KUMARAN NAIR Vs. BHARGAVI

JUDGEMENT

(1.) In a proceeding under S.125 of the Code of Criminal Procedure (herein-after referred to as 'the Code') respondents 1 and 2 (mother and minor child) claimed maintenance from the petitioner who denied marriage and paternity. A letter, Ext. P2 marked subject to proof, denied by the petitioner, but having bearing on the question of paternity and marriage, was sought to be sent to the expert after obtaining the specimen signature of the petitioner. This petition filed under S.482 of the Code is to quash the order allowing the prayer.

(2.) The order could have been passed only under S.73 of the Indian Evidence Act, which reads:

(3.) Art.20(3) of the Constitution of India provides that no person accused of any offence shall be compelled to be a witness against himself. A person against whom a proceeding under S.125 of the Code is pending cannot be a person accused of any offence. What is involved is only enforcement of a liability and not punishment for a crime. Further, a direction to give the specimen handwriting or signature for comparison will not amount to testimonial compulsion also. Art.20(3) does not say that an accused person shall not be compelled to be a witness. It only says that he shall not be compelled to be a witness against himself. By giving specimen handwriting or impression he is not giving evidence against himself. It becomes evidence against him only when after due comparison with it and formation of opinion it is ultimately found that the disputed writing or impression is that of himself. S.73 of the Evidence Act therefore, does not offend Art.20(3) of the Constitution because by giving a direction under the section to give the specimen handwriting or signature or impression the court does not compel him to be a witness against himself. This position of law is well settled and therefore there was no argument based on Art.20(3) of the Constitution.