Judgment:
ORDER
P.N. Sinha, J.
1. The instant revisional application has been filed by the husband petitioner under Sections 397/401 read with Section 482 of the Code of Criminal Procedure (hereinafter called the Code) assailing the order dated 29-9-2003 passed by the learned Judicial Magistrate, 5th Court, Barrackpore in Misc. Case No. 212 of 2002 thereby refusing the prayers of the petitioner for DNA Test of petitioner, his wife, male child and one Sankar Biswas and also to accept supplementary written objection filed by him and to pass order that this petitioner is not pressing the previous written objection tiled by him.
2. The facts of the case giving rise to the instant revisional application, as disclosed in the revisional application, in brief, are as follows :
The petitioner was married with O.P. No. 1 on 12-2-2001 and thereafter on 26-2-2001 the petitioner took away his wife to his working place at Madhya Pradesh for leading marital life. The O.P. wile developed an illicit and adultery relationship with one Sankar Biswas, one of his colleagues and his wife used to enjoy frequent visit of Sankar Biswas at his quarter during his absence. One day after going back from office he found his wife and Sankar Biswas lying on bed and he asked Sankar Biswas to leave his quarter at once and Sankar Biswas at the time of going away threatened him with dire consequences. The petitioner has bona fide apprehension that the child begotten was out of extra marital and continuous adulterous relationship of his wife with Sankar Biswas. Soon thereafter, his wife left his quarter at Madhya Pradesh with Sankar Biswas and came back to her paternal home at Dakshineswar. On 3-12-2001 the O.P. No. 1 wife gave birth to a male child and on 11-3-2002 she came back to her matrimonial home with her minor child. Thereafter on 17-4-2002 the O. P. wife left the matrimonial home with her minor child without informing his parents or to him. Thereafter, the O.P. wife as petitioner filed an application under Section 125 of the Code against him praying for maintenance @ Rs. 1500/-per month for herself and @ Rs. 1000/- per month for the minor son. The learned Magistrate by order dated 5-3-2003 directed payment of Rs. 1000/- as interim maintenance in favour of the wife but did not grant any interim maintenance in favour of the minor child. The petitioner who is opposite party in the Court below filed a supplementary written objection before the learned Magistrate praying for DNA examination of the minor child and for him alleging that the child was born due to the illicit and illegal cohabitation between the petitioner wife and Sankar Biswas as they are still living in adultery. The petitioner as O.P. also filed an application praying for stay of all further proceeding including order of Interim maintenance. The learned Magistrate by his order dated 29-9-2003 rejected all of his applications and prayers and hence the instant revisional application.
3. Mr. Ajit Kumar Panja, learned senior advocate appearing for the husband petitioner contended that after the marriage when he took away his wife at his place of work, she soon developed intimacy with one Sankar Biswas, one of his colleagues and their intimacy grew into illicit relationship. One day after coming back to home from office he found his wife and Sankar Biswas lying on bed. His wife the O.P. No. 1 gave birth to a male child on 3-12-2001 and he has bona fide apprehension that the said child was begotten out of the extra marital and continuous adulterous relationship of his wife with Sankar Biswas. The learned Magistrate was completely in error by rejecting the subsequent written objection filed by him and to pass an order that the previous written objection filed by him should be treated as not pressed. The learned Magistrate also failed to understand the importance of DNA Test. If the DNA Test of the child, his wife, himself and Sankar Biswas are taken, the report of the DNA Test will solve all the controversies and if after DNA Test it is found that the child was born out of cohabitation of petitioner and his wife all the apprehension in the mind of the petitioner would be removed and he would be very free to lead a happy and marital life with his wife and child. All the confusion and the suspicion in his mind regarding birth of the child would be removed and he would be free of tension and anxiety and would be able to live a very happy marital life with his wife. The Supreme Court very recently in the case of Sharda v. Dharampal reported in : [2003]3SCR106 observed that a matrimonial Court has the power to order a person to undergo medical test. Passing of such an order by the Court would not be inviolation of the right to personal liberty under Article 21. The Supreme Court further observed that, '(1) In any civil proceeding in which the parentage of any person falls to be determined, the Court may either of its own motion or on an application by any party to the proceedings give a direction (a) For the use of scientific tests to ascertain whether such tests show that a party to the proceeding is or is not the father or mother of the person; and (b)) for the Inking within a period specified in the direction, of bodily samples from all or any of the following, namely, that person, or any parly who is alleged to be the father or mother of that person or any other parly to the 'proceeding.'
