* IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment pronounced on: April 16, 2014 + CS(OS) 113/2008 & I.A. No.5445/2010 MASTER MANOJ Through ..... Plaintiff Mr.J.S.Bakshi, Adv. with Ms.Sunita Tiwari, Adv. versus SH. BHUVNESH GUPTA @ BHANU & ORS ..... Defendants Through Mr.Puneet Mittal, Adv. with Mr.Nitin Sharma, Mr.Ankit Goel & Mr.Ankur Aggarwal, Advs. CORAM: HON'BLE MR.JUSTICE MANMOHAN SINGH MANMOHAN SINGH, J.
1. By this order, I shall dispose of IA No.5445/2010 filed by the plaintiff seeking directions from this court against the defendants calling upon them to provide the DNA test as per the prayers made in the application.
2. The plaintiff filed a suit for partition, possession, declaration, permanent and mandatory injunction against the defendants, claiming the position over the properties of deceased Shri Surender Gupta as being one of the legal heir of Late Shri Surender Gupta.
3. (i) Brief facts of the case are as under:The plaintiff is a minor child, therefore, the present suit was filed by his mother, natural guardian and next friend Ms. Rekha Aggarwal. It is alleged in the plaint that the plaintiff and defendants No.1 to 5 are the children of a common biological father, i.e. late Shri Surender Gupta. The defendants No.2 to 5 are the minor daughters of late Shri Surender Gupta. The defendant No.6 is the mother of Late Shri Surender Gupta and natural guardian and next friend of defendants No.2 to 5. The defendant No.7 is brother of late Shri Surender Gupta, claiming himself to be natural guardian of defendants No.2 to 5. (ii) Late Shri Surender Gupta expired on 31st May, 2003 leaving behind his legal heirs i.e. defendants No.1 to 6 and the plaintiff and properties both moveable and immoveable which are estimated to be worth several crores. The details of those immoveable properties and bank accounts are mentioned in the plaint. The defendants Nos.1 to 5 are born out of the wedlock of Late Shri Surender Gupta and Late Smt. Anju, however, after giving birth to last child, Smt. Anju expired within 10 days in a hospital, in the year of 1999. (iii) The mother of the plaintiff was an employee in the capacity of sales girl in the shop of Late Shri Surender Gupta in the name of M/s Gupta Telecom since 1998. The intimacy between Ms. Rekha Aggarwal and Late Shri Surender Gupta developed during the period from 1997 to 1999, which resulted into the birth of the plaintiff on 24 th April, 1999. In the year 2000, Late Shri Surender Gupta misbehaved with the mother of the plaintiff and in the heat of anger she got registered a FIR. However, later on the matter was pacified and Mr. Surender Gupta was discharged in the matter. (iv) The mother of the plaintiff also entered into a partnership agreement dated 10th March, 2000 with Late Shri Surender Gupta. However, Late Shri Surender Gupta did not fulfill all the terms and conditions of the partnership deed and thus, the mother of the plaintiff filed a suit for rendition of accounts. (v) The mother of the plaintiff also requested the defendant Nos.1 and 6 in the month of November 2003 about giving the shares of the plaintiff in the properties, however instead of giving any shares, the defendants have declined for the same and threatened to dispose of the properties. In December 2003, the defendants No.6 and 7 offered Rs.10,00,000/on telephone to the mother of the plaintiff for leaving the rights of the plaintiff and when she refused, they threatened the mother of the plaintiff on telephone that they will dispose of the properties of Late Shri Surender Gupta in meagre amount to their own person so that plaintiff may not get any share in the said properties.
4. It is alleged in the plaint that the plaintiff has legal right over the properties of Late Shri Surender Gupta. It is submitted that even though a child may be illegitimate, he has right over the property of his father as per the Schedule of the Hindu Succession Act, 1956 and is covered in the 1st class heirs of Late Shri Surender Gupta. As per schedule, the plaintiff is entitled for 1/7th share out of all the properties and the plaintiff is also entitled to other properties of Late Shri Surender Gupta which are not mentioned in the plaint if same are found in future or disclosed by the defendants who had refused to give the share of the plaintiff on flimsy pretexts despite knowing fully well that the plaintiff is the son of Late Shri Surender Gupta. The malafide intentions of the defendants are further apparent from the fact that they have admittedly sold/misappropriated most of the properties left behind by the Late Shri Surender Gupta and have concealed the details of many moveable and immoveable properties. The mother of plaintiff Smt. Rekha was married to one Mr. Rajesh Aggarwal but after having come to know about the birth of the plaintiff and her being implicated in a false criminal case, he left Delhi and is living elsewhere separately from the plaintiff and his wife Smt. Rekha.
