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LEGITIMACY OF CHILD: SCIENTIFIC DETERMINATION OR LEGAL PRESUMPTION

“Mater semper certa est”: The mother is always certain”, while the father is not, can be a scientific theory of certainty. “Pater est quem nuptiae demonstrant” :  the father is he, whom the nuptials indicate has gained a sturdy legislative recognition which resulted in the formulation of the rule of evidence envisaged in Section 112 of the Indian Evidence Act, 1872. This is also certain that legal presumption under said section 112 is binding to all courts being the land of law.

In recent days, the legal fraternity is pulsating with the perception that the courts including apex court is permitting paternity test in case of any dispute raised by either spouse regarding the paternity of child without examining the issue of access between the spouses. The examination of various leading judgement reveals following with regards to paternity dispute:

 

Case Law Facts Regarding Access between Spouses during Relevant period of Conception of child Paternity Test Permitted or Not Remarks
Goutam Kundu vs. State of West Bengal and another, (1993) 3 SCC 418

 

Non-Access could not be proved by the appellant husband during the conception period. Paternity test not permitted Case of maintenance under section 125 of CrPC.
Kamti Devi and another v. Poshi Ram, AIR 2001 SC 2226

 

Non-Access was proved by the respondent husband during the conception period Paternity test was not required as non-access was proved Case of right of property of father by mother for illegitimate son.
Banarsi Dass v. Teeku Dutta, (2005) 4 SCC 449 Case of succession Dispute Paternity test was denied DNA test required in deserving case.
Sham Lal @ Kuldeep vs. Sanjeev Kumar and others,

(2009) 12 SCC 454

 

Access of father to plaintiff mother not denied by the defendant brother and sister (para 40) Paternity test was not required as access was not denied. Dispute of sncestral property between brothers and sisters.
Bhabani Prasad Jena vs Convenor Secretary, Orissa State Commission for Women and another, (2010) 8 SCC 633

 

Access or its otherwise was not argued by the appellant husband Paternity test ordered by High Court set aside Case with regard to divorce proceeding
Nandlal Wasudeo Badwaik vs. Lata Nandlal Badwaik and another, (2014) 2 SCC 576. Access was in dispute, wife claiming access whereas the husband denying it. Paternity Test was already carried out on order of coordinate bench. Case of maintenance under section 125 of CrPC.
Dipanwita Roy vs Ronobroto Roy, CIVIL APPEAL NO.   9744    OF 2014, S.C. Access was in dispute, wife claiming access whereas the husband denying it Paternity Test was permitted Case of Divorce on the ground of adultery.

There are various High Court judgment citing and taking support from above cited apex court judgement in cases of divorce, maintenance issue of wife and succession of property. The moot point in catena of judgement is principle of legal presumption under section 112 of the Indian Evidence Act, 1972 or the reasonable and flinching evidence on record to create doubt regarding the paternity of child. In case of undisputed access between spouse during conception period, it is golden rule that test for paternity cannot be ordered by the court.

The Hon’ble Delhi High Court in case of ‘W’ vs ‘H’ & Anr (26 August, 2016) MAT.APP. (F.C.) 17/2016 has analysed the issue raised in such litigation under following consideration:

  1. Direction for compelling a medical examination or a DNA test to establish any fact – when to be made? (paras 26 to 33) 
  2. Displacement of the conclusive presumption under Section 112 of the Indian Evidence Act – Standard of proof to do so? (paras 34 to 43)
  3. What is the meaning of “access” and “non-access”(paras 44 to 54)
  4. Summation of the principles laid down by judicial precedents on consideration of an application for an examination (para 55)
  5. Prima facie case (paras 56 to 59)
  6. Whether the case of non-access was specifically pleaded by the respondent no.1 (paras 60 to 67)
  7. Whether there is non-traverse by the wife of the husband’s pleadings, and thereby, deemed admission thereof? (paras 68 to 90)
  8. Is the court bound to pass orders premised on admissions of parties? (paras 91 to 102)
  9. Admissions of paternity by the husband on court records – impact on “prima facie case” (paras 103 to 112).
  10. Conduct of the husband despite his allegations against his wife – impact thereof (paras 113 to 134) Concealment and statement of wrong facts – whether impacts consideration of prima facie case? (paras 135 to 141)
  11. DNA report dated 23rd April, 2015 – whether supports a prima facie case in favour of the respondent no.1 – husband? (paras 142 to 153)
  12. In the facts of the present case, effect of the presumption under Section 112 of the Indian Evidence Act (paras 154 to 168)
  13. Ensuring the Constitutional rights of the child (paras 169 to 175)

In conclusion, the Hon’ble Delhi High Court in this case has stated following:

  

  1. ‘H’ – respondent no.1 husband has not pleaded “non-access” to the appellant wife or “no opportunity” at the time when Baby ‘X’ could have been conceived. On the contrary, he has admitted “access”. ‘W’ – the appellant wife has effectively denied the pleas of adultery.

 

  1. ‘H’ has failed to make out a prima facie case justifying an order for compelling Baby ‘X’ to give a sample for a DNA examination. The repeated admissions of paternity by ‘H’ in his pleadings, affidavit and his statement on oath in support on judicial record militate against a prima facie case in favour of ‘H’ for making the order prayed for. The husband ‘H’ has made admissions of paternity in public records of the Registrar of Births as well as bank record. No explanation was tendered before the ld. Family Court Judge or before us. The respondent no.1 has concealed material facts; is guilty of mis-statement before the Family Court and his conduct post-conception of the child do not support a prima facie case in his favour justifying the impugned order. The respondent no.1 has also not established imminent need for the order or that such order was at all necessary for a just decision of the case. The impugned order is unreasoned, contrary to law and unsustainable.

The various court has deliberated on issue of paternity but days are not far off when people will start disputing maternity also in this scientific age, when ovum donation and surrogacy is becoming common practice.

Rajni Sinha

Advocate High Court

7738080174

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Triple Talaq: Constitutional Validity

The constitutional validity of “Triple Talaq” has been referred to Constitutional bench in case of Muslim Women’s Quest for Equality Vs Jamiat Ulma-I-Hind (Suo Moto W.P. (Civil)-2 of 2015) along with host of other petition by Apex Court for regular hearing from 11th May, 2017.
Earlier, the All India Muslim Personal Law Board (AIMPLB) has filed the affidavit in above stated Suo moto petition and also identical affidavit in other bunched case (including W.P. (Civil)- 118/2016) inter alia opposing that Personal Law cannot be challenged as violative of Part III of the Constitution.
However, the Union Government through its affidavit had submitted the following questions to be considered by the Apex court:

Whether the impugned practices of talaq-e-biddat, nikah halala and polygamy are protected under Article 25(1) of the Constitution of India
— Whether Article 25(1) is subject to part III of the Constitution and in particular Articles 14 and 21 of the Constitution of India
— Whether personal law is law under Article 13 of the Constitution
— Whether the impugned practices of talaq-e-biddat, nikaah halala and polygamy are compatible with India’s obligations under International treaties and covenants to which India is a signatory

The Article 25(1) reads as follows:

25. (1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.

The Supreme Court clarified that it would decide issues pertaining to legal aspects of the practices of triple talaq, ‘nikah halala’ and polygamy among Muslims and would not deal with the question whether divorce under Muslim law needs to be supervised by courts as it falls under the legislative domain. The bench had however, made it clear that it was not dealing with the issue of Uniform Civil Code (UCC), which is currently being examined by the Law Commission of India.
It is interesting to delve upon the available citation which may form basic ingredient for final judgment of the Hon’ble Supreme Court. One of the earliest judgment on this subject is Pathayi v. Moideen (1968 KLT 763), where following was stated:

The only condition necessary for the valid exercise of the right of divorce by a husband is that he must be a major and of sound mind at that time. He can effect divorce whenever he desires. Even if he divorces his wife under compulsion, or in jest, or in anger that is considered perfectly valid. No special form is necessary for effecting divorce under Hanafi law. The husband can effect if by conveying to the wife that he is repudiating the alliance. It need not even be addressed to her. It takes effect the moment it comes to her knowledge.


The three Judges Bench of the Supreme Court speaking through Justice V.R. Krishna Iyer as early as in Fuzlumbi vs. K. Khader Vali (AIR1980 SC 1730) had referred to the need to have a re-look at the die hard view of Batchelor, J. in (1906) ILR 30 Bom. 537 that such an arbitrary divorce “is good in law, though bad in theology.
The Apex Court in case of Shamim Ara Vs State of U.P. & Anr. (Appeal (crl.) 465 of 1996) has dealt extensively on the “Talaq” (quoting various citations and books) and its mode and manner.
In case of Smt. Hina and other vs State Of U.P. and others (WRIT -C No. ¬ 51421 of 2016 ), stage has been set by the Hon’ble Allahabad High court in following words:

