June 19th Proposed as International Paternity Fraud Awareness Day

June 19th, commonly known as Juneteenth in the United States is a holiday in 31 states.  It is also known as Freedom Day or Emancipation Day, commemorating the announcement of the abolition of slavery in the U.S. State of Texas in 1865.  Although, Emancipation Proclamation was made in September 1862, it had no effect on Texas which was completely under Confederate control.  On June 19, 1865, legend has it while standing on the balcony of Galveston’s Ashton Villa, Granger, who led 2000 union troops to take control of Texas, read the contents of “General Order No. 3”:

The people of Texas are informed that, in accordance with a proclamation from the Executive of the United States, all slaves are free. This involves an absolute equality of personal rights and rights of property between former masters and slaves, and the connection heretofore existing between them becomes that between employer and hired labor. …

This day is an ideal day to be designated as International Paternity Fraud Awareness Day. State sponsorship of Paternity Fraud is a worldwide issue affecting millions of people.  Archaic laws and outdated presumptions are causing grave injustice to the victims of Paternity Fraud and their families. By designating one day in a year as  International Paternity Fraud Awareness Day, we can increase awareness of the injustice meted out to the victims of paternity fraud.  Hopefully, this awareness would lead to better legislative outcomes across the world to “emancipate” the Duped Dads.

Conviction of Wife and Paramour Valid – Supreme Court

Here is an interesting news item on the case of Dammu Sreenu vs State of AP. The Supreme Court of India upheld the High Court of AP judgment of three years rigorous imprisonment to Dammu Sreenu in the adultery and suicide case of Bitra Nagarjuna Rao’s marriage. The name of the wife is intentionally left out in the news item and also in the judgment. If anyone knows the identity of the convicted adultress, please forward the same and I will publish it here.  Given below is the text of the judgment. I will have more to write on this interesting case.

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IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 681 OF 2003

Dammu Sreenu                              Versus                    State of A.P.

JUDGMENT By-Dr. Mukundakam Sharma, J.
1. The appellant herein filed the present appeal seeking for his acquittal from the order of conviction under Section 306 of the Indian Penal Code (hereinafter referred to as `the IPC’) whereby he was sentenced to undergo rigorous imprisonment for three years.
2. The appellant herein allegedly had illicit relationship with the wife of the deceased Bitra Nagarjuna Rao. The wife of the deceased was also made a co-accused in the same offence under Section 306 IPC and she was convicted for the aforesaid offence and was sentenced initially to undergo rigorous imprisonment for a period of three years which, however, later on was altered to one year of rigorous imprisonment by the High Court of Andhra Pradesh. The said sentence of one year has been served out by Accused No. 2, the wife of the deceased Bitra Nagarjuna Rao.
3. The prosecution has alleged in its case that the present appellant had developed an illicit intimacy with Accused No. 2, who was the wife of the deceased Bitra Nagarjuna Rao. On the night of 31.12.1995, accused No. 2, the wife of the deceased went out of her house and returned to her matrimonial home only on the next day. The deceased, Bitra Nagarjuna Rao was unhappy with the aforesaid conduct and so, naturally questioned her about her behaviour because of which there was a quarrel between the two. Being disturbed and perturbed on account of the behaviour of his wife (Accused No. 2), the deceased, Bitra Nagarjuna Rao called the father of Accused No. 2 and asked him to take her away so as to give her proper counselling. Accordingly, she was taken away by her father. On the same day the present appellant (Accused No. 1) came to the house of the deceased and when he was questioned by the inmates of the house of the deceased, he stated that he had illicit relations with the wife of the deceased and that he would keep coming to the house of the deceased so long she does not object to the same. When he was told that Accused No. 2 had gone with her father, Accused No. 1 went to the house of the brother of Accused No. 2 and took her away despite the protest of PW-5, brother of Accused No. 2, in whose house his father kept her. The appellant took her away and brought her back to the house of her brother only after 4 days and to her parents’ house on 06.01.1996.
4. Having come to know about the aforesaid incident, the deceased felt humiliated and insulted. He committed suicide by hanging himself in the intervening night of 7th and 8th January, 1996. It is also to be noted, at this stage, that prior to his suicide, the deceased, Bitra Nagarjuna Rao expressed before his brother that it would be better to die as he felt very much insulted and humiliated. The deceased having committed suicide, his brother gave a report to the police which was registered as a case under Section 174 of Criminal Procedure Code, 1973 (for short `the CrPC’) which was, during the course of investigation, altered to a case of Section 306 IPC.
5. The police after investigation submitted a charge-sheet against the accused. The accused, however, denied the charge. Accordingly, he was tried under the aforesaid charges. During the course of trial the prosecution examined as many as 13 witnesses and the appellant-accused was also examined under Section 313 of the CrPC wherein he denied his involvement in the offence.
6. The trial court appreciated the materials available on record and, thereafter, passed a judgment and order of conviction. He convicted the present appellant under Section 306 IPC and sentenced him to undergo rigorous imprisonment for a period of five years with a fine of Rs. 100/- in default to undergo simple imprisonment for one month. The trial court also convicted accused No. 2, i.e. wife of the deceased, under Section 306 IPC and sentenced her to undergo rigorous imprisonment for a period of    five years.
7. Being aggrieved by the aforesaid judgment and order of conviction and sentence the appellant as also the wife of the deceased filed a common criminal appeal in the court of IInd Additional Sessions Judge, Guntur which was registered as Criminal Appeal No. 32 of 1998. The said appeal was allowed in part and the conviction and sentence awarded by the trial court was altered and reduced by the learned Additional Sessions Judge to 3 years simple imprisonment.
8. In revision the High Court maintained the order of conviction against the accused-appellant but altered the sentence of Accused No. 2, i.e. the wife of the deceased to one year imprisonment which she has already undergone.
9. Now this appeal is, therefore, filed only by appellant No. 1, who was convicted and ordered to undergo simple imprisonment for three years. An order to release appellant No. 1 on bail was passed pursuant to which Accused No. 1 is on bail. The appeal was listed before us for hearing during the course of which we heard the learned counsel appearing for the parties and were also taken through the records.
10.According to the learned counsel appearing for the appellant, ingredients of abetment are totally absent as envisaged under Section 306 IPC read with Section 107 of the IPC and, therefore, Accused No. 1 is liable to be acquitted. It was submitted by him that on a proper interpretation of the facts as also the provisions of Section 306 IPC it cannot be said that the appellant herein was in any manner responsible for abetting the suicide committed by the deceased which was an independent act of the deceased. It was also submitted by him that the appellant did not in any manner substantially assisted the deceased in committing the offence of suicide and since there was no such participation of the appellant in abetting the offence of suicide, the conviction and sentence under Section 306 IPC is required to be set aside and quashed.
11.The aforesaid submissions were, however, refuted by learned counsel appearing for the State contending inter alia that there is a concurrent find of facts by three courts below finding the appellant guilty of the offence under Section 306 IPC and, therefore, the said findings cannot be said to be in any manner as untenable or unjustified. 12.The fact that the appellant had illicit relationship with Accused No. 2, who was the wife of the deceased, is an admitted position for which there was no cross-examination on the point which was clearly stated by PW-5, who is the brother of Accused No. 2, in his statement on 2.1.1996 which is reproduced herein below :