5. As the defendants are in possession of all the properties, moveable and immoveable, left behind by Late Shri Surender Gupta and have so far not given any share to the plaintiff, they have compelled the plaintiff to file the above suit. Infact, the defendant No.7 who is the brother of Late Shri Surender Gupta has illegally retained and is misusing/misappropriating the properties and funds/reserves (amount lying in the bank, income from various business, fixed deposits etc.) and has throughout been misusing the funds co-owned by the plaintiff and defendants No.1 to 6. After the death of Late Shri Surender Gupta, defendant No.7 has during the pendency of the above suit, sold a number of properties bought by the Late Shri Surender Gupta. He has also misappropriated these amounts for his personal gain.
6. The defendants have filed their written statement denying all the allegations made in the suit wherein the defendants have taken the following defences: a) The mother of plaintiff namely Rekha Aggarwal was an employee in the capacity of the sales girl in the shop of Late Shri Surender Kumar Gupta in the name of Gupta Telecom at E-17, New Delhi, South Extension Part II since 1998 and was getting salary for that. It is submitted that Ms. Rekha Aggarwal is married to one Shri Rajesh Aggarwal and has got three surviving children out of the wedlock including the plaintiff. b) The defendants have stated that Ms. Rekha Aggarwal had lodged a false and fabricated FIR No.151/2000 at P.S. Defence Colony under Section 376/342/323 IPC against Shri Surinder Kumar Gupta on 29th February, 2000 and thereafter Ms. Aggarwal sworn an affidavit on 21st March, 2000 and filed the same in the court of Ms. Ina Malhotra ASJ, Delhi deposing to the effect that she has been working with the firm of Shri Surender Kumar Gupta at E-17, NDSE Part II, New Delhi for the past two years; that the allegations made in the FIR were made in the heat of the moment and were incorrect. It has been further deposed by Ms. Aggarwal that Shri Surender Kumar Gupta never committed any sex with her and had never raped her. On the basis of the said depositions, Mr. Surender Kumar Gupta was duly discharged in the said case from the court vide order dated 3rd February, 2001. c) As per the averments made in the plaint, the son was born on 24th April, 1999, however the affidavit which was sworn and filed before the court was dated 31st March, 2000 wherein she had deposed that Mr. Gupta never had any sex with her nor he had ever raped her. Thus, the question of the Late Mr. Gupta being the father of the child and claiming share in the estate of Mr. Gupta does not arise. d) The Defendants deny specifically that Late Sh. Gupta had any relation with Rekha Aggarwal except employee- employer relation and that the plaintiff is the legal heir of late Shri Gupta. The Defendants also deny that Late Shri Gupta entered into any partnership agreement with Ms. Aggarwal as alleged in the plaint.
7. The plaintiff has filed the replication wherein the plaintiff through his next friend, i.e. his mother stated that he does not dispute the existence of the affidavit dated 31st March, 2000, however the plaintiff disputed the affidavit by contending that the said affidavit was made by his mother. Ms.Rekha Aggarwal was under the undue influence of Mr. Gupta at the relevant time and due to her affection and attraction towards him and in order to save him from going to jail, such step of filing of the affidavit was taken by the mother of the plaintiff. The relevant paras 3 to 4 of the replication relating to the affidavit is reproduced as under:
“3-4 That the contents of paras No.3 and 4 of the brief facts of the written statement are wrong, false and fictitious, hence, the same are denied. It is denied that in the aforesaid case, police had filed a cancellation report and Ms. Rekha Aggarwal sworn an affidavit on 21.03.2000 and filed the same in the court of Ms. Ina Malhotra, ASJ, Delhi, deposing to the effect that she has been working with the firm of Shri Surender Kumar Gupta at E-17, NDSE Part-II, New Delhi for the past two years or that the allegations made in the FIR were made in the heat of moment and were incorrect, as alleged. It is further denied that she further categorically depose that Shri Surender Kumar Gupta had never committed any sex with her and had never raped her, as alleged. It is also denied that on the basis of the averments made in the affidavit, Shri Surender Kumar Gupta was duly discharged in the said case by the court of Ms. Ina Malhotra, ASJ, Delhi, vide order dated 3.02.2001, as alleged. It is submitted that the mother of the plaintiff was having affinity, interaction and attraction with the deceased Surender Kumar Gupta and never desired after the registration of FIR that the deceased may remain in jail, hence, to safeguard him she gave this affidavit to protect him. It is further submitted that the FIR was registered on 2.3.2000 by the Defence Colony Police Station and even as per the admitted contentions of the answering defendants, the mother of the plaintiff was working with late Shri Surender Kumar Gupta, then after registration of FIR he would not allow the mother of the plaintiff to carry out work with him. It is also submitted that late Shri Surender Kumar Gupta was having influence over the mother of the plaintiff and a partnership deed dated 10.03.2000 has the signatures of the witnesses namely Sh. Sanjeev Gupta and Mr. Ajay Gupta. Mr. Sanjeev Gupta is the real brother-in-law of late Shri Surender Kumar Gupta. It is submitted that the said affidavit has no relevance in the present scenario. It is further submitted that the offence under Section 376 IPC is non compoundable offence and any agreement/compromise which goes against law does not have any legal importance or contract in the eyes of law. It is also submitted that the said document/compromise which goes against law does not have any legal importance or contract in the eyes of law. It is also submitted that the said document/affidavit was executed by the mother of the plaintiff under the influence of late Shri Surender Kumar Gupta as she was in great affection with him and similarly late Shri Surender Kumar Gupta was also having affection towards the mother of the plaintiff thereby even after registration of FIR both continued their work uptil 20.5.2003. There are several documents pertaining to the years 2000, 20012002 etc. thereby it is apparent that the relationship between the mother of the plaintiff and late Shri Surender Kumar Gupta existed even after registration of the FIR.”
