Ravi Kumar v. Geeta Devi

1. The present case and its factual matrix raises issues that travel beyond the questions of paternity and maintenance. It concerns the interplay between personal autonomy and legal responsibility, and whether a person can exercise the freedom to make personal choices and yet disown the consequences of those very choices when they later become inconvenient.

2. The present case concerns a situation where a man, despite being in a valid and subsisting marriage, is alleged to have lived with another woman in a relationship in the nature of marriage and, from such relationship, three children were allegedly born. Public documents and other evidence placed on record prima facie reflect him as the father of the said children. However, he now disputes their claim, denies paternity, opposes the conduct of a DNA test and seeks to avoid liability towards their maintenance, his principal concern being the possible impact on his own reputation and that of his legally wedded wife, who holds a public office.

3. The case also raises the question whether an apprehension of reputational harm to the adults involved can outweigh the concerns of children who seek to know their biological parentage and whose public records and lived experiences have, throughout, recognized a particular person as their father. The Court is called upon to examine whether, in such circumstances, the law should accord greater weight to the desire of an adult to avoid embarrassment or to the right of children to know their parentage, assert their identity and seek the legal consequences that may flow from such determination.

4. The present petition has been filed by the petitioner, seeking setting aside of the order dated 13.03.2024 [hereafter ‗impugned order‘], passed by the learned Principal Judge, Family Court (North- West), Rohini Court, Delhi [hereafter ‗Family Court‘], in MT NO. 56313/2016, titled ‘Geeta Devi v. Ravi Kumar’, under Section 125 of the Code of Criminal Procedure, 1973 [hereafter ‗Cr.P.C.‘].

5. Vide impugned order, the learned Family Court was pleased to allow an application filed by the respondent nos. 2 to 4 (children of respondent no. 1) under Section 45 of the Indian Evidence Act, 1872, and direct DNA test be conducted of the petitioner and respondent nos. 2 to 4, for ascertaining their paternity.

FACTUAL BACKGROUND

6. The facts leading to the filing of the present petition, as set out by the petitioner-Ravi Kumar, are that he is a resident of Munger, Bihar and had married Smt. Kumkum Devi on 06.02.1986 according to Hindu rites and ceremonies at Nalanda, Bihar. Out of the said wedlock, two children, namely PK and AK, were born, and the petitioner claims that he has throughout resided at Munger, Bihar and has never resided in Delhi.

7. It is the case of the petitioner that respondent no. 1-Geeta Devi had instituted a petition under Section 125 of the Cr.P.C. before the learned Family Court on 04.08.2014, claiming that she had married the petitioner on 16.05.1991 at Shakarpur, Delhi according to Hindu rites and ceremonies and that out of the said wedlock, respondent nos. 2 to 4 were born, in 1995, 1999 and 2002 respectively. In the said petition, respondent no. 1 alleged that she and the petitioner had lived together as husband and wife in Delhi and that the petitioner had abandoned her and the children in the year 2005 and had thereafter failed to maintain them. It was alleged that when the petitioner did not return even after a month, respondent no. 1 visited his native place and discovered that he had contracted another marriage with one Smt. Kumkum Devi. She further alleged that she was threatened by the petitioner‘s family and compelled to leave the village, and has since been residing separately and caring for the children on her own. In support of her claim, she had filed certain photographs and documents on record. The petitioner filed his written statement denying the entire case set up by the respondents and asserted that he had never married respondent no. 1, had never cohabited with her, and was already married to Smt. Kumkum Devi since the year 1986. According to the petitioner, the photographs and other documents relied upon by respondent no. 1 were forged and fabricated and respondent nos. 2 to 4 were not his children. In support of his defence, the petitioner relied upon documents pertaining to his marriage with Smt. Kumkum Devi and documents concerning their children and residence at Munger, Bihar.

8. It is further stated that upon learning of the proceedings under Section 125 of the Cr.P.C., the petitioner's wife, Smt. Kumkum Devi, instituted Matrimonial Case No. 51/2016 before the learned Family Court, Munger, Bihar, seeking a declaration regarding her marital status. The said proceedings culminated in a judgment and decree dated 25.07.2016, whereby the Family Court, Munger, Bihar declared Smt. Kumkum Devi to be the legally wedded wife of the petitioner and further held that no marital relationship existed between the petitioner and respondent no. 1. The petitioner thereafter moved an application before the learned Family Court at Delhi, relying upon the aforesaid decree and seeking dismissal of the proceedings under Section 125 of the Cr.P.C. However, vide order dated 05.02.2018, the learned Family Court observed that the issues raised by the petitioner could not be decided without the parties leading evidence. During the course of the proceedings, respondent no. 1 filed her evidence by way of affidavit and relied, inter alia, upon a photograph and her Aadhaar Card.

9. Subsequently, respondent nos. 2 to 4 filed the application under Section 45 of the Indian Evidence Act seeking a direction for conducting a DNA test of the petitioner and respondent nos. 2 to 4 for determination of their paternity. The petitioner opposed the said application by filing a reply.

