K NEELAVENI Vs. S K SIVAKUMAR

JUDGEMENT

(1.) ON the basis of the complaint lodged by the defacto complainant/the petitioner herein a case was registered against the respondents 1 to 15 herein for offences under section 498 (A), 406 and 494 IPC. After completing investigation, charge sheet has been filed and the same has been taken on file as C. C. No. 169 of 2003 on the file of the learned Judicial Magistrate No. I. Chengalpattu. Pending trial, the investigating officer filed an application in C. M. P. No. 1006 of 2008 to subject the first accused, 15th accused and the child of the 15th accused for DNA test, contending that A1 and A15 lived as husband and wife and out of their relationship, a child was born and the DNA test is necessary to prove that there was a marriage between A1 and A15. The said petition was dismissed by the learned Judicial Magistrate, by her order dated 30. 06. 2008. The State has not preferred any revision, whereas the defacto complainant has filed the above Criminal Revision.

(2.) MS. S. Sathiachandran, learned counsel for the petitioner vehemently contended that DNA test for A1 and A15 and the child born to them is necessary to prove the offence under section 494 IPC. The learned counsel for the petitioner also relied on the decision of this Court reported in 2004 (5) CTC 182 (Bommi and another vs. Munirathinam ).

(3.) COUNTERING the said submissions, Mr. Murali, learned counsel taking notice for the accused 1 to 12/respondents 1 to 12 submitted that the alleged second marriage has to be proved as a matter of fact by adducing acceptable evidences and even assuming that the child was born to A1 and A15 out of their relationship that itself will not prove the factum of second marriage and therefore submitted that the order passed by the learned Judicial Magistrate is correct. In respect of his contention, learned counsel relied upon the decision reported in 2008 (1) MLJ (Crl.) 425 (Dr. Jayakumar @ Javid Kamal. . vs. . State represented by Sub Inspector of Police, Guduvancheri Police Station, Kancheepuram District and another". In the said decision in paragraph 6, it has been held as under:-