8. An application under Order 32 Rule 3 read with Section 151 CPC being I.A. No.733/2009 was filed by the defendant No.1 for appointment of legal guardian in respect of defendant’s Nos. 3, 4, 5, who are minors. It is submitted by the defendant no.1 that he has no interest adverse to that of minor defendants. By order dated 19th January 2009, the said application was allowed and the defendant No.1 was appointed as guardian ad-litem qua defendants’ No.3, 4 and 5.
9. Issues were framed by this court vide order dated 26th April, 2010.
10. The present application being I.A. No.5445/2010 under Section 151 of CPC has been filed on behalf of the plaintiff for direction to the defendants for providing DNA test. It is submitted by the plaintiff that the defendants have challenged the paternity of the plaintiff; however, the same can be checked through DNA test. The plaintiff relied on the judgment of this court in the case of Kanchan Bedi vs. Gurpreet Singh Bedi, 2003 Rajdhani Law Reporter 229 in which it was held that the court can issue direction for DNA test where paternity is disputed. Another application of the plaintiff being I.A No.5446/2010 under Order 11 Rule 2 and 14 read with Section 30 and 151 CPC has also been filed for direction to the defendants to give reply to the interrogatories and to produce the documents of ownership/title deeds. However, at the time of argument, learned counsel for the parties have requested the Court first to decide the pending IA No.5445/2010 because of the reason that the decision of the application would impact the other application and the main suit. As agreed, both parties have made their submissions only in IA No.5445/2010 which is pending for disposal for more than the last three years.
11. An application on behalf of the plaintiff under Section 151 CPC for grant of interim maintenance and litigation expenses was also filed. It is submitted by the plaintiff who is minor as well as his mother have no source of income whatsoever and are at present living at the mercy of others. It is submitted that at present the plaintiff is studying in Class VIII and is good in his studies. The natural mother and guardian of the plaintiff has been burdened with all the responsibilities towards the plaintiff which includes inter alia expenses towards education, books, clothes, uniforms, vocational interests, excursions, food, medicines, entertainment and several other unforeseen contingencies. Besides the amount required by the plaintiff for his sustenance and support, he also requires litigation expenses as this litigation has been thrust upon the plaintiff by the defendants and amounts to forced litigation upon him. The plaintiff cannot afford to meet this financial burden which is luxury litigation for the defendants. Rejoinder on behalf of the plaintiff to the application under Section 151 CPC for grant of interim maintenance and litigation expenses was filed.
12. In this backdrop of the facts, the plaintiff has filed the application seeking directions that the defendants be directed to undergo the DNA test and the reasons for the same are as under: a) The plaintiff as a child is well within his rights to know his paternity which has been challenged by the defendants and truth may be unveiled only when the defendants are directed to undergo the DNA test. b) The plaintiff has filed the suit for partition etc being a son and a legal heir of Late Shri Surender Gupta, as such the plaintiff has right in the properties left over by his father. The determination of the status of the plaintiff will also aid to the determination of the right of the plaintiff as a legal heir of Late Shri Surender Gupta.
13. The defendants have filed the reply disputing all the grounds raised in the application. When both the applications came up for hearing Mr. J.S. Bakshi, Advocate appeared on behalf of the plaintiff and Mr. Puneet Mittal Advocate appeared on behalf of the defendants and have made their submissions.
14. Mr. Bakshi, learned counsel appearing on behalf of the plaintiff has made his submissions which are summarized in the following manner: a) Learned counsel has argued that the plaintiff is a minor and is well within his right to know the status of the paternity and as such this court should exercise the parens patriae jurisdiction as vested in it, whereby this court should act in the benefit of the child which in the instant case is to find out the paternity of the plaintiff and the same can be done by way of directing the defendants to undergo the DNA test. b) It has been argued by the learned counsel for the plaintiff that it is mentioned in the plaint that the mother of the plaintiff was working with Late Mr. Gupta in the year 1997 – 1999 when the plaintiff was born and the allegations are not disputed by the defendant. It is the case of the plaintiff and the mother of the plaintiff that he is born out of the intimate relationship which his mother had with Late Mr. Gupta and the plaintiff seeks declaration of the status of biological son of Mr. Gupta in the suit and the status which has been denied by the defendants. It is argued that in such circumstances, there exists an eminent need to conduct the DNA tests of the defendant so that the truth may come out as the plaintiff has the right to know about his paternity. c) Learned counsel for the plaintiff has argued that the plaintiff has also filed the suit for partition on the ground that the plaintiff has 1/7 th share in the properties of the deceased Shri Gupta being the class one heir under the Hindu Succession Act. It is argued that the share of the plaintiff in the said properties is also dependent upon the enquiry that the plaintiff is the biological son of late Shri Gupta along with the other defendants No.2 to 6. Therefore, for this reason also, in the interest of the minor plaintiff, this court should direct the conducting of DNA test of the Defendants so that the suit filed by the plaintiff be taken to the logical conclusion. d) Learned counsel for the plaintiff relied upon various judgments of this court and Apex Court in order to fortify the submission that DNA test in the instant nature of case is the requirement and can be conveniently ordered by exercising parens patriae jurisdiction as the court acts in the welfare of the child which is paramount consideration before the court. The following is relied upon by the plaintiff in this regard: Narayan Dutt Tiwari v. Rohit Shekhar and Anr order dated 7th February, 2011 passed by the Division Bench of this Court in FAO(OS) No.44/2011.
15. Per contra, Mr. Puneet Mittal, learned counsel appearing on behalf of the defendants has made his submissions which can be outlined in the following manner: a) Mr. Mittal, learned counsel for the defendants has argued that DNA tests are ordered by the court not as a matter of ordinary course and wherever such prayers have been made in the application in order to conduct a roving enquiry, the court should not exercise such discretion of ordering Blood Test of the person. Learned counsel in order to lend strength to his submission relied upon the judgment of Goutam Kundu vs. State of West Bengal, (1993) 3 SCC418 It has been argued by Mr. Mittal that in the instant case too, the application has been made by the plaintiff through her guardian in order to conduct the roving enquiry due to following reasons: The mother of the plaintiff was merely working with late Shri Gupta as an employee. There is no allegation in the plaint that the mother of the plaintiff continued to stay along with late Shri Surender Gupta. The mother of the plaintiff avers in the plaint that the plaintiff was born in the year 1999 and in the year 2000 when the FIR was lodged by the plaintiff’s mother against Mr. Surender Gupta, it has been deposed that Shri Surender Gupta never had any sex with the mother of the plaintiff or raped her. The mother of the plaintiff remained silent during the life time of Shri Gupta despite allegedly having given birth to the plaintiff in the year 1999 till 2003 uptil the demise of Mr. Gupta. It is only with the ulterior motives now, the mother of the plaintiff is suing the defendants when she had no concern with late Mr. Surender Gupta and his properties and estate. As per Mr. Mittal, learned counsel for the defendants, all the facts clearly go on to show that the mother of the plaintiff has no case at all against the defendants especially in view of the deposition made in the affidavit before the court of Smt. Ina Malhotra by way of affidavit dated 31st March, 2000. In view of the same, the plaintiff’s or his mother’s attempt to seek directions compelling the defendants to conduct the DNA test is clearly a roving enquiry and should be deprecated by the court by rejection of the application. b) Secondly, Mr. Mittal argued that there exists a presumption as to the legitimacy of the child born out of the wedlock of the mother of the plaintiff Ms. Rekha Aggarwal and Mr. Rajesh Aggarwal under the provisions of the Section 112 of the Evidence Act. It has been argued that the said presumption of the legitimacy exists till the time there exists a strong evidence to dispel the said presumption on the records of the court which gives the court the compelling reasons to enquire about the paternity of the child. This has been explained by Mr. Mittal by reading over the judgment of the Supreme Court in the case of Shyam Lal v. Sanjeev Kumar, (2009) 12 SCC454and the other judgments on the subject passed by Apex Court and this court. It has been argued that in the instant case, there exists no such strong evidence to dislodge such presumption. The allegations of adultery in such cases are not per se enough to dislodge such presumption. On the contrary, as per Mr. Mittal, there exists a positive evidence in the form of deposition of Ms. Rekha Aggarwal given before the court that Mr. Surender Gupta never had any sex with her. In the existence of such contrary evidence, this court should not proceed to consider at this stage the discharge of the onus to dispel the presumption as to legitimacy solely on the basis of the allegation of the mother of the minor plaintiff. As per Mr. Mittal, this factor makes the present case sufficiently distinguishable from the other cases where such presumption as to legitimacy is dispelled by the positive evidence before the court which clearly warrants dismissal of the present application c) Mr. Mittal, learned counsel relied upon the following case laws in order to substantiate his submissions on the aspect of the existence of the presumption as to legitimacy and its consequential effect on the courts discretion to pass orders directing DNA test of the person: i) Goutam Kundu vs. State of West Bengal and Anr., (1993) 3 SCC418 ii) Shyam Lal Alias Kuldip vs. Sanjeev Kumar and Ors., (2009) 12 SCC454 iii) Banarsi Dass vs. Teeku Dutta and Anr., (2005) 4 SCC449 iv) Chowdegowda Alias Dorji (Dead) by LRs. And Ors. vs. C. Nagaraju and Ors., (1996) 5 SCC623 v) Ramkanya Bai vs. Bharatram, (2010) 1 SCC85vi) Smt. Dukhtar Jahan vs. Mohammed Farooq, (1987) 1 SCC624 vii) Kanti Devi (Smt.) and Anr. vs. Poshi Ram, (2001) 5 SCC311viii) S. Ajanama Bi Alias S. Hajaram Bibi and Anr. vs. S. Khurshid Begum and Ors., (1996) 8 SCC81 ix) Mahesh & Anr. vs. Madhu, 2007 (136) DLT678 After making the aforenoted submissions, Mr. Mittal concluded the arguments by urging that the application seeking direction to conduct DNA test may be dismissed.
16. I have gone through the pleading filed by the parties in the instant case along with the documents and also considered the application under Section 151 CPC filed by the plaintiff seeking direction against defendant to conduct DNA test in order to find paternity. I have also given my careful consideration to the submissions advanced by the learned counsel for the parties at the bar. I shall now proceed to discuss various aspects which fall for consideration for the purposes of deciding the present application.
17. First and foremost ground on the basis of which the plaintiff through his mother seeks directions from this court directing the defendants to conduct DNA test is that the plaintiff is the biological son of the Late Shri Surender Gupta who died in the year 2003. It is noteworthy to mention that the defendant dispute this fact and proceed to state that the plaintiff’s mother Rekha Aggarwal was married to one Mr. Rajesh Aggarwal and the plaintiff has got three surviving children. On this basis, the plaintiff through his mother states that the paternity of the plaintiff has come in to question warranting the conduct of DNA test of the defendants.
18. The said ground of challenge to the paternity and resulting directions by the court to conduct DNA testing has been examined by the courts time and again by providing elaborative pronouncements on the subject. The gist of the said pronouncements starting from Goutham Kundu (Supra) uptil Narayan Dutt Tiwari (supra) is that though Section 112 of the Evidence Act provides a presumption as to legitimacy of the child, the party disputing the parentage has to dislodge the said presumption in law which is equivalent to conclusive proof by bringing strong evidence on record suggesting that there was non access at the time of the conception of child leading it to illegitimacy. Be it noted that the onus lies on the person seeking to establish illegitimacy to show that there exists non access with that of the spouse raising doubts as to the parentage of child and thereby dispelling the presumption on the basis of the positive evidence. [See Goutam Kundu vs. State of West Bangal and Another, (supra)].
19. The said onus to dislodge the presumption is heavier than civil cases which is on balance of the probabilities but lesser than the criminal cases and has to be based on the strong preponderance of the evidence. [See Banarsi Dass vs. Teeku Dutta and Another, (2005) 4 SCC449.
20. On the basis of the said exposition of law as guiding tests for determining the necessity for conducting DNA test in case where the person disputes parentage of child, the courts after weighing prons and cons of the case and overall facts and circumstances in the case have proceeded to decide the cases relating to the parties divorce proceedings, parties where succession certificate is claimed, parties where there exists marriage by way of custom, parties where succession is claimed and dispute arise relating to some children being illegitimate etc and proceeded to decide them on case to case basis after examining the need to conduct DNA test in the given case. The courts have always adopted a judicious approach after weighing the material on record by posing a question whether there exists sufficient material on record to dispel the presumption as to legitimacy at the behest of the person challenging the legitimacy warranting such direction or not and thereafter arrived at the positive finding as to the conducting and non conducting of the DNA tests on case to case basis.
21. Applying the test laid down by Supreme Court in the case Goutam Kundu (supra), Banarsi Dass (supra) and Shyam Lal (supra) to the facts of the present case, it can be seen that the plaintiff’s mother is a married person with one Mr. Rajender Aggarwal and claims in the plaint that she had some intimate relationship with that of Late Shri Surender Gupta and further assert that the plaintiff is the child which was born out of the intimate relation between the plaintiff’s mother and Late Mr. Gupta between 1997-1999 when she was working in the shop of Mr. Gupta as an employee. It is thus the plaintiff’s mother who asserts that plaintiff is the child who is born outside her wedlock and seeking to establish the illegitimate relationship.
22. It is thus the plaintiff’s mother who is acting on behalf of the plaintiff is seeking to ascribe or prove illegitimacy has to necessarily dislodge the presumption as to the legitimacy which is given to the child who is born during the time the person is married. Thus, the onus lies on the plaintiff’s mother to provide such cogent material to prove non access of her lawful husband at the relevant time in order to bring out a doubtful case to the parentage of the plaintiff.
23. It would be wrong understanding of law to say that the defendants are disputing the parentage and therefore the ipso facto enquiry as to the conducting of DNA test should follow as a matter of course. This is due to reason that the present case is of peculiar kind as in the instant case, the plaintiff’s mother and Late Shri Surender Gupta were not married and the child as per the plaintiff’s mother was born during the continuance of her marriage with Shri Rajesh Aggarwal. It is thus the plaintiff on whom the onus lies as she is asserting illegitimacy through filing of the present suit despite being a lawfully married person. The defendants are merely disputing such status of illegitimacy. It is thus the plaintiff’s mother who has to show contrary to the legitimacy in order to come out of the presumption as to legitimacy. It is not denied by the mother of plaintiff having filed an affidavit on 31st March, 2000 wherein she had deposed that Mr. Gupta never had any sex with her nor had he ever raped her. Extract of affidavit as well as order passed on 3rd March, 2001 by Ms. Ina Malhotra, ASJ in the Sessions Case No.19/2001 entitled State vs. Surendra Gupta registered FIR No.151/2000 PS Defence Colony under Sections 376/342/323 IPC reads as under: Extract of affidavit:
“I, Smt. Rekha Aggarwal wife of Shri Rajesh Agarwal, aged about 36 years, resident of H-60, N.D.S.E. Part-I, New Delhi, do hereby solemnly affirm and declare as under:
1. That a case FIR No.151/2000 was registered at Police Station Defence Colony under Section 376, 342, 323, 506 IPC at my instance against one Surinder Gupta. I was working with M/s. Gupta Telecom of the said accused at E17, N.D.S.E. Part I, New Delhi and I was removed on 29.02.2000 by locking the shop.
2. That I went to Police Station Defence Colony to make such a report but the allegations were changed by the police and the aforesaid FIR was registered by the police at their sweet will saying that no other case was made out.
3. That on learning this, I wrote a letter to the DCP South in my own handwriting. I even filed my affidavit swearing that the accused had neither had sex with me nor he committed rape on me. He had never threatened me, confined or gave beatings to me.
4. That the court of the learned Metropolitan Magistrate was pleased to summon me before finally accepting the cancellation report but I was never informed or served about these proceedings by any one. Hence, I could not appear on 2 dates. The court of the Metropolitan Magistrate, however, took cognizance on the ground that I had not appeared and conflicting versions took the cognizance of the matter.
5. That I am neither interested in continuation of the above case nor I have any grievance against the accused of any kind.”
Extract of the Order:
“This case had been instituted at the behest of one Rekha Aggarwal, w/o Sh. Rajesh Aggarwal against the accused Surender Gupta, U/s 376/342/506/323 IPC in FIR No.151/00, PS Defence Colony. Lateron, the complainant Rekha Aggarwal made a categorical statement before the I.O. that the said complaint was false and was made in a fit of temper as she was locked out of premises No.E-17, South Extension-II, New Delhi. The I.O. in this case filed his cancellation report whereupon the Ld. M.M. gave an opportunity to the complainant to appear before him. The complainant appeared before the Ld. M.M. alongwith her advocate and filed an affidavit to the effect that the complaint against the accused Surender Gupta was baseless. Ld. M.M. took cognizance of the same and the case was sent to my court. In view of the submission made by the Ld. Counsel in this case as well as taking into account the affidavit filed by the complainant in Court as well as her statement on record the cancellation report filed by the I.O. in this case is being accepted and the accused is being duly discharged. File be consigned to record room. Sd/(INA MALHOTRA) ASJ, NEW DELHI3103.2001”
24. Such presumption as to legitimacy can be dispelled by showing strong evidence as to the fact that at the relevant time of the birth of the child, the person had no access with that of his or her spouse. If the present case is tested on the touchstone of the said test, it can be seen that the plaint merely avers that the plaintiff was born out of the intimate relationship between the mother and Late Shri Surender Gupta at the time when mother used to work with Late Mr. Gupta in 1997 – 1999. It also avers that Mr. Gupta started coming home and intimacy between the two developed. However, the plaint nowhere avers that the husband of the plaintiff’s mother had no access with her at the relevant time of conception of the plaintiff. The plaint also does not aver that at the relevant time of conception of the plaintiff, there exists no such possibility of plaintiff conceiving the child with that of her husband. There are no material particulars filed along with the plaint contemporaneous to the averments showing such non access or even casting any doubt as to non access. Even the affidavit of the husband of the plaintiff’s mother is not provided in order to cast any such doubt. In the absence of such evidence on record, the plaintiff is unable to discharge the onus as to dislodge the presumption as to legitimacy of the marriage. No prima facie case exists on the strength of the evidence to even cast any doubt as to the parentage of the plaintiff leading to necessity as to conducting of the DNA test.
