Case BriefsHigh Courts

Karnataka High Court:  A Division Bench of G I Narendar and M I Arun JJ. allowed the appeal and set aside the order of acquittal.

The facts of the case are such that complainant filed a complaint that his daughter/victim and the accused Santhosh who were both working in a coffee estate fell in love with each other. The accused made his daughter believe that he would marry her and when no one was there in the house, he came and had forcible sexual intercourse with his daughter and that from past 20 days he has gone away to his native without telling anybody. Presently, his daughter Preethi is seven months pregnant and accordingly, he has sought for initiating criminal proceedings against the accused Santhosh. The instant criminal appeal was filed under Section 378(1) and (3) Criminal Procedure Code i.e. Cr. PC praying to grant leave to filed an appeal against the judgment and order of acquittal dated 01-02-2020 passed by Additional Sessions and Special Judge Chikkamagaluru acquitting the respondent accused for the offence punishable under Section 376 (2) (n) Penal Code, 1860 i.e. IPC and Section 5 (j) (ii) and of Prevention of Children from Sexual Offences Act, 2012 i.e. POCSO Act.

The investigation was conducted and statement of the victim was taken on record. The Trial Court acquitted the accused as he found that all the material witnesses turned hostile and thus did not permit further examination of the witnesses.

The main issue to be dealt in the instant matter is whether the trial Court has erred in not directing conduct of DNA test of the child and the accused, whether it erred in not permitting the prosecution to examine other witnesses.

Counsel appearing for the accused submitted that presently, the accused and the victim are married and are leading a happy married life. Counsel for the victim submitted that pursuant to the said acquittal, the accused has abandoned her and the child and is untraceable.

The Court after perusing all the documents placed on record and production of witnesses observed that the guilt of the accused can be established only after examination of all the witnesses as desired by the prosecution. It is a specific case of the prosecution that it has necessary evidence to prove the guilt of the accused and it is desirous of making necessary application to have DNA test conducted and that the material witnesses have turned hostile only on the false promise of the accused.

The Court thus held “trial Court clearly erred in not permitting the prosecution to lead necessary evidence to prove the guilt of the accused.”

[State of Karnataka v. Santhosh, Criminal Appeal No. 414 of 2021, decided on 03-09-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances:

For Appellants: Mr. Vijaya Kumar Magaje and Ms. Rashmi Jadhav

For Respondents: Mr. N R Ravikumar

Case BriefsSupreme Court

Supreme Court: The bench of Justice R. Subash Reddy and Hrishikesh Roy*, JJ has held that in a declaratory suit, where ownership over coparcenary property is claimed, the plaintiff cannot be subjected to the DNA test against his wishes.

“When the plaintiff is unwilling to subject himself to the DNA test, forcing him to undergo one would impinge on his personal liberty and his right to privacy.”

The Court explained that DNA is unique to an individual (barring twins) and can be used to identify a person’s identity, trace familial linkages or even reveal sensitive health information. The Court should therefore examine the proportionality of the legitimate aims being pursued, i.e whether the same are not arbitrary or discriminatory, whether they may have an adverse impact on the person and that they justify the encroachment upon the privacy and personal autonomy of the person, being subjected to the DNA Test.

The Court was deciding the case where, in a declaratory suit for ownership over coparcenary property, the plaintiff had already adduced ‘enough’ documentary evidence to prove relationship between the parties. The Court noticed that in such cases, the Court’s decision should be rendered only after balancing the interests of the parties, i.e, the quest for truth, and the social and cultural implications involved therein.

“The possibility of stigmatizing a person as a bastard, the ignominy that attaches to an adult who, in the mature years of his life is shown to be not the biological son of his parents may not only be a heavy cross to bear but would also intrude upon his right of privacy.”

The Court held that in such kind of litigation where the interest will have to be balanced and the test of eminent need is not satisfied our considered opinion is that the protection of the right to privacy of the Plaintiff should get precedence.

