HIGH COURT OF MADHYA PRADESH : JABALPUR
M.Cr.C. No. 5273/2010
Lallu Lal Patel
-Vs-
Smt.Anar Kali @ Tannu Bai Yadav and another
PRESENT : Hon. M.A.Siddiqui,J.
Shri Ashok Lalwani , Adv. for petitioner.
Shri Paritosh Trivedi, Adv.for respondents.
ORDER RESERVED ON 14/02/2011.
ORDER PASSED ON 21/02/2011.
ORDER
This petition under Section 482 of Cr.P.C. has been
filed by the petitioner to invoke the extra ordinary powers
of this Court to order for DNA test of respondent no.2
Sanju Yadav @ Munna Lal Yadav in proceeding under
Section 125 Cr.P.C.pending before JMFC, Mandla.
(2) In brief, the petition is that respondent no.1 is not
the wife of petitioner and respondent no.2 is not the
legitimate/illegitimate son of petitioner. Proceeding for
maintenance of respondent no.2 is pending before JMFC,
Mandla where n application for DNA test of respondent
no.2 has been filed. On 19.1.10 the application for DNA
test has been rejected by JMFC, Mandla and on revision
by Cri.Revision No.21/10, on 19.4.10, request for DNA
test has been refused. It is alleged that it is necessary not
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only for deciding the case, but also to wash off the stigma
of illegitimate child which respondent no.2 has to carry
with him through out his life. Respondent has objected
the test. Aggrieved by the orders, this petition has been
filed by the petitioner.
(3) Learned counsel for petitioner submits that
petitioner is not the husband of respondent no.1 and he
got declaration through a civil suit and she wrongly filed
a case under Section 125 Cr.P.C. not for herself but for
her son Sanju. Petitioner has got acquittal from the
criminal case of rape in ST No. 153/98 on 22nd
April,1999. He got the decree from civil suit that he is
not the husband of respondent no.1. Petitioner has
rightly moved application for DNA test of the boy Sanju to
ascertain the paternity, but same has been wrongly
refused by the two Courts below. He prays that direction
to do the DNA test of the boy Sanju may be given.
(4) Respondents have opposed the request and
supported both the orders of the Courts below on the
ground that both are reasoned orders and it has been
rightly discussed that it is the duty of the petitioner to
prove his own case and he cannot make the Court as a
tool to collect the evidence and DNA test is a test which
cannot be ordered against the Will of the person.
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(5) Learned counsel for petitioner submitted the case
law of Kerala High Court in Sajeera vs. P.K.Salim 2000
Cri.L.J.1208 which has also been relied on by the trial
Court in which it has been held that under Section 112
of Evidence Act, for evidence of legitimacy and paternity
of child, no one can be compelled to undergo blood test.
Blood test should be conducted only with the consent of
the person. Learned counsel for petitioner has placed
reliance on H.M.Prakash alias Dali vs.State of
Karnataka 2004 (3) KarLJ 584 which is based on
section 53 of the Cr.P.C. and which is about direction to
the police officer and it has no relevancy with the case in
hand. In C.Rajaram vs. Jothi and another Crl.O.P.No.
35499 of 2007 order of DNA test was given as lady gave
birth to a child before nine months of the marriage. So
this authority is also of no relevance.
(6) Learned counsel for petitioner has placed reliance
on a decision of Apex Court in Buridi Vanajakshmi vs.
Buridi Venkata Satya Varaha Prasad Gangadhar Rao &
Anr. AIR 2010 AP 172 wherein it has been held that
under Hindu Marriage Act for the dispute as to paternity
of child, DNA test could be ordered by the High Court
under its inherent powers, but against it is the authority
of Apex Court Goutam Kundu vs. State of West Bengal
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AIR 1993 SC 2295 wherein it has been held that nobody
can be compelled to give sample of blood for analysis.
Almost similar view has been reiterated in Smt. Selvi &
Ors. vs. State of Karnataka AIR 2010 SC 1974 wherein
it has been held that for Narco analysis consent is a
must.
(7) In Banarsi Dass vs. Teeku Dutta (Mrs.) And
Another (2005) 4 SCC 449 it has been held that under
Section 112 and 4 of Evidence Act, the conclusiveness of
presumption under S.112 cannot be rebutted by DNA
test. The proof of non-access between the parties to
marriage during the relevant period is the only way to
rebut that presumption and DNA test is not to be
directed as a matter of routine, it is to be directed only in
deserving cases.
(8) So, looking to the above circumstances of the case, I
find no ground to invoke the extra ordinary jurisdiction of
this Court under S.482 Cr.P.C. Petition being devoid of
merits is hereby dismissed.
(M.A.Siddiqui)
JUDGE
/02/2011.
Jk.