Delhi High Court: A petition was filed under Section 482 of the Criminal Procedure Code (‘CrPC’) by the petitioner seeking to set aside the impugned judgment dated 20-03-2019 passed by the District and Sessions Judge, South-East District, Saket, Delhi in criminal appeal vide which the Sessions Court had upheld judgment passed by Metropolitan Magistrate, Saket, Delhi. Swarana Kanta Sharma, J., upholds the impugned order and held that in face of DNA report existing on record, respondent 1 cannot be held liable to make payment of maintenance to the child, even though the child was born during the subsistence of marriage between the petitioner and respondent 1.
The petitioner used to work as domestic help/work at the house of respondents for three years i.e., from February 2013 to February 2016. It is alleged that during this period, respondent 1 had made sexual advances towards the petitioner and had sexual intercourse on a regular basis with the petitioner on the pretext of a promise to marry her. As alleged, respondent 1 had also compelled the petitioner twice to have sexual intercourse with two of his friends and when the petitioner had refused to do so, respondent 1 had threatened not to marry her in case she did not maintain physical relations with his two friends and, due to such threats, she had performed involuntary sexual intercourse with the said two friends of respondent 1 on two occasions in the aforesaid period of three years.
On 02-03-2016, marriage was solemnized between the petitioner and respondent 1 and on 01-04-2016, a girl child was born to the petitioner, i.e. within less than one month of solemnisation of marriage between the parties. On 14-07-2016, a petition under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (‘DV Act’) was filed by the petitioner against the respondents before ACMM, Saket Court, New Delhi along with affidavit of income as well as an application for grant of interim maintenance. On 19-01-2017, reply to the petition was filed by the respondents alongwith an application for conducting a DNA test to determine the paternity of the child which was thereby allowed. However, the Magistrate rejected the claim of maintenance on the ground of concealment of income. An appeal was preferred before the Sessions Court challenging the said order which was dismissed. Thus, the orders of the Magistrate as well as the Sessions Court dated 01-12-2017 and 20-03-2019 were respectively sought to be quashed.
On the submission by the petitioner that protection of presumption under Section 112 of the Evidence Act, 1872 will be available to the child born during subsistence of a lawful marriage, the Court noted that interpreting the context and mandate of Section 112 of Evidence Act, establishing the existence of a valid marriage between the child’s mother and another man is sufficient for the Court to accept this as conclusive proof of the child’s legitimacy, with regard to the person to whom his/ her mother is married. However, it is important to note that Section 112 of the Evidence Act itself provides a limited exception to this presumption, i.e., establishing non-access. Thus, careful examination of Section 112 and Section 4 of the Indian Evidence Act reveals that only the proof of non-access between the parties is permissible to challenge the otherwise irrebuttable presumption of Section 112.
On the aspect of whether DNA test can be conducted to rebut presumption under Section 112 of Evidence Act, the Court noted that the responsibility of demonstrating non-access that concerned parties had no access to each other during the time the child could have begotten, falls upon the party making such an allegation. The law stipulates that meeting this burden goes beyond a mere preponderance of probabilities; instead, the evidence presented to establish non-access must be robust, unambiguous, convincing, and definitive to rebut a presumption of conclusive proof. Thus, a plausible yet insufficient explanation will not suffice; instead, the evidence must meet the rigorous standard of “proved” as articulated under Section 3 of the Act.
The Court observed that the DNA test was conducted by a judicial order which has not been challenged ever till date and has attained finality. The DNA test report in the present case has concluded that respondent 1 is not the biological father of the child of petitioner. Therefore, the protection under Section 112 of the Act would have been available to the petitioner only in case the DNA test had not been conducted since the intent of the legislation behind the enactment of Section 112 of the Evidence Act is to save every child from being born “illegitimate” and to give him the protection of legitimacy by invoking presumption under the section 112 in favour of the legitimacy of the child born during subsistence of a valid marriage.
The Court held that respondent 1 is not the biological father of the child of the petitioner and thus maintenance for child is refused. However, since the factum of marriage between the parties is not disputed though validity thereof is disputed, which is subject matter of adjudication before the concerned court of law, the Court held that the Trial Court erred is refusing maintenance to the petitioner at that stage and thus directed the matter to be remanded back for deciding afresh the quantum of maintenance to be paid to the petitioner.
[Nikhat Parveen v Rafiqui, 2023 SCC OnLine Del 6751, decided on 17-10-2023]
Advocates who appeared in this case :
Mohd. Azam Ansari, Mohd. Shahnawaz Alam and Mohd. Ashfaque Ansari, Advocates for petitioner
Mr. Anurag Pratap and Mr. Rishiraj, Advocates for respondents
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