10. By way of the impugned order dated 13.03.2024, the learned Family Court allowed the aforesaid application and directed that the DNA test of the petitioner and respondent nos. 2 to 4 be conducted, which has led to the filing of the present petition. While passing the said order, the learned Family Court inter alia observed that although the petitioner had denied his marriage with respondent no. 1 and the paternity of respondent nos. 2 to 4, respondent no. 1 had placed on record certain documents, including photographs depicting the petitioner with respondent no. 1 and the children, photographs of birthday celebrations, family photographs, voter identity cards, school certificates of the children, and ration card, showing the petitioner as the father of respondent nos. 2 to 4. The relevant portion of the impugned order reads as under: ― Petitioner‘s case is that she was married to respondent according to Hindu rites and customs on 16.05.1991 at Khatik Samaj Mandir, H Block, Shakurpur, Delhi and out of the wedlock three children i.e., petitioner no. 2 to 4 were born. Respondent despite means was denying to maintain them. In the present application, it is stated that respondent had been denying the marriage with petitioner no. 1 and also the paternity of petitioner no. 2 to 4. Therefore, requested that respondent be directed to undergo DNA test in this regard. Respondent‘s case is that he had no acquaintance with petitioner no. 1 and he had never resided with her and therefore there was no question of his relation with petitioners in any manner. Respondent‘s main objection to the application is 1) that petitioners had no prime facie case in their favour 2) the petition had been filed in connivance with the opponents of the respondent‘s wife who was a politician and therefore petitioners‘ main aim was to malign and tarnish his image and

3) the application was not maintainable as it was against the presumption u/s 112 Indian Evidence Act. In regard to the first objection, petitioner has placed on record her marriage photographs with respondent, also filed photographs showing respondent celebrating birthday of his children with relatives. She has also filed family photograph wherein all the three children along with petitioner no. 1 and respondent are clearly visible. In addition petitioner has also filed the voter ID card, the school certificates of the children, photocopy of ration card wherein respondent is shown as the father of petitioners 2 to 4. In addition to this, petitioner has also examined PW[2] Smt. Vijay Laxmi the landlady of the parties, who has stated that respondent was her husband‘s friend and had been residing in their premises. Thereafter, he had brought petitioner no. 1 to the premises after marriage and in their premises petitioner no. 2 to 4 were born. People in the entire gali were knowing this fact. Respondent on the other hand has filed the photograph of his marriage with Kumkum Devi and copy of the judgment passed by Ld. Principal Judge, Family Court, Munger, Bihar declaring Kumkum Devi as legally wedded wife of Ravi Kumar (respondent herein) and the two children Preeti Kumari and Avinash Kumar to be born out of the said wedlock and Geeta Devi (petitioner no. 1 herein) not being the wife of defendant no. 1. This judgment only declares the legal status of petitioner no. 1 and respondent as not being husband and wife but no presumption can arise from the same that respondent had no access to the petitioner no. 1 at any point of time relating to the period in question or there was no possibility of petitioner nos. 2 to 4 being born out of the relation between petitioner no. 1 and respondent. This issue would be matter of trial but for the purpose of prime facie case petitioner has placed enough material on record to show that petitioner no. 2 to 4 could have been both out of the relation with respondent. In regard to the respondent‘s 2 and 3 objections, petitioner no. 2 to 4 have an important right to know about their paternity and since the legal status of petitioner no. 1 as wife of respondent has been negated by the concerned Family Court at Munger, Bihar therefore they have a right to explore the means to establish their paternity as claimed by them. The judgments cited by the Ld. counsel for respondent also support petitioner‘s case and in the judgment of Gautam Kundu Vs. State of West Bengal (Supra) has held that the test for determining paternity cannot be allowed as matter of routine but in appropriate cases where there is strong prime facie case and keeping in mind the consequences of the said test vis-a-vis the child‘s right and their status, such test can be allowed in appropriate cases. In the present case, the petitioner no. 2 to 4 who are now major have themselves filed the application and have also shown strong prime facie case in their favour by producing documentary evidence as well as oral evidence of PW[2] in this regard. Accordingly, the application is allowed. Let a notice be issued to the SHO PS Shakurpur to depute a police personnel, not below the rank of ASI, to appear along with the petitioners no. 2 to 4 and respondent before the MS/HOD Forensic Medicines, BSA Hospital. The MS/HOD Forensics Medicines, BSA Hospital is directed to collect the requisite sample for DNA analysis of the parties concerned, to ascertain the paternity of the petitioner NO. 2 to 4, who shall appear before him. Thereafter, ASI concerned shall get the samples sealed, collect them and deposit the same in FSL, during the minimum time required. The director, FSL shall either call the ASI concerned to collect the report or shall send the report directly to this court, latest within one month.