“On 2-1-1996 my father brought A2 to my house at Tsunduru and he informed that she is having illicit contact with A1 to change her behaviour brought her to my house to keep some time. On the same day evening A1 came to my house and took away A2. Some discussion take place between myself and A1 regarding coming to my house. Due to fear, I could not resist for taking away A2.”

13. We have carefully examined the aforesaid statement of PW-5 and on perusal of the statement we do not find that any suggestion was made to the said PW-5 that there did not exist an illicit relationship between Accused No. 1 and Accused No. 2. Besides, the close relatives of the deceased who were also examined as witnesses had categorically stated in their statements that on coming to know of the fact that Accused No. 1 has taken Accused No. 2 from the house of PW-5 and left her only on 06.01.1996 at her parents house, the deceased stated before the said inmates of his house that because of the said insult and humiliation he does not like to live. It is also proved that immediately thereafter in the night   intervening 7th and 8th of January, 1996 the deceased committed suicide. The aforesaid fact leads to only one conclusion that it is on account of humiliation and insult due to the behaviour and conduct of Accused No. 1 and Accused No. 2 that he proceeded to commit the suicide.
14.The facts which are disclosed from the evidence on record clearly establish that Accused No. 1 had illicit relationship with Accused No. 2 who is the wife of the deceased. It is also not in dispute that Accused No. 1 was visiting the house of the deceased to meet Accused No. 2 and that he even went to the house of deceased when he came to know that the wife of the deceased was sent with her father for counselling and advise. He loudly stated that he would continue to have relationship with Accused No. 2 and would come to her house so long she does not object to the same. He also took her away from the house of PW-5, her brother and kept her with him for 4 days. Immediately after the said incident the deceased committed the suicide. Therefore, there is definitely a proximity and nexus between the conduct and behaviour of Accused No. 1 and Accused No. 2 with that of the suicide committed by the deceased.         Besides, there is clear and unambiguous findings of fact of three courts that the appellant is guilty of   the offence under Section 306 of IPC. Such findings do not call for any interference in our hand. This Court also does not generally embark upon reappreciation of evidence on facts which are found and held against the appellant.
15.Considering the entire facts and circumstances of the case we are, therefore, not inclined to interfere with the order of conviction as also the order of sentence passed against the accused-appellant. We uphold the order of the High Court and dismiss this appeal. The bail bond of the accused-appellant stands cancelled. He shall surrender forthwith to serve out the remaining period of the sentence.

……………………………J.
(Dr. Mukundakam Sharma)
…………………………..J.
(Dr. B.S. Chauhan)

New Delhi,
May 28, 2009

Jyothi Ammal vs K. Anjan – Madras High Court (09-10-2006)

http://www.judis.nic.in/chennai/qrydisp.asp?tfnm=8196

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 09.10.2006

CORAM

THE HON’BLE MR.JUSTICE R.BALASUBRAMANIAN
and
THE HON’BLE MR.JUSTICE P.P.S.JANARTHANA RAJA

C.M.A.NOS.1666 & 1667 OF 1999
Jyothi Ammal                ..Appