HARINARAIN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) TWO pregnant women - Smt. Kanchan Devi wife of Hari Narain and Smt. Gulab wife of Handali got admitted in a maternity facility run by one Pushpa Bhatnagar, a Nurse. On 6. 11. 99, both of them delivered. It is alleged by Harinarain that his wife Smt. Kanchan Devi was told that she as well as Smt. Gulab had delivered a female child each. However, lateron it transpired that one of the children was a male child and that was in the custody of Smt. Gulab wife of Handali. On 9. 11. 99, an FIR was registered with the Police Station Nangal Rajawatan, District Dausa, by Hari Narain alleging that the male child was in fact delivered by his wife Smt. Kanchan Devi but it was exchanged with the female child born to Smt. Gulab, by the Nurse. On the FIR being lodged, case was registered by the police and investigation started.

(2.) AN application u/sec. 97 Cr. P. C. was moved by Hari Narain before the Additional Chief Judicial Magistrate, Dausa on 15. 1. 2000 which was not entertained holding it to be not maintainable. However, again an application was made on 17. 1. 2000 under Sec. 97 Cr. P. C. which was entertained by the Magistrate and on 21. 1. 2000, it was rejected and a revision application was filed against the order of rejection of the application, before the learned Sessions Judge, Dausa who rejected the revision application vide his order dated 16. 2. 2000. Against the rejection of the revision petition. Harinarain and Smt. Kanchan Devi preferred a petition u/s. 482 Cr. P. C before this Court which was registered as S. B. Criminal Misc. Petition No. 117/2000.

(3.) SO far as the Civil Revision Petition is concerned, before granting interim custody of the child, the Court had to examine whether there was a prima facie case of holding that the male child was delivered by Smt. Kanchan. Admittedly, immediately after birth, the child was in the custody of Smt. Gulab. He continued to be in her custody from 6. 11. 1999 to 15. 8. 2000 - for almost a period of nine months. The main application u/sec. 7 of the Guardian and Wards Act, 1890 is yet to be decided on merits. The application for temporary custody of the male child could have been moved u/sec. 12 or 25 of the Act. It appears that the Court has made this order u/sec. 12 of the Act. In any case, what could have been the paramount consideration before the Court was the welfare of the minor. When once the learned District Judge had decided as the Sessions Judge that without DNA test it could not be said with any amount of certainty that the male child belonged to Harinarain and his wife, he should not have concluded even tentatively, on the basis of another report by the Forensic Science Laboratory, that even without DNA test, it could be concluded safely that the male child belonged to Hari Narain and his wife. Going back on his own decision as a Sessions Judge, the Distt. Judge has concluded that the DNA test was not essential in the case. Moreover, the learned Distt. Judge did not consider the fact that the child was in the custody of Smt. Gulab and was being fed by her right from 6. 11. 1999 till he decided the matter on 26. 7. 2000. Thus, for more than eight months, the child was in the custody of Smt. Gulab and heavens would not have fallen if the child remained in the custody of Smt. Gulab till the trial was concluded. The Court forgot that it was not disposing of any movable property like a motor cycle, or a tractor, while giving interim custody of the child to one or the other lady. Rightly or wrongly, if the child had continued right from the date of birth in the custody of Smt. Gulab, it was in the interest of the child to continue in her custody till the disposal of the case. The court could also have directed DNA test being conducted at an early date and with the help of that, and such other evidence as was led before it, the Court could have decided finally the application u/sec. 7 of the Guardian and Wards Act.