The question which disturbs the Court is should muslim wives suffer this tyranny for all times? Should their personal law remain so cruel towards these unfortunate wives? Whether the person law can be amended suitably to alleviate their sufferings? The judicial conscience is disturbed at this monstrosity. The first wife has to live life for no fault of her but for the reason that her husband got attracted to a lady half of her age which is the reason for being divorced. The view that the Muslim husband enjoys an arbitrary, unilateral power to inflict instant divorce does not accord with Islamic injunctions. It is a popular fallacy that a Muslim male enjoys, under the Quaranic Law, unbridled authority to liquidate the marriage. The whole Quaran expressly forbids a man to seek pretexts for divorcing his wife, so long as she remains faithful and obedient to him. The Islamic law gives to the man primarily the faculty of dissolving the marriage, if the wife, by her indocility or her bad character, renders the married life unhappy; but in the absence of serious reasons, no man can justify a divorce, either in the eye of religion or the law. If he abandons his wife or puts her away in simple caprice, he draws upon himself the divine anger, for the curse of God, said the Prophet, rests on him who repudiates his wife capriciously. In other Islamic State, where the husband must satisfy the court about the reason for divorce.

The Hon’ble Kerala High Court in case of Nazeer @ Oyoor Nazeer Vs Shememma (W. P. (Civil). No. 37436 of 2003(F)) and various other bunched petitions stated the following:

In these writ petitions question of validity of triple talaq does not arise. However this question was considered in larger perspective for the reason that if court grant any relief based on admission of the parties as to the repudiation of marriage by triple talaaq, that would amount to recognition of a triple talaq effected not in accordance with law, as this court has no mechanism to find out the manner in which talaq is effected. The Court cannot become a party to a proceedings to recognise an ineffective divorce in the guise of directions being given to passport authorities to accept the divorce. The legal effect of such divorce has to be probed by a fact finding authority in accordance with the true Islamic law. Stamp of approval being given by the court by ordering passport authority to accept divorce effected not in accordance with the law, will create an impression that court transgressed its limits while directing a public authority to honour an act which was done not in accordance with law. Though in these writ petitions, considering the urgency of the matters, this court granted interim order directing the passport authorities to act upon the request of the petitioners. Considering the large number of similar reliefs sought before this court in various writ petitions, this court is of the view that the issue can be resolved only through a larger remedy of codification of law in the light of the discussion as above. In the light of interim order, these writ petitions are disposed of.

In Javed & Ors vs State Of Haryana & Ors (Writ Petition (civil)-302 of 2001) the Hon’ble Supreme Court held the following in context of Article 25 of the Constitution and religious practice:

A bare reading of this Article deprives the submission of all its force, vigour and charm. The freedom is subject to public order, morality and health. So the Article itself permits a legislation in the interest of social welfare and reform which are obviously part and parcel of public order, national morality and the collective health of the nation’s people. The Muslim Law permits marrying four women. The personal law nowhere mandates or dictates it as a duty to perform four marriages. No religious scripture or authority has been brought to our notice which provides that marrying less than four women or abstaining from procreating a child from each and every wife in case of permitted bigamy or polygamy would be irreligious or offensive to the dictates of the religion.
In our view, the question of the impugned provision of Haryana Act being violative of Article 25 does not arise. We  may have a reference to a few decided cases. The meaning of religion – the term as employed in Article 25 and the nature of protection conferred by Article 25 stands settled by the pronouncement of the Constitution Bench decision in Dr. M. Ismail Faruqui and Ors. Vs. Union of India & Ors.(1994) 6 SCC 360. The protection under Articles 25 and 26 of the Constitution is with respect to religious practice which forms an essential and integral part of the religion. A practice may be a religious practice but not an essential and integral part of practice of that religion. The latter is not protected by Article 25.

In Adi Saiva Sivachariyargal Nala Sangam & Ors. Vs The Government of Tamilnadu & Anr. ( W. P (Civil) No. 354 of 2006) following was held by Hon’ble Apex Court


2. Before highlighting the issues that confronts the Court in the present case the relevant Constitutional provisions in Part III of the Constitution may be taken note of. Article 13, in clear and unequivocal terms, lays down that all laws including pre-constitution laws which are inconsistent with or in derogation of the fundamental rights guaranteed by Part III are void. Sub-Article (3) brings within the fold of laws, all Rules, Regulations, Notification, custom and usage having the force of law. While the several provisions of Part III would hardly need to be re-emphasized, specific notice must be had of, in the context of the present case, the provisions contained in Articles 25 and 26 of the Constitution. While Article 25 makes the freedom of conscience and the right to profess, practice and propagate the religion to which a person may subscribe, a fundamental right, the exercise of such right has been made subject to public order, morality and health and also to the other provisions of Part III. Article 25(2)(b) makes it clear that main part of the provisions contained in Article 25 will not come in the way of the operation of any existing law or prevent the State from making any law which provides for social welfare and reform or for throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus. Similarly, Article 26 while conferring the right on every religious denomination to manage its own affairs makes it clear that the right to manage the affairs of any religious denomination is restricted to matters of religion only.