4. The Supreme Court also made it clear that the case of Contain Kundu v. State of West Bengal reported in : 1993CriLJ3233 is not an authority, Mr. panja referred to the paragraphs 17, 20, 22, 24. 38, 39, 42, 46, 48, 49, 74, 79 and 81 of the said decision and contended that this is the latest decision of the Supreme Court and this decision sets at rest all the earlier decisions. Accordingly, a matrimonial Court has the power to order a person to undergo medical test particularly when question of parentage of any person in question fells for determination in the Court. Accordingly, the order of the learned Magistrate rejecting prayer of the petitioner in the Court below for the DMA Test of the child, his wife, himself and Sankar Biswas is bad in law. The order of the learned Magistrate regarding reject ion to accept subsequent written objection is also bad in law.
5. Mr. panja further contended that the DNA Test by the experts may not. only reveal the truth but may also remove the misunderstanding between the husband and wife and help them in reconciliation. For the propriety and accuracy of the parentage of the minor child, technical and expert investigation in the form of DNA Test is necessary. He also contended that the allegation of the husband petitioner regarding immorality and promiscuity against the wife can also he revealed by the DNA Test. Therefore, medical opinion in the instant case is essential and it would be an acceptable piece of evidence The order of the learned Magistrate is total non-application of mind into the point of dispute and the learned Magistrate tailed to consider the present position of law that has been enunciated by the Supreme Court in the aforesaid decision. Accordingly, the order of the learned Magistrate should be set aside and this Court should direct the learned Magistrate for holding DNA Test as prayed for and also for accepting the additional written objection filed by the husband petitioner and till conclusion of the DNA Test should stop all further proceeding of the Misc. Case.
6. Ms. Sabita Bandopadhyay, learned Advocate for the O.P. No. 1 wife contended that there is no ground for DNA Test at all in the instant case. This is not a matrimonial dispute. In a proceeding under Section 125 of the Code a learned Magistrate should not direct DNA Test of the child, the prime consideration in a proceeding under Section 125 is whether the neglected wife and child is entitled to claim maintenance from the husband and father respectively. If the husband challenges paternity of the child he should approach the civil Court for such declaration. She contended that DNA Test is not conclusive proof and it cannot rebut the presumption regarding paternity of the child born during subsistence of valid marriage under Section 112 of the Evidence Act. In support of her contention he cited the decisions reported in AIR 2002 Karnataka 50 (Smt. Ningamma v. Chikkaiah), : [2001]3SCR729 (Smt. Kamti Devi v. Poshi Ram), 1993 Cri LJ 1659 (Cal) (Tushar Roy v. Smt. Sukla Roy), : 1993CriLJ3233 (Goutam Kundu v. State of West Bengal) and 2003 (4) Cal HN 649 (Manik Chandra Ankure v. State of West Bengal).
7. She further contended that Sankar Biswas was a friend of the present husband petitioner but Sankar Biswas never had any access to the wife. The allegation that one day the husband petitioner found the wife on bed with Sankar Biswas is absolutely false and that is why no specific date of such incident has been mentioned. The letters written by the husband petitioner addressed to his wife will prove the relation of strong love between the husband and wife and even two months before the birth of the child the husband wrote letters to his wife disclosing his strong love for the wife and in such letters the husband never questioned paternity of child, nor raised suspicion against wife about her alleged adultery. Due to the torture on the wife by her in-laws including the present petitioner, the O.P. wife was compelled to leave matrimonial home and is living in her father's house. The attempt of the husband petitioner is nothing but to drag the case unnecessarily and to avoid payment of maintenance to the wife and the child. The order of the learned Magistrate being correct and proper requires no interference and the revisional application should be dismissed.
