Dismissed

Marimuthu v. Arangu.Thamizhisai

Madras HC28 Nov 2024CRP/4742/2024

Case brief

AI extract

What is this about?

The High Court dismissed a civil revision petition challenging a lower court's order to conduct a DNA test under the Domestic Violence Act. The judge held that the Magistrate had jurisdiction to order the test when paternity was directly in issue, distinguishing it from other precedents.

What did the court decide?

Civil revision petition dismissed; costs of Rs. 25,000 awarded to respondent; connected miscellaneous petition closed.

Marimuthu Vs Arangu.Thamizhisai — Child Custody and Guardianship | Madras HC (2024)

¶1

C.R.P.(PD)No.4742 of 2024

¶2

IN THE HIGH COURT OF JUDICATURE AT MADRAS

¶3

DATED: 28.11.2024

¶4

CORAM :

¶5

THE HONOURABLE MR. JUSTICE V. LAKSHMINARAYANAN

¶6

C.R.P.(PD)No.4742 of 2024 and C.M.P.No.26513 of 2024

¶7

Marimuthu .. Petitioner

¶8

Versus

¶9

Arangu.Thamizhisai .. Respondent

¶10

Civil Revision Petition is filed under Article 227 of the Constitution of India, to set aside the docket order dated 02.07.2024 passed by the Court of Additional Mahila Court of Krishnagiri in Crl. M.P. No. 3620 of 2024 in D.V.C. No. 31 of 2023 and consequently set aside all further proceedings in Crl.M.P.No.3620/2024 from the records of Court of Additional Mahila Court of Krishnagiri.

¶11

For Petitioner : Mr.G.P.Hari

¶12

¶13

https://www.mhc.tn.gov.in/judis

¶14

1/10

¶15

C.R.P.(PD)No.4742 of 2024

¶16

O R D E R

¶17

This civil revision petition arises against the order of the learned Judicial Magistrate, Additional Mahila Court of Krishnagiri in

¶18

Crl.M.P.No.3620 of 2024 in D.V.C.No.31/2023 dated 02.07.2024.

¶19

2.For the sake of convenience, the parties will be referred to as husband and wife.

¶20

3 . The civil revision petitioner is the husband. He is the respondent in the domestic violence case. He solemnized his wedding with the respondent herein. From the wedlock, two children were born. On account of disputes and differences, the parties separated. The dispute arose since the husband questioned the paternity of the 2^nd child (X) born to the wife. The wife approached the Protection Officer by way of complaint on 08.11.2023. The said complaint was responded to, by the husband. Thereafter, the wife filed a petition under Sections 9 (b) and 37 (2)(c) of Protection of Women from

¶21

Domestic Violence Act, 2005. The gist of the complaint is as hereunder:

¶22

https://www.mhc.tn.gov.in/judis

¶23

"vd; fzth; ehd; fw;g;gkhf ,Ug;gJ bjhpe;Jk; me;j FHe;ij ntW egh; FHe;ij vd fUjp vd;ida[k; vd; tapw;wpy; ,Ue;j FHe;ija[k; kpft[k; bfhLik bra;jhh;/ nkYk;

¶24

2/10

¶25

C.R.P.(PD)No.4742 of 2024

¶26

vd; tapw;wpy; ,Ue;j FHe;ij vd; cld; gpwe;j rnfhjuUld; bjhlh;g[ bfhz;L bgw;w FHe;ij vd;W Twp vd;id moj;J Jd;g[Wj;jp tPl;il tpl;L tpul;odhh;/ ,J ehs; tiu vd; fzth; vdf;Fk; vd; FHe;ijf;Fk; ve;j xU cjtpa[k; bra;atpy;iy/"

¶27

The husband entered appearance and filed a counter to the said petition. Thereafter, he also filed his affidavit of assets and liabilities before the learned Magistrate. Since the husband had repeatedly claimed that the child was not born to him, the wife was at her wit's end. Even before the Domestic Violence Complaint was presented, it transpires that the husband, wife and child underwent a D.N.A. (parentage test) on 18.07.2023.