SHO PS Shakurpur is further directed that after collection and deposit of the samples in FSL, the concerned ASI shall give due intimation to this court immediately. Put up for remaining PE on 26.04.2024.‖ SUBMISSIONS BEFORE THE COURT

11. The learned counsel appearing for the petitioner assails the impugned order on the ground that the learned Family Court has passed the same in a mechanical manner without proper appreciation of the facts and settled principles governing the exercise of power to direct DNA testing. It is argued that the impugned order is contrary to the law laid down by the Hon'ble Supreme Court in Goutam Kundu v. State of West Bengal: (1993) 3 SCC 418 and that DNA testing cannot be directed as a matter of course. It is further contended that the respondents had failed to make out a fit case warranting DNA examination and that the application under Section 45 of the Indian Evidence Act was frivolous, premature and an abuse of the process of law. According to the petitioner, the proceedings have been initiated in collusion with the political opponents of his wife, Smt. Kumkum Devi, with the sole object of harassing the petitioner and tarnishing the reputation of his family. The learned counsel argues that the learned Family Court has failed to appreciate that the matter was still at the stage of evidence, respondent no. 1 was yet to complete her cross-examination and the petitioner had not even led his evidence. It is argued that the authenticity and veracity of the documents relied upon by the respondents had not yet been tested and, therefore, there was no material on record necessitating the direction for DNA testing at such a stage. It is further submitted that there is ample material on record to demonstrate that the petitioner had no access to respondent no. 1 and that he neither cohabited with her nor had any relationship with her. In this regard, it is pointed out that the petitioner had been married to Smt. Kumkum Devi since 06.02.1986 and that a son, Avinash Kumar, was born out of the said wedlock in the year 1994 at Munger, Bihar. It is contended that the respondents have not placed on record any document to show that the petitioner was residing in Delhi or living with respondent no. 1 at any point of time. The learned counsel also argues that no weight ought to have been attached to the ration card, voter identity card and school certificates relied upon by the respondents since the said documents were brought on record after several years of the institution of the proceedings, are yet to be proved in accordance with law and, according to the petitioner, are forged and fabricated. It is also contended that respondent no. 1, in her evidence, had formally exhibited only two documents, i.e. a photograph and her Aadhaar Card, and that the remaining documents had neither been exhibited nor tested during cross-examination. It is further submitted that the learned Family Court has failed to assign any reason for disregarding the judgment and decree dated 25.07.2016 passed by the Family Court, Munger, Bihar, whereby Smt. Kumkum Devi was declared to be the legally wedded wife of the petitioner and it was held that no marital relationship existed between the petitioner and respondent NO. 1. It is also argued that respondent no. 1 herself had admitted a previous marriage but had failed to disclose the particulars of her previous husband or to plead that the said marriage had been dissolved or that she had no access to her previous husband at the time of the birth of respondent nos. 2 to 4. In these circumstances, it is contended that the learned Family Court exceeded its jurisdiction in directing DNA testing and that the impugned order deserves to be set aside.

12. Per contra, the learned counsel appearing for the respondents submits that in view of the petitioner's persistent denial of both his marriage with respondent no. 1 and the paternity of respondent nos. 2 to 4, the respondents were constrained to file an application under Section 45 of the Indian Evidence Act seeking DNA testing for scientific determination of paternity. It is argued that the said application was filed to facilitate the discovery of truth and for an effective adjudication of the proceedings under Section 125 of the Cr.P.C., particularly when the petitioner had categorically denied the relationship despite documentary and oral evidence having already been placed on record. The learned counsel further contends that the learned Family Court, upon considering the pleadings and the material on record, rightly found that a prima facie case existed warranting scientific determination of the issue and, therefore, correctly allowed the application and directed the conduct of DNA testing. It is also submitted that the petitioner cannot derive any benefit from the judgment and decree dated 25.07.2016 passed by the learned Family Court, Munger, Bihar, since the same has been set aside by the High Court of Judicature at Patna in Miscellaneous Appeal No. 643 of 2017 vide order dated 11.11.2024 and the matter has been remanded for fresh adjudication. It is contended that the said decree had been passed ex-parte and the material relied upon by respondent no. 1, including the marriage certificate and photographs allegedly evidencing her marriage with the petitioner, could not be considered therein. Consequently, the said decree cannot be relied upon by the petitioner to defeat the present proceedings. The learned counsel for the respondents further submits that the direction for DNA testing goes to the very root of the controversy in the proceedings under Section 125 of the Cr.P.C., since the petitioner has consistently denied not only his marriage with respondent no. 1 but also the paternity of respondent nos. 2 to 4. It is contended that in such circumstances, determination of paternity is foundational to the adjudication of the respondents‘ claim for maintenance and, therefore, the learned Family Court has rightly exercised its discretion in directing scientific examination. It is further argued that where paternity is directly in issue, the Family Court is competent to determine such question as incidental and necessary for deciding the claim for maintenance. The learned counsel also argues that respondent no. 1 has placed sufficient prima facie material on record demonstrating cohabitation and access between the parties. In this regard, reliance is placed upon marriage and family photographs, birth certificates and other official documents showing the petitioner as the father of respondent nos. 2 to 4, school records reflecting the petitioner‘s parentage, and oral evidence, including the testimony of the landlady, to establish that the petitioner and respondent no. 1 had resided together. It is, therefore, contended that in view of the petitioner's categorical denial of both marriage and paternity despite the aforesaid material, the learned Family Court rightly considered scientific determination of paternity to be essential for the effective adjudication of the maintenance proceedings.