8. After going through the contents of the revisional application and annexure made thereto and considering the submissions made by the learned advocates of the parties and the decisions placed by them I am of opinion that there is no dispute regarding marriage between petitioner and O.P. No. 1 and it appears that the marriage was solemnised on 12-2-2001. It is also admitted that on 3-12-2001 that O.P. No. 1 wife gave birth to a male child. It is clear, therefore, that there was exactly 10 months gap between the marriage of the parties and birth of the child and this period is the sufficient gestation period regarding birth of a child out of a valid marriage. Presumption as laid down in Section 112 of the Evidence Act is, therefore, very strong in the instant case in favour of the wife and in order to rebut such presumption regarding paternity of the child very strong evidence is required to establish that husband petitioner was not the father of the child and the child was not begotten through the husband petitioner. In this context it requires consideration whether in such a case the prayer for DNA Test as submitted by the husband petitioner is permissible in the instant case.
9. The decision on which Mr. Panja placed reliance namely Sharda's case (AIR 2003 SC 3450) (supra) arose out of a matrimonial dispute under Sections 13(1)(iii), 12(1)(b) and 5(ii)(b) of the Hindu Marriage Act. The present proceeding arises out of an application under Section 125 of the Code. The object and purpose of Hindu Marriage Act and Section 125 of the Code should be considered in this background. A suit for divorce under Sections 13(1)(iii), 12(1)(b) and 5(ii)(b) of the Hindu Marriage Act is completely different from the preamble and purpose of provisions of Section 125 of the Code. Section 125 of the Code was enacted by the Parliament considering the fate of poor and neglected wives who have been deserted by their husbands and who are unable to maintain themselves though their husbands have sufficient income. It is a social device introduced for the welfare and benefit of neglected wives who are unable to maintain themselves and their child. On the other hand, Hindu Marriage Act is concerning the marital status of husband and wife and for divorce strict proof of adultery of either of the spouse is one of the grounds. Therefore, a matrimonial suit is to some extent different from provisions of Section 125 of the Code regarding object and natural.
10. In Goutam Kundu's case (1993 Cri LJ 3233) (supra) the Supreme Court after discussing several decisions including decisions of Courts of England observed that, 'Section 112 requires the party disputing the paternity to prove non-access in order to dispel the presumption. 'Access' and 'non-access' mean the existence or non-existence of opportunities for sexual inter course'; it does not mean actual cohabitation, it is a rebut table presumption of law under Section 112 that a child horn during the lawful wedlock is legitimate and that access occurred between the parents. This presumption can only be displaced by a strong preponderance of evidence, and not by a mere balance of probabilities. Thus following is the position as to permissibility of blood test to prove paternity. (1) That Courts in India cannot order blood lest as a matter of course. (2) Wherever application are made for such payers in order to have roving inquiry, the prayer for blood test cannot be entertained. (3) There must be a strong prima facie case in that the husband must establish non-access in order to dispel the presumption arising under Section 112 of the Evidence Act. (4) The Court must carefully examine as to what would be the consequence of ordering the blood lest; whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman. (5) No one can be compelled to give sample of blood for analysis.'
11. The Supreme Court in a later decision in Shrada's case : [2003]3SCR106 (supra) observed that, 'Goutam Kundu 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.' The decision of the Supreme Court in Shrada's case, therefore, does not make it clear and conclusive that the decision of the Goutam Kundu's case (1993 Cri LJ 3233) (supra) is totally overruled. The Supreme Court in the later decision of Shrada's case has observed that the matrimonial Court in appropriate case can pass a direction for medical examination. The point for our consideration whether in the instant case such situation has arisen to direct medical test i.e. DNA Test as prayed for by the petitioner and whether the present proceeding' should be treated as a matrimonial proceeding or matrimonial suit.
