PARTHA MAJUMDAR Vs. SHARMISTHA MAJUMDAR

JUDGEMENT

(1.) The instant revisional application has been filed by the husband petitioner under Sections 397/401 read with Section 482 of the Code of Criminal Procedure (hereinafter called the Code) assailing the order dated 29-9-2003 passed by the learned Judicial Magistrate, 5th Court, Barrackpore in Misc. Case No. 212 of 2002 thereby refusing the prayers of the petitioner for DNA Test of petitioner, his wife, male child and one Sankar Biswas and also to accept supplementary written objection filed by him and to pass order that this petitioner is not pressing the previous written objection tiled by him.

(2.) The facts of the case giving rise to the instant revisional application, as disclosed in the revisional application, in brief, are as follows : The petitioner was married with O.P. No. 1 on 12-2-2001 and thereafter on 26-2-2001 the petitioner took away his wife to his working place at Madhya Pradesh for leading marital life. The O.P. wile developed an illicit and adultery relationship with one Sankar Biswas, one of his colleagues and his wife used to enjoy frequent visit of Sankar Biswas at his quarter during his absence. One day after going back from office he found his wife and Sankar Biswas lying on bed and he asked Sankar Biswas to leave his quarter at once and Sankar Biswas at the time of going away threatened him with dire consequences. The petitioner has bona fide apprehension that the child begotten was out of extra marital and continuous adulterous relationship of his wife with Sankar Biswas. Soon thereafter, his wife left his quarter at Madhya Pradesh with Sankar Biswas and came back to her paternal home at Dakshineswar. On 3-12-2001 the O.P. No. 1 wife gave birth to a male child and on 11-3-2002 she came back to her matrimonial home with her minor child. Thereafter on 17-4-2002 the O. P. wife left the matrimonial home with her minor child without informing his parents or to him. Thereafter, the O.P. wife as petitioner filed an application under Section 125 of the Code against him praying for maintenance @ Rs. 1500/-per month for herself and @ Rs. 1000/- per month for the minor son. The learned Magistrate by order dated 5-3-2003 directed payment of Rs. 1000/- as interim maintenance in favour of the wife but did not grant any interim maintenance in favour of the minor child. The petitioner who is opposite party in the Court below filed a supplementary written objection before the learned Magistrate praying for DNA examination of the minor child and for him alleging that the child was born due to the illicit and illegal cohabitation between the petitioner wife and Sankar Biswas as they are still living in adultery. The petitioner as O.P. also filed an application praying for stay of all further proceeding including order of Interim maintenance. The learned Magistrate by his order dated 29-9-2003 rejected all of his applications and prayers and hence the instant revisional application.

(3.) Mr. Ajit Kumar Panja, learned senior advocate appearing for the husband petitioner contended that after the marriage when he took away his wife at his place of work, she soon developed intimacy with one Sankar Biswas, one of his colleagues and their intimacy grew into illicit relationship. One day after coming back to home from office he found his wife and Sankar Biswas lying on bed. His wife the O.P. No. 1 gave birth to a male child on 3-12-2001 and he has bona fide apprehension that the said child was begotten out of the extra marital and continuous adulterous relationship of his wife with Sankar Biswas. The learned Magistrate was completely in error by rejecting the subsequent written objection filed by him and to pass an order that the previous written objection filed by him should be treated as not pressed. The learned Magistrate also failed to understand the importance of DNA Test. If the DNA Test of the child, his wife, himself and Sankar Biswas are taken, the report of the DNA Test will solve all the controversies and if after DNA Test it is found that the child was born out of cohabitation of petitioner and his wife all the apprehension in the mind of the petitioner would be removed and he would be very free to lead a happy and marital life with his wife and child. All the confusion and the suspicion in his mind regarding birth of the child would be removed and he would be free of tension and anxiety and would be able to live a very happy marital life with his wife. The Supreme Court very recently in the case of Sharda v. Dharampal observed that a matrimonial Court has the power to order a person to undergo medical test. Passing of such an order by the Court would not be inviolation of the right to personal liberty under Article 21. The Supreme Court further observed that, "(1) In any civil proceeding in which the parentage of any person falls to be determined, the Court may either of its own motion or on an application by any party to the proceedings give a direction (a) For the use of scientific tests to ascertain whether such tests show that a party to the proceeding is or is not the father or mother of the person; and (b)) for the Inking within a period specified in the direction, of bodily samples from all or any of the following, namely, that person, or any parly who is alleged to be the father or mother of that person or any other parly to the 'proceeding."