In Ahmedabad Women Action Group (AWAG) & Ors. Vs. Union of India (W. P. (Civil- 196, 494 and 721 of 1996)) it was prayed “to declare Muslim Personal Law which enables a Muslim male to give unilateral Talaq to his wife without her consent and without resort to judicial process of courts. as void, offending Articles 13. 14 and 15 of the Constitution” , the Hon’ble Supreme Court held Following:

At the outset. we would like to state that these Writ Petitions do not deserve disposal on merits inasmuch as the arguments advanced by the learned Sr. Advocate before us wholly involve issues of State policies with the Court will not ordinarily have any concern. Further. We find that when similar attempts were made, of course by others, on earlier occasions this Court held that the remedy lies somewhere else and not by knocking at the doors of the courts.
……………………………………………………………………
In the result and having regard to the earlier decisions of this Court noticed above, we decline to entertain these writ petitions. Accordingly, these writ petitions are dismissed.

The Supreme Court reiterated that it would decide issues pertaining to legal aspects of the practices of triple talaq, ‘nikah halala’ and polygamy among Muslims and would not deal with the question whether divorce under Muslim law needs to be supervised by courts as that falls under the legislative domain.

Post Script:

The Supreme court has pronounced the judgement by majority verdict of 3:2 upholding that “Triple Talaq” is unconstitutional in following  expression:

ORDER OF THE COURT

In view of the different opinions recorded, by a majority of 3:2 the practice of ‘talaq-e-biddat’ – triple talaq is set aside.

Rajni Sinha
Advocate Bombay High Court,
Mobile: 7738080174

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An Advocate’s diary- A trip down the memory lane (Adentrarse en el mundo de los recuerdos)

Just like any other profession, Lawyer’s profession too has many interesting incidences. These incidences or happenings either enhance your chances of winning a suit or the suit being dismissed by the court completely on one or the other legal ground as pointed out by you. I, being a litigation lawyer encounter many such events and incidents which I have decided to pen down from now onwards to share with my friends & colleagues.
Case-1
Few days back a person (Indian) from USA contacted me to represent his Divorce & Maintenance suit filed by his wife in a District court of Mumbai as wife along with their daughter was staying in Mumbai to which I agreed naturally and filed my vakalatnama (Advocate’s Authorization). When I received the copy of the Petition filed by opposite lawyer, I was surprised to find that the whole Petition was wrongly drafted by the lawyer who was a well-known lawyer of that area and everyone knew of the Lawyer and the Law Firm representing the wife (opposite party) as compared to my known status.
It was a Divorce cum Maintenance Petition filed on the basis of “The Hindu Marriage Act, 1955”. Off course, both the parties (husband & wife) were Hindu by birth and remained so even after and at the time of filing the instant Petition. However, their marriage was a “Registered Marriage” (Court Marriage) and no traditional rituals were performed as admittedly accepted in the instant Petition. A “Registered Marriage” falls under “The Special Marriage Act,1954” even between two Hindus, which is entirely different Act than “The Hindu Marriage Act,1955”. For a “Hindu Marriage” one has to marry according to Hindu Traditions and Rituals and also perform ‘Saptapadi’ (saat phera) in majority of the cases. The most important legal point is that when one marries according to “The Hindu Marriage Act”, he/she will have to seek Divorce under this Act only and when one marries under “The Special Marriage Act”, he/she will have to take Divorce under this particular Act and no other Act. A Registered Marriage before designated Marriage Registrar is always performed under “The Special Marriage Act, 1954”.
I have pointed this legal Defect in my “Reply”, and requested the Hon’ble Court to order for filing a fresh suit (dismissing the present one) since amendment of the Petition for using a “Different Act” (which is a legal defect) under provisions of CPC should not be allowed. Now it is entirely Court’s discretion to allow amendment or order for filing a fresh suit.
Rajni Sinha
Advocate Bombay High Court

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Woman as Respondent in DV case

Whether women could be made respondents in the cases under the Protection of Women from Domestic Violence  Act, 2005 (the DV Act) has been settled by the Hon’ble Supreme Court in Sou. Sandhya  Manoj Wankhade  Vs. Manoj  Bhimrao Wankhade and Ors. (CRIMINAL APPEAL NO.271 OF 2011 (Arising out of SLP (Crl.) No.2854 of 2010)). The Supreme Court held following:

12. From the above definition it would be apparent that although Section 2(q) defines a respondent to mean any adult male person, who is or has been in a domestic relationship with the aggrieved person, the proviso widens the scope of the said definition by including a relative of the husband or male partner within the scope of a complaint, which may be filed by an aggrieved wife or a female living in a relationship in the nature of a marriage.