12. The decision in Sharda : [2003]3SCR106 (supra) of course does not lay down a mandate that in each and every case of such nature where parentage is in dispute, the matrimonial Court shall pass orders for medical test. The Supreme Court observed as follows :
'To sum up, our conclusions are :
1. A matrimonial Court has the power to order a person to undergo medical test.
2. Passing of such an order by the Court would not be in violation of the right to personal liberty under Article 21 of the Indian Constitution.
3. However, the Court should exercise such a power if the applicant has a strong prima facie case and there is sufficient material before the Court. If despite the order of the Court, the respondent refuses to submit himself to medical examination, the Court will be entitled to draw an adverse inference against him.'
13. It clearly lays down that if the applicant has a strong prima facie case the matrimonial Court can direct medical test and there cannot be direction for medical test in each and every case.
14. Before proceeding further into this point I like to point out that the alleged letters written by the husband petitioner to his wife and others shown to me by the learned advocate for the opposite party to show that even one month or two months before the birth of the child the husband did not suspect anything concerning paternity of the child cannot be considered at this stage. These letters were not filed through affidavit. Moreover, these letters have not yet been admitted in evidence as exhibits in the Court below. Therefore, at this stage filing of such letters in this revisional application cannot be considered by this Court. The wife opposite party is at liberty during trial before the learned Magistrate to prove those letters in accordance with law to admit such letters in evidence to establish her case.
15. In the Misc. Case under Section 125 of the Code before the learned Magistrate the husband has recently filed one additional written objection praying for rejection of previous written objection. The case has not reached the stage of evidence. Unless the parties lead evidence in Court in support of their respective eases and the husband leads evidence to convince the Court that his wife was leading a continuous adulterous life with one Sankar Riswas as alleged, a Magistrate Court cannot refuse maintenance. It is well settled in law that single lapse on the part of wife or single act of adultery as alleged would not be sufficient to reject her claim for maintenance. I have already discussed about the aim and object of provisions of Section 125 of the Code and it was introduced for providing quick remedy against any person who having sufficient means neglects or refuses to maintain his wife and children or other dependants. The prime object of this section is to prevent starvation and vagrancy and provisions of Section 125 to some extent prescribes summary procedure. Decisions in such proceedings regarding marital status of the parties cannot be regarded as final and it is also well-known that in a proceeding under Section 125 of the Code strict proof of marriage is not necessary like a matrimonial suit or proceeding under Section 494 of IPC. The findings of Magistrate in a proceeding under Section 125 of the Code are not final regarding marital status and any party who is aggrieved can agitate his right in civil Court. In a proceeding under Section 125 of the Code, a Magistrate is not justified in suspecting the chastity of the wife on the basis of mere accusation of husband unless there is very strong evidence before the learned Magistrate concerning chastity of the wife or in respect of her continuous adulterous life. If the husband wants to challenge the paternity of the child he can move appropriate civil Court in matrimonial proceeding for such declaration. The present proceeding cannot be regarded as a matrimonial suit or matrimonial proceeding, in view of the earlier discussion made while considering aim and object of Section 125, Cr. P.C. proceeding.
16. After considering the decisions of Goutam Kundu (1993 Cri LJ 3233) and other decisions and the decision of Shrada : [2003]3SCR106 (supra) cited by the learned advocate for petitioner and after considering the Indian legal system I am of opinion that time is not yet ripe for a meaningful judicial activism so as to throw out the judicial interpretation of Section 112 of the Evidence Act.
