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Lallu Lal Patel vs Smt. Anar Kali @ Tannu Bai Yadav on 21 February, 2011

Madhya Pradesh High Court
Lallu Lal Patel vs Smt. Anar Kali @ Tannu Bai Yadav on 21 February, 2011
  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
-2-

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.
-3-

(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.

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