¶28

Perhaps, on account of the fact that allegations persisted despite the report, the wife had given the complaint to the Protection Officer. The husband, in his counter yet again reiterated the plea regarding the paternity of the child. The respondent being left with no other option, filed an application in Crl.M.P.No.3620 of 2024, seeking the Court to order DNA tests for the child (X) and the respondent. She sought the test to be conducted by the Scientific Officer, Regional Forensic Department, Chennai in order to substantiate her plea of parentage of the child. Thus, seizing the opportunity that the wife had come up with such application, the petitioner tendered no

¶29

https://www.mhc.tn.gov.in/judis

¶30

3/10

¶31

C.R.P.(PD)No.4742 of 2024

¶32

objection. Consequently, the Trial Court after recording the fact that the husband has no objection for the petition being allowed, ordered a DNA test. An Advocate was appointed as a Commissioner, who collected the blood samples of the child, the petitioner, and the respondent. Thereafter, the matter was referred to Forensic Science Department. The Forensic Science Department submitted a report that the paternity of the child (X) stands proved as having been born for the petitioner and the respondent. This report was filed before the Court on 12.08.2024. After the report had been filed, the present civil revision petitioner has come up before the Court, challenging the order of the learned Magistrate dated 02.07..2024.

¶33

I heard Mr. G.R. Hari for the civil revision petitioner.

¶34

Mr. G.R. Hari pleads that in terms of the Protection of Women from Domestic Violence Act, 2005 (hereafter referred to as Act 43 of 2005), there is no power with the Magistrate to order DNA test. In addition, he pleads that the Court should not order DNA tests when it involves the right of the child , which he pleads is inviolable.

¶35

8.I pointed to Mr. Hari that the civil revision petitioner had tendered no

¶36

https://www.mhc.tn.gov.in/judis

¶37

4/10

¶38

C.R.P.(PD)No.4742 of 2024

¶39

objection for the DNA test to be conducted.

¶40

In response, Mr. Hari submitted that where the Court has no jurisdiction, even if an order has been passed on consent, it can still be interfered with, in exercise of revisional powers under Article 227 of Constitution of India.

¶41

10 . I have carefully considered the submissions of Mr. G.R. Hari and gone through the records.

¶42

As the issue of jurisdiction has been raised by Mr. G.R. Hari, I necessarily have to go through the provisions of Act 43 of 2005. Under the said Act, the manner and disposal of an application filed under Section 12 of the Act is dealt with, under Section 28. A Proceeding under the D.V.C.Act is initiated by way presenting an application to the Magistrate. The petition must specifically point out the instances of domestic violence that the aggrieved woman (as defined under Section 2(a) of the Act) had suffered at the hands of the respondent. As to what is the domestic violence is dealt with under Section 3 of the Act. This definition is wide in its character. If any aggrieved woman is harmed, injured or endangered for health, safety life etc., whether physical https://www.mhc.tn.gov.in/judis

¶43

5/10

¶44

C.R.P.(PD)No.4742 of 2024

¶45

or mental or tends to do so, and this abuse includes causing physical, sexual, verbal or emotional or economic abuse, it satisfies the requirements of the Act.

¶46

The case of the wife is that the husband had alleged that the child that born during the subsistence of marriage is not that of the civil revision petitioner. If that be the situation, then in my opinion, the wife would certainly undergo mental as well as emotional abuse on these allegations. Therefore, the requirements of Section 3 are attracted to the facts of the present case.

¶47

As to how the learned Magistrate should deal with the application under Section 12 is governed by Section 28. He is generally required to follow the provisions of the Criminal Procedure Code. However, considering the delicate nature of matters involved in the litigation, as well as since the legislation has been brought for the Protection of Women, the Parliament has incorporated Section 28 (2). It has left the procedure that the Court has to adopt, in order to arrive at a just conclusion, entirely within the discretion of the learned Magistrate dealing with the application. Therefore, if the issue that is, presented before the Court touches upon the legitimacy or otherwise of a child, Magistrate does posses the power to order DNA test.

¶48

https://www.mhc.tn.gov.in/judis

¶49

6/10

¶50

C.R.P.(PD)No.4742 of 2024

¶51

In fact for the purpose of disposal of this revision, this finding along

¶52

with the no objection that had been tendered by the husband would suffice. However, since Mr. Hari had taken the effort of collating the Judgment of Supreme Court on DNA test, I am constrained to deal with these issues also.

¶53

Mr. Hari places heavy reliance upon Bhabani Prasad Jena Vs.Convenor Secretary, Orissa State Commission for Women & Anr, 2010

¶54

(8) SCC 633 and Aparna Ajinkya Firodia Vs. Ajinkya Arun Firodi a (2024 7

¶55

SCC 773) to urge that DNA test ought not to have been ordered by the Court as a course. This requires me to deal with two Judgments.

¶56

In Bhabani Prasad , the case that was presented before the

¶57

Supreme Court was whether the State Commission for Women, constituted under Section 3 of the Orissa State Commission for Women Act of 1993, had the jurisdiction to order DNA test. The Supreme Court referred to Section 10 of the said legislation and came to a conclusion that the State Commission for Women does not have jurisdiction to order DNA tests. It was pointed out that while the legislation had given vast powers to the State Commission, it had not gone so far to give the jurisdiction to the State Commission, to make an order as it did in that case. Therefore, the entire case turned on the issue whether

¶58

https://www.mhc.tn.gov.in/judis

¶59

7/10

¶60

C.R.P.(PD)No.4742 of 2024

¶61

the State Commission had jurisdiction. The Supreme Court, having come to the conclusion that the State Commission for Women, did not have jurisdiction upset the Judgment of the High Court, which had confirmed the order of the Commission. I do not see how this judgment will be helpful to the civil revision petitioner.

¶62

With respect to the 2^nd Judgment in Aparna Ajinkya Firodia , the Supreme Court had summarised the power of the Court to order DNA test. In paragraph 43 of the said Judgment, the Court did not hold that a Court or Tribunal dealing with the matrimonial dispute does not possess jurisdiction to order DNA tests. It held that the Court would not be justified in ordering DNA in a case where the paternity of child is not directly in issue but mere collateral to the said proceedings. The view expressed by Hon'ble Ms. Justice Nagarathina was confirmed by Hon'ble Mr. Justice Ramasubramanium in holding that if a party is able to prove the access between the couple then under Section 112 of the Indian Evidence Act, the issue of ordering a DNA test does not raise. I should immediately point out here that case arose in the case of divorce that has been presented by the husband, against the wife alleging adultery.

¶63

https://www.mhc.tn.gov.in/judis

¶64

8/10

¶65

C.R.P.(PD)No.4742 of 2024

¶66

It was in those circumstances, the Court came to the conclusion

¶67

that in order to prove the adultery of the wife, the question of paternity of the

¶68

child is irrelevant.

¶69

19.Such is not a situation in the present case. The wife felt that she had been emotionally abused on account of the allegations set forth above. It was in those circumstances that the wife filed the application for a DNA test. Having come to the conclusion that the Court has jurisdiction, and the facts that the DNA tests to be performed, I pointed to Mr. G.R. Hari that this plea is like a person shooting his parents and then pleading for mercy on the ground that he is an orphan.

¶70

It was the husband who questioned the paternity of the child and it was the husband who tendered "no objection" for the application. It was the husband, who cooperated for handing over the samples to the Advocate Commissioner to take the other two samples for DNA tests. The sudden love for the child has sprung about after the DNA test has gone against him. I am sure that his love and affection, which is suddenly oozing from every pore in the skin of the husband would not have come, had the DNA test gone in favour of his plea.

¶71

https://www.mhc.tn.gov.in/judis

¶72

9/10

¶73

C.R.P.(PD)No.4742 of 2024

¶74

LAKSHMINARAYANAN, J

¶75

arr

¶76

In so as the plea of Mr. Hari that the Court should have considered the interest of the child before ordering DNA test is concerned, I do not find any merit in this case. The entire dispute arose on account of the birth of the child. Therefore, I have to pass no other order than to dismiss the civil revision petition. Taking into consideration the conduct of the petitioner, the civil revision petition is dismissed at costs of Rs.25,000/- to be paid by the petitioner to the respondent/wife. No costs. Consequently, connected Miscellaneous Petition is closed.

¶77

28.11.2024

¶78

Index:Yes/No Speaking order/Non-speaking order Neutral Citation:Yes/No arr

¶79

¶80

The Additional Mahila Court, Krishnagiri.

¶81

CRP (PD) No. 4742 of 2024

¶82

https://www.mhc.tn.gov.in/judis

¶83