13. It is true that the expression “female” has not been used in the proviso to Section 2(q) also, but, on the other hand, if the Legislature intended to exclude females from the ambit of the complaint, which can be filed by an aggrieved wife, females would have been specifically excluded, instead of it being provided in the proviso that a complaint could also be filed against a relative of the husband or the male partner. No restrictive meaning has been given to the expression 12 “relative”, nor has the said expression been specifically defined in the Domestic Violence Act, 2005, to make it specific to males only.

14. In such circumstances, it is clear that the legislature never intended to exclude female relatives of the husband or male partner from the ambit of a complaint that can be made under the provisions of the Domestic Violence Act, 2005. 

Earlier the two judge bench of Hon’ble Delhi High Court in  Varsha Kapoor vs Uoi & Ors (WP (Crl.) No. 638 of 2010) had also held that the complaint   is maintainable even against a woman in the situation contained in proviso to Section 2(q) of the DV Act. Similarly other High Court has also held that female can be made as respondent under proviso clause of section 2(q) of the Protection of Women from Domestic Violence  Act, 2005.

However, there is gap in understanding of the judgement of apex court as well as the High Court. Whether all category of female can be made respondent in a DV case ?

The answer lies in the section 2 (q) of the DV, Act.

(q) “respondent” means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act:

Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner.

The “aggrieved wife or female in living  relationship in nature of marriage” as complainant can only make female relative of her husband or male partner as respondent. It flows from here that the complainant or aggrieved wife or female  in living relationship must implicate her husband  or male partner as one of respondent, so as to establish herself as aggrieved wife or female in live in relationship. Incidentally the supreme court judgement and High Court judgement cited above has essential ingredient of husband or male partner as one of the respondent.

In view of above, the popular perception that all category of female  can be made respondent is misplaced. Even though both the  judgement do not deal in this aspect, it is sine qua non  that complainant must be  “aggrieved wife or female in living  relationship in nature of marriage” and not all category of “aggrieved person” as defined in section 2(a) of the Protection of Women from Domestic Violence  Act, 2005.

In case of Kusum Lata Sharma vs State & Anr , Crl. M.C. No. 725/2011 & Crl. M.A. No.2797/2011 (Stay), the Hon’ble Delhi High Court has stated following:

9. As a matter of fact, para ‘4(i)’clarifies that even those women who are sisters, widows, mothers, single woman or living with the abuser are entitled to legal protection under the proposed legislation. A mother who is being maltreated and harassed by her son would be an “aggrieved person”. If the said harassment is caused through the female relative of the son i.e. his wife, the said female relative will fall within the ambit of the „respondent‟. This phenomenon of the daughters-in-law harassing their mothers-in-law especially who are dependent is not uncommon in the Indian society. 

In this case also the ‘aggrieved person’ is mother -in-law (Respondent No.-2) and has complained against daughter-in-law (Petitioner) due to property dispute between mother and son. Thus primary case of domestic violence is against son through daughter in law.

In case of Hiral P. Harsora and ors. Vs Kusum Narottamdas Harsora and Ors., Civil Appeal No. 10084 of 2016 the Supreme Court against W.P. 300 of 2013 of Bombay High Court held following:

” 46. We, therefore, set aside the impugned judgment of the Bombay High Court and declare that the words “adult male” in Section 2(q) of the 2005 Act will stand deleted since these words do not square with Article 14 of the Constitution of India. Consequently, the proviso to Section 2(q), being rendered otiose, also stands deleted. We may only add that the impugned judgment has ultimately held, in paragraph 27, that the two complaints of 2010, in which the three female respondents were discharged finally, were purported to be revived, despite there being no prayer in Writ Petition No.300/2013 for the same. When this was pointed out, Ms. Meenakshi Arora very fairly stated that she would not be pursuing those complaints, and would be content to have a declaration from this Court as to the constitutional validity of Section 2(q) of the 2005 Act. We, therefore, record the statement of the learned counsel, in which case it becomes clear that nothing survives in the aforesaid complaints of October, 2010. “

There are plethora of cases pending before various competent authority where a female has been made as respondent. The majority of this complaint is by mother in law against daughter in law only (without implicating her husband) or vice versa. In view of said Supreme Court Judgement, the case has to be proceeded against female respondent.

Rajni Sinha (Advocate, Bombay High Court), Mobile No. 7738080174

B-3/13:04, Sector-3, Vashi, Navi Mumbai-400703.

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