17. Section 112 lays down that if a person was born during continuance of a valid marriage between his mother and any man or within 280 days after its dissolution and the mother remains unmarried it shall be taken as conclusive proof that it is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten. The rule of law has always been made by (he Courts towards upholding the legitimacy of the child unless the facts are so compulsive and clinching so as to necessarily warrant a finding the child could not at all have been begotten to the father. There must be a very strong prima facie case and evidence and the husband must prove beyond all reasonable doubts regarding his non access to the wife in order to dispel the presumption arising under Section 112 of the Evidence Act. In the instant case within 10 months of the marriage the child was born and introduction of Sankar Biswas or access of Sankar Biswas to the wife was not there during the initial stages. Soon after the marriage this husband petitioner had access to the wife and there after he took away his wife to his working place and there also he had access to his wife. Sometimes after the petitioner might have introduced sankar Biswas to the wife but the husband in the application did not mention the specific date on which he allegedly found his wife on bed with Sankar Biswas, Who knows that by that time the child was already begotten through this petitioner.
18. We cannot ignore the social system, customs, standard of living etc. prevalent in India. We the Indians particularly the Hindus and Muslims except Christians are to some extent conservative. It is unthinkable keeping in mind the social system in India that a newly married lady would be allowed to mix with other person soon after the marriage. The pattern of leading life in 'filmy' world or in highly aristocratic family who are habituated in 'meeting different parties and night clubs are not available in common conservation orthodox family. In the instant case the averments made in the revisional application will make it clear that the allegations made by the husband petitioner against his wife are unsustainable and unacceptable and it does not appear from the pleadings of the parties that they belong to high aristocratic family and free mixing between men and women were permissible in their families.
19. In paragraphs 2 and 3 of the revisional application he has alleged that the marriage was registered on 9-11-2000 and the marriage was soleminised on 12-2-2001, On 26 2-2001 the husband petitioner took away O.P. No. 1 wife to his working place at Madhya Pradesh to lead a marital life. Paragraph 7 of the revisional application reveals that the O.P. No. 1 wife gave birth to a male child on 3-12-2001. It is clear from the averments of the revisional application that the child was born within 10 months from the date of solemnisation of marriage and within 295 days of solemnisation of marriage on 12-2-2001, 17 days of February + 31 days of March + 30 days of April + 31 days of May + 30 days of June + 31 days of July + 31 days of August + 0 days of September + 31 days of October + 30 days of November + 2 days of December makes 295 days between 12 2-9001 to 2-12-2001. I have excluded 3-12-2001 which is the date of birth of the child. According to paragraph 3 of the revisional application on 26-2-2001 i.e. fourteen days (14 days) alter the solemnisation of marriage the wife was taken to the working place of husband and accordingly these 14 days are to be excluded. Excluding these 14 days the picture that comes before us is that the child was born within 280 days from the date of solemnisation of the marriage. It is unexpected that on the very first date of reaching working place of husband, the wife became very close with the alleged Sankar Biswas and slept with him on bed on that night. It takes some time or gap) some days for a woman and unknown man to come close together to allow that man access to sexual intercourse. It is not the case of husband petitioner that from the very first dale of reaching the working places at Madhya Pradesh, the wife started making adultery with Sankar Biswas and there is also no al legation that the wife of petitioner was known to Sankar Biswas earlier. Naturally few more days are to excluded between the period of solemnisation of marriage and birth of child and it would make clear that the child was begotten by this petitioner and no one else. It was not possible for O.P. No. 1 wife to mix with Sankar Biswas soon after reaching at the working place of husband. The calculation of above dates starting from solemnisation of marriage and birth of the child make it clear that the child was born during valid wedlock period of the parties during which only the husband petitioner had access to his wife for sexual intercourse or cohabitation and no third party had access to wife for cohabitation or sexual intercourse.
20. The above discussion makes it clear that the presumption of law as laid down in Section 112 is quite effective and applicable in the Instant case as the section lays down that if a person was born during the continuance of a valid marriage between his mother and any man and within 280 days after Its dissolution the mother remains unmarried it shall be taken as conclusive proof that he is the legitimate son of that man. unless It can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten. In the Instant case the position is very clear from the averments of the revulsion application that the husband petitioner only had access to the O.P. No. 1 wife since marriage and the child was born within 280 days from the date of solemnisation of the marriage. It Is clear during that time when the child could have been begotten Sankar Biswas had no scope at all to have any access to O.P. No. 1 wife and. therefore, question of birth of the child due to adultery of the wife is nothing but a wild, vague and baseless allegation.
21. The decision in Sharda : [2003]3SCR106 (supra) as cited by the learned advocate for petitioner Is not applicable in the instant proceeding. The decision of the Supreme Court in Shrada's case (supra) cannot be taken as universal application In each and every case. The facts and circumstances of the present case makes It clear that there is no scope of DNA Test in the instant case as facts and circumstances of each case depends upon Its own merits.
22. In this proceeding under Section 125 of the Code there is no need of passing any such direction for DNA Test. Let the parties Introduce evidence in support of their respective cases and let the Magistrate decide fate of the case on the basis of evidence. The learned Magistrate should also keep in mind the aim and object of provisions of Section 125 of the Code. Alter considering the oral and documentary evidence adduced by the parties and also alleged letters which the wife wanted to show here which letters require to be proved In the Court below in accordance with law and thereafter considering the entire evidence the learned Magistrate should pass necessary order in accordance with law. The order of the learned Magistrate so far as it relates to rejection of the DNA Test, therefore, requires no interference.
23. The order of the learned Magistrate regarding rejection of additional written objection filed by the husband was correct. The copy of the additional written objection annexed with this revlsional application makes It clear that the husband petitioner as O.P. in the Court below through that additional written statement has wanted to introduce new and Inconsistent matters and some facts which are wholly Irrelevant for this Section 125, Cr. P.C. matter and through that additional written statement the husband has tried to describe his wife as a prostitute. Through the additional written objection the husband has wanted to introduce some completely different stories which cannot be permitted In a proceeding under Section 125 of Cr. P.C. Learned Magistrate very rightly rejected the additional written statement and there Is no ground at all to interfere with the order of learned Magistrate in this respect.
24. There Is no ground at all to stay further progress of the Section 125 of the Code case pending before the learned Magistrate during pendency of the DNA Test because, this Court is of opining that no question of DNA Test arises in the instant matter. If after decision of the learned Magistrate in the Section 125 application on the basis of evidence and materials on record the husband petitioner feels aggrieved, he is at liberty to approach appropriate civil Court challenging paternity of the child for necessary declaration. I am also of opinion that the learned Magistrate was in error by rejecting claim of the wife for interim maintenance of the child and in a proceeding under Section 125 of the Code learned Magistrate should have considered claim for interim maintenance made by the wife for the minor child.
25. It is made clear that Sankar Biswas is not at all a necessary party in the present proceeding under Section 125 of Cr. P.C. Learned Magistrate rightly rejected prayer of husband petitioner to implead him as a party in this case and it requires no interference.
26. The revisional application accordingly fails and is dismissed. Learned Magistrate is directed to expedite hearing of the main application under Section 125 of the Code as early possible and not to allow undue adjournments to the parties.
27. There is no ground at all to stay further proceeding of this case and also payment of interim maintenance to the wife. Order of learned Magistrate rejecting husband's prayers in these respects require no interference and order of learned Magistrate cannot be regarded as bad in law, irregular or without jurisdiction.
28. It is made clear that whatever has been observed by this Court in this revisional application should not be considered as observation on merit of the main Section 125, Cr. P.C. application and learned Magistrate would arrive at his own decision on the basis of evidence and materials on record.
29. Send a copy of this order to the learned Judicial Magistrate, 5th Court, Barrackpore for information and necessary action.
30. Urgent xerox certified copy be given to the parties, if applied for, expeditiously.