 112 of the Evidence Act raises a conclusive presumption about the paternity of the child born during the subsistence of a valid marriage, itself provides an outlet to the party who wants to escape from the rigour of that conclusiveness. The said outlet is, if it can be shown that the parties had no access to each other at the time when the child could have been begotten, the presumption could be rebutted. In other words, the party who wants to dislodge the conclusiveness has the burden to show a negative, not merely that he did not have the opportunity to approach his wife but that she too did not have the opportunity of approaching him during the relevant time. “The result of a genuine DNA test is said to be scientifically accurate. But even that is not enough to escape from the conclusive ness of Section 112 of the Act e.g. if a husband and wife were living together - 11 - 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 un-rebuttable. This may look had 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 his spouse were living together during the time of occupation.” Therefore, in view of above discussion the learned courts below have rightly held respondent No.1 as the wife of the petitioner herein and the petitioner is bound to maintain the respondents. The application Cr.M.P.No.331 of 2007 preferred in this court for DNA test is also not maintainable and is dismissed. I do not find any error of jurisdiction or abuse of process or any discrepancy in the maintenance order, passed by the learned trial court and its affirmation in revision by the learned Sessions Judge. This petition sans merit and is accordingly dismissed. August 22, 2008 (Surinder Singh),J (D)