25. I am not inclined to accept the submission of Mr. Bakshi, learned counsel for the plaintiff that if the plaintiff’s mother is stating in the plaint that plaintiff was born out of the intimate relationship with Mr. Surender Gupta, that by itself is sufficient for the purpose of prima facie view as this is the best she could say in order to prove her side of the case in order to request this court to pass the directions relating to DNA test. I find the said submission is not meritorious and reject the same. This is due to the reason that the requirement of law is not merely to allege the illicit relations but also to show some positive evidence showing non access with lawful spouse. The mere allegation of adulterous does not lead to finding of illegitimacy as per the well settled law in Shyam Lal’s case (supra). The said adulterous conduct is link towards the illegitimacy but does not quite sufficient to repel this presumption [R vs. Indihabitants of Mansfield, (1907-08) 35 IA41approved in Shyam Lal (supra)].. Thus, the submission of Mr. Bakshi, learned counsel is legally untenable. Therefore, the plaintiff’s mother ought to have shown some evidence indicating non access with her husband at the time of the conception of the plaintiff which in the instant case is non existent. In the absence of the same, the test as to doubt on the legitimacy is not qualified and there exists no eminent need to conduct DNA test on the ground raised by the plaintiff.
26. Mr. Bakshi, learned counsel for the plaintiff has raised a very heavy reliance on the case of Narayan Dutt Tiwari (supra) decided by the learned single judge of this court and then by learned Division Bench on 7th February, 2011. As per the counsel for the plaintiff, the case of Naryan Dutt Tiwari (supra) was also the one where the son was seeking a declaration of similar kind that he is the biological son of Mr. Tiwari and the court ordered DNA testing on his saying. It has also been argued by Mr. Bakshi that in the said case also, the arguments on applicability of Section 112 of the Evidence Act was raised and the same were rejected by the Division Bench by observing that the said Section 112 is not insurmountable hurdle before the court for enquiring the parentage of the child. I find that the case of Narayan Dutt Tiwari (supra) is clearly distinguishable on facts and law in as much as: a) In the case of Naryan Dutt Tiwari (supra), the plaintiff was a son who is major by himself capable of asserting his right and his mother both spoke in one voice that Mr. Narayan Dutt Tiwari is the biological father of the plaintiff. There are averments in the plaint that defendant No.2 who was estranged from her husband, stayed with Mr. Tiwari indicating towards non access. In the instant case, no such facts and circumstances exist indicating non access. b) In the case of Naryan Dutt Tiwari (supra), the argument was raised on the aspect of the access of the mother with that of her husband at the time of the conception. The said argument was rejected on the joint statement of the parents of the plaintiff, in the said case they did not have sexual access to each other. In the instant case, no such joint statement has come forth and thus no such inference as to illegitimacy can be drawn. c) In case of Narayan Dutt Tiwari (supra) the records of the petition filed for dissolution of marriage was produced showing the stands of the father and the mother before the matrimonial court that they are living separately in order to dislodge the presumption as to legitimacy. After weighing the said material and coupled with the fact that father, son and mother speaking in one voice, the court proceeded to hold that Section 112 of the Evidence Act presumption is not insurmountable hurdle before the plaintiff. In the instant case such kind of material, joint statements and stand of the parents are missing, thus, the case of Narayan Dutt Tiwari (supra) is distinguishable on facts and material placed before the said case vis-à-vis this case. Therefore, the observation of the court in Narayan Dutt Tiwari (supra) has to be read in the context of the material placed before the court. The court never proceeded to hold in Narayan Dutt Tiwari (supra) that Section 112 of Evidence Act is irrelevant for the purposes of enquiry as to parentage. Rather, the court after being satisfied proceeded to stage that when both the parents have denied the child to be theirs and stated that they had no access to each other at the relevant time, what more evidence is required to be shown in order to dispel the presumption of Section 112 of the Evidence Act in view of its legislative intent. The case of Narayan Dutt Tiwari (supra) is not applicable to the present case and clearly distinguishable on facts and evidence.
27. I agree with the submission of Mr. Mittal that there exists a contrary evidence on record in the form of deposition of the mother of the plaintiff which has been deposed in the year 2000 after the conception of the child/ plaintiff in the year 1999 wherein it is averred that late Mr. Gupta never had any sex with the mother of the plaintiff nor had he raped her which puts an eclipse to the prima facie case of the plaintiff and the desirability to conduct such DNA testing on the ground of finding of parentage.
28. Accordingly, I am of the view that there exists no eminent need to enquire the parentage of the plaintiff in view of the plaintiff’s mother who is asserting illegitimacy failing to discharge the onus to dislodge presumption as to legitimacy as per the provisions of Section 112 of the Evidence Act.
29. The second ground on the basis of which the directions as to DNA testing has been sought for by the plaintiff’s mother is that the plaintiff is the class I heir of Late Shri Surender Gupta and as such entitled to share in the properties of Mr. Gupta as per Hindu Succession Act.
30. I find that the said ground is also not sufficient to justify the direction to conduct DNA test in as much as even if the plaintiff is established to be illegitimate son of the Late Mr. Gupta, for which the plaintiffs mother has to first discharge the onus as to dispel the legitimacy conferred upon the child, still as the plaintiffs mother was not married to the Late Shri Gupta, it is highly doubtful as to how the illegitimate child born out of the relationship outside marriage can be given legitimacy in view of the wordings of Section 16 of the Hindu Succession Act which merely gives the legitimacy to the illegitimate children born out of the void or voidable marriage. In such a case, in order to come within the purview of fiction as to legitimacy engrafted by the statute which is Hindu Succession Act, the condition precedent is marriage, be it void or voidable. But the child arising out of mere illegitimate relationship without any marriage between the two persons is not eventuality which is covered within the ambit and sweep of Section 16 of Hindu Succession Act and the legitimacy cannot be conferred on such kind of illegitimacy as the court can give effect to the fiction contained in the statute to the extent provided in the Act and not beyond the same.
31. The said proposition is explained by the Supreme Court in the case of Revanasiddappa & Anr. vs. Mallikarjun, (2011) 11 SCC28wherein the court observed thus:
“With the amendment of Section 16(3), the common law view that the offsprings of marriage which is void and voidable are illegitimate `ipso-jure' has to change completely. We must recognize the status of such children which has been legislatively declared legitimate and simultaneously law recognises the rights of such children in the property of their parents. This is a law to advance the socially beneficial purpose of removing the stigma of illegitimacy on such children who are as innocent as any other children.
34. However, one thing must be made clear that benefit given under the amended Section 16 is available only in cases where there is a marriage but such marriage is void or voidable in view of the provisions of the Act.”
(Emphasis Supplied) 32. Applying the dictum of Revanasiddappa (supra) to the facts of the present case, it can be seen that there existed no marital relationship between the plaintiff’s mother and late Shri Gupta entitling the plaintiff as a son to claim the benefit of legal fiction as to legitimacy provided under the provisions of Section 16 of the Hindu Succession Act. Under these circumstances, it is highly doubtful as to how the plaintiff can avail the benefit of Section 16 of the Hindu Succession Act and can call himself a class-I heir of Late Shri Gupta. Thus, on the said ground also, no prima facie case is made out warranting the directions to be passed for DNA test of the defendants who are sons and daughters of late Mr. Gupta and are differently situated from that of the plaintiff.
33. Accordingly from whichever standpoint, the case of the plaintiff through his mother is weighted, i.e. either from the angle of disputing the legitimacy of the child and seeking to establish to such negative presumption, which the plaintiff is not able establish by any strong evidence or from the perspective of the welfare of the child in which case there is no expectancy of plaintiff getting any property right in view of non existence of void or voidable marriage between the plaintiffs mother and late Mr. Gupta, there exists no prima facie case in favour of plaintiff’s much less strong prima facie which is the requirement as per the law as a prerequisite for passing order directing DNA test of the defendants.
34. Recently, the Supreme Court has also highlighted the precautious approach which the courts have to adopt while passing orders directing DNA test of the person. The Supreme Court has held that the court seized of with such an application has to weigh the diverse aspects including presumption of legitimacy, effects of ordering such test, strong prima facie material produced before the court, has to take a judicious approach while passing such order after forming an opinion that there exists eminent need to pass such orders. The Supreme Court has observed this opinion in the case of Bhabani Prasad Jena Etc. vs. Orissa State Commission for Women, (2010) 8 SCC633after analyzing the authorities on the subject from Gautham Kundu (supra), Banarsi Dass (supra) and Sharda (supra) and proceeded to observe the same. In the words of Supreme Court speaking through R.M. Lodha, J., it has been observed thus:
“In a matter where paternity of a child is in issue before the court, the use of DNA is an extremely delicate and sensitive aspect. One view is that when modern science gives means of ascertaining the paternity of a child, there should not be any hesitation to use those means whenever the occasion requires. The other view is that the court must be reluctant in use of such scientific advances and tools which result in invasion of right to privacy of an individual and may not only be prejudicial to the rights of the parties but may have devastating effect on the child. Sometimes the result of such scientific test may bastardise an innocent child even though his mother and her spouse were living together during the time of conception. 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. (Emphasis Supplied) 14. There is no conflict in the two decisions of this Court, namely, Goutam Kundu and Sharda. In Goutam Kundu, it has been laid down that courts in India cannot order blood test as a matter of course and such prayers cannot be granted to have roving inquiry; there must be strong prima facie case and court must carefully examine as to what would be the consequence of ordering the blood test. In the case of Sharda while concluding that a matrimonial court has power to order a person to undergo a medical test, it was reiterated that the court should exercise such a power if the applicant has a strong prima facie case and there is sufficient material before the Court” (Emphasis Supplied) 35. If the instant case is tested upon the touchstone of the scope of the enquiry and the aspects which the court has to look into while passing orders directing DNA test as culled out in the case of Bhabani Prasad (supra), it can be safely said that there exists no prima facie case in favour of the plaintiff warranting such directions. Rather even if this court weighs the material from the perspective of parens patriae jurisdiction, ordering of such test without dispelling the presumption of legitimacy may prove to be fatal to the child as laid down in the underlined portion in Bhabani Prasad (supra). The present application deserves to be dismissed. Ordered accordingly. (MANMOHAN SINGH) JUDGE APRIL16 2014