It was, hence, held that the respondent cannot compel the plaintiff to adduce further evidence in support of the defendants’ case. In any case, it is the burden on a litigating party to prove his case adducing evidence in support of his plea and the court should not compel the party to prove his case in the manner, suggested by the contesting party.

Important Rulings

Banarsi Dass v. Teeku Dutta, (2005) 4 SCC 449

DNA test is not to be directed as a matter of routine but only in deserving cases. The presumption of legitimacy is this, that a child born of a married woman is deemed to be legitimate, it throws on the person who is interested in making out the illegitimacy, the whole burden of proving it. The law presumes both that a marriage ceremony is valid, and that every person is legitimate. Marriage or filiation (parentage) may be presumed, the law in general presuming against vice and immorality.

Bhabani Prasad Jena v. Convenor Secretary, Orissa State Commission for Women, (2010) 8 SCC 633

The discretion of the court must be exercised after balancing the interests of the parties and whether a DNA Test is needed for a just decision in the matter and such a direction satisfies the test of “eminent need”.

Dipanwita Roy v. Ronobroto Roy, (2015) 1 SCC 365

In the said case the husband alleged infidelity against his wife and questioned the fatherhood of the child born to his wife. In those circumstances, it was held that when the wife had denied the charge of infidelity, the Court opined that but for the DNA test, it would be impossible for the husband to establish the assertion made in the pleadings. In these facts, the decision of the High Court to order for DNA testing was approved by the Supreme Court.

[Ashok Kumar v. Raj Gupta, 2021 SCC OnLine SC 848, decided on 01.10.2021]

___________________________________________________________________________________

Counsels:

For appellant-plaintiff: Advocate Sunieta Ojha

For respondent – defendants: Senior Advocate Rameshwar Singh Malik


*Judgment by: Justice Hrishikesh Roy

Know Thy Judge | Justice Hrishikesh Roy

Case BriefsHigh Courts

Rajasthan High Court: Sanjeev Prakash Sharma, J. dismissed a petition filed by a man who assailed the lower court’s order rejecting an application for conducting a DNA test of his wife’s son, holding that the petition was devoid of merits.

Petitioner herein had filed an application before the learned Civil Judge praying for conducting a DNA test of a son born to his wife on the ground that his wife (respondent herein) was pregnant prior to getting married and therefore, the child born was not his child. He pleaded that the sonography examination of his wife during pregnancy reported that she was pregnant for 35 weeks and 06 days. His application was rejected holding that as the petitioner was living as the husband with the respondent during the period of pregnancy, and their marriage was still subsisting, the child borne from her would be presumed to be the petitioner’s son in terms of Section 112 of the Evidence Act, 1872. Aggrieved by the said order, instant petition was filed.

Petitioner’s counsel, Rajneesh Gupta, relied on the judgment passed by Coordinate Bench of the Rajasthan High Court, in Dalip Singh v. Ramesh, 2017 SCC OnLine Raj 2720, whereby it was held, “If the factum or presumption of paternity is disputed by someone, more particularly by the alleged father, it is difficult nay impossible for the party alleging such paternity to prove it without any scientific investigation.” The respondent contended that the application contained false averments. She asserted that the pregnancy and birth of her son were on account of marriage and relationship with the petitioner. There was no report from the hospital where she had been undertaking her treatment and the said report obtained was fictitious.

The Court relied on the judgments in Narayan Dutt Tiwari v. Rohit Shekhar, (2012) 12 SCC 554, and Goutam Kundu v. State of W.B, (1993) 3 SCC 418, and concluded that the reasoning adopted by the trial court for rejecting the application was incorrect. Merely because of presumption to be drawn under Section 112 of the Evidence Act, an application for seeking a DNA test could not be ousted.

However, deciding on the merits of the case, the Court observed, “it would not be appropriate to allow a DNA test to be conducted at the stage merely on the basis of the bland statement of the husband making allegations without appropriate legal evidence on record.”  It further held that the petitioner had to establish beyond reasonable doubt about his non-access to his wife during the entire period. Reliance was also placed on the recent judgment of this court in Mahesh Chand Sharma v. State, SBCW Pet. No. 2067 of 1999 (decided on 07-03-2019), where the Court observed, “In the circumstances, an order of getting DNA test of a child goes contrary to the basic fundamental right of the said individual child.”

The Court specified that in any case where such application for conducting DNA test of a minor is filed, it would be first examined, “(a) whether there is an imminent need to conduct such DNA test; (b) Whether such test would result in harming the status of the minor in any form; (c) such report is not to be made public.”

In the light of the above, the application moved by the petitioner was rejected, though on the different ground; and the writ petition was dismissed.[Mahendra v. Mamta, 2019 SCC OnLine Raj 584, decided on 23-05-2019]

Case BriefsHigh Courts

Delhi High Court: A Bench of G.S. Sistani and Jyoti Singh, JJ. dismissed an appeal filed against the order of the family court whereby the appellant’s application demanding a DNA test of the child born to her wife was rejected.

In his pleadings, the husband had submitted that the wife was not living with him at the relevant time and therefore he could not be the father of the child born to her. This fact was denied by the wife in her written statement. Pertinently, the husband did not lead any evidence to substantiate his pleading that the wife was not in the matrimonial home at the relevant time. Consequently, his demand for conducting a DNA test of the child to ascertain the paternity was rejected.

The High Court did not find any infirmity in the family court’s order. Reference was made to Section 112 of the Evidence Act which says that birth during marriage to be a conclusive proof of legitimacy unless it can be shown that the parties had no access to each-other at the time when the child could have been begotten. But as noted above, the husband did not lead any evidence to substantiate his pleading. The High Court observed: An application seeking DNA test of the child in our view has very strong repercussion on the child and such an order for conducting a DNA test should be passed in very rare cases where very strong reasons are set out and in extreme circumstances when the matter cannot be resolved by leading evidence in the matter.” In such view of the matter, the appeal was dismissed. [CKP v. MP, 2019 SCC OnLine Del 8077, dated 02-04-2019]

Case BriefsForeign Courts

Supreme Court of Pakistan: The Divison Bench of Mushir Alam and Qazi Faez Isa, JJ. allowed a petition seeking to set aside lower Court’s direction for deoxyribonucleic acid (DNA) test of a lady.

Respondent herein had filed a suit against the petitioner alleging that she was adopted by his father, late Abdul Qayum and brought up as his own daughter. However, the fact of adoption was concealed from her. In his suit, respondent sought declarations that Laila was not the real daughter of Abdul Qayum and, had no right to his legacy. Further, he filed an application seeking a DNA test to be conducted to determine whether Laila is the daughter of Abdul Qayum. The application did not, as per procedural requirement, cite any provision of law whereunder it was submitted; but the same was allowed. Aggrieved thereby, the instant petition was filed.

Petitioner’s counsel challenged respondent’s locus standi to question the petitioner’s paternity and contended that the suit filed by him was not maintainable under Sections 39 and 42 of the Specific Relief Act, 1877. He also referred to Article 128 of the Qanun-e Shahadat Order, 1984 according to which only a putative father may challenge the paternity of a child.

The Court opined that a declaration in suit can only be made in favour of a person who is entitled to any legal character or right, as to any property, which another is denying. In the instant case, petitioner had neither denied respondent’s legal character nor his right to any property. Reliance in this regard was placed on Abdur Rahman Mobashir v. Amir Ali Shah, PLD 1978 Lahore 113.

Further, Article 128 does not permit a putative brother, viz., respondent herein, to challenge his sister’s paternity. Judgment in Salman Akram Raja v. Government of Punjab, 2013 SCMR 203 was also relied on to hold that a free lady cannot be compelled to give a sample for DNA testing as it would violate her liberty, dignity and privacy guaranteed under Article 14 of the Constitution of Islamic Republic of Pakistan.

In view of the above, the impugned order was set aside. [Laila Qayyum v. Fawad Qayum, 2019 SCC OnLine Pak SC 2, Order dated 18-02-2019]