IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21.08.2008 CORAM: THE HONOURABLE MR.JUSTICE K. MOHAN RAM Crl.R.C.No.1117 of 2008 and M.P.No.1 of 2008 K. Neelaveni .. Petitioner. Versus 1. S.K. Sivakumar 2. Alamelu 3. S. Mukundan 4. Jamuna 5. V.Usha 6. P. Venkatesan 7. Pazhamalai 8. Megala 9. Selvaraj 10. Dharani 11. Jayanthi 12. Selvaraj 13. Elumalai 14. Manimegalai 15. Bharathi 16. State by The Inspector of Police, Selaiyur Police Station, Tambaram, Chennai. ...Respondents Criminal Revision filed under section 397 read with 401 Cr.P.C to call for the entire records of the order passed by the learned Judicial Magistrate No.1, Chengalpattu in Cr.M.P.No.1006 of 2008 in C.C.No.346 of 2007 dated 30.06.2008, set aside the same and further direct the first respondoent, 15th respondent and their child Shivasakthi to undergo DNA test. For Petitioner : M/s. S.Sathiachandran For Respondent : Mr. A.Saravanan Government Advocate (Crl. Side) O R D E R
On the basis of the complaint lodged by the defacto complainant/the petitioner herein a case was registered against the respondents 1 to 15 herein for offences under section 498(A), 406 and 494 IPC. After completing investigation, charge sheet has been filed and the same has been taken on file as C.C.No.169 of 2003 on the file of the learned Judicial Magistrate No.I. Chengalpattu. Pending trial, the investigating officer filed an application in C.M.P.No.1006 of 2008 to subject the first accused, 15th accused and the child of the 15th accused for DNA test, contending that A1 and A15 lived as husband and wife and out of their relationship, a child was born and the DNA test is necessary to prove that there was a marriage between A1 and A15. The said petition was dismissed by the learned Judicial Magistrate, by her order dated 30.06.2008. The State has not preferred any revision, whereas the defacto complainant has filed the above Criminal Revision.
2. Ms. S.Sathiachandran, learned counsel for the petitioner vehemently contended that DNA test for A1 and A15 and the child born to them is necessary to prove the offence under section 494 IPC. The learned counsel for the petitioner also relied on the decision of this Court reported in 2004(5) CTC 182 (Bommi and another vs. Munirathinam).
3. Countering the said submissions, Mr.Murali, learned counsel taking notice for the accused 1 to 12/respondents 1 to 12 submitted that the alleged second marriage has to be proved as a matter of fact by adducing acceptable evidences and even assuming that the child was born to A1 and A15 out of their relationship that itself will not prove the factum of second marriage and therefore submitted that the order passed by the learned Judicial Magistrate is correct. In respect of his contention, learned counsel relied upon the decision reported in 2008(1) MLJ (Crl.) 425 (Dr.Jayakumar @ Javid Kamal ..vs.. State represented by Sub Inspector of Police, Guduvancheri Police Station, Kancheepuram District and another”. In the said decision in paragraph 6, it has been held as under:-
“I have carefully considered the above said submissions made by the learned counsel on either side. At the outset, it has to be pointed out that a perusal of the complaint lodged by the second respondent does not contain any averments constituting the ingredients for the commission of an offence under Section 494 IPC. As rightly contended by the learned counsel for the petitioner that under the charge of Bigamy, if the evidence showed that the essential ceremonies have not been performed cannot justify the conviction even though admitted by the accused and that the prosecution must prove that the second marriage was duly performed in accordance with religious rites applicable to the form of marriage and an admission by the accused in this respect cannot be made the basis of conviction. A perusal of the statement of witnesses recorded under Section 161 of the Criminal Procedure Code during the course of investigation also shows that the necessary averments constituting an offence under section 494 IPC are conspicuously absent. The witnesses have simply stated that the petitioner had admitted to the complainant that he had married Mumtaz. Such a statement alone cannot be the basis for framing a charge under section 494 IPC. As laid down in the decision reported in Kanwal Ram ..vs.. Himachal Pradesh Administration AIR 1966 SC 614 : (1966) MLJ (Crl) 151 under the charge of bigamy, if the evidence showed that the essential ceremonies have not been performed it cannot justify the conviction even though admitted by the accused.”
4. I have carefully considered the submissions made on either side. To maintain the charge under section 494 IPC, there should be evidence to show that essential ceremonies were performed at the time of alleged second marriage and such ceremonies and other requirements for a valid marriage have to be established by adducing evidence in the course of trial and a valid marriage between a man and woman cannot be presumed from the fact that a child was born out of their relationship. Unmarried man and woman may have sexual relationship and out of that a child may be born and from that it cannot be presumed that there was a valid marriage between them. Therefore, as rightly pointed out by the learned Judicial Magistrate, if there was a valid second marriage between the first and 15th accused, that has to be proved only by evidence and not by subjecting them and the child for DNA test. The aforesaid reasoning of the learned Judicial Magistrate is in accordance with settled principles of law and no exception can be taken to that. The decision reported in 2005(5) CTC 182 relied upon by the learned counsel for the petitioner has no relevance to the facts of this case. In that case, paternity of the child was denied by the male and it was a case of maintenance and hence, the learned judge came to the conclusion that DNA test is a must. But that is not the case here. Hence, the above said decision is not applicable to the facts of this case. Therefore the above revision is bereft of merits and the same is liable to be dismissed and accordingly dismissed. Consequently, connected Miscellaneous Petition is closed.
21.08.2008
Index:Yes
Internet:Yes
mra
To
1. The Inspector of Police,
Selaiyur Police Station,
Tambaram, Chennai
2. The Public Prosecutor,
High Court, Madras
K. MOHAN RAM,J
mra
Crl.R.C.No.1117 of 2008
and
M.P.No.1 of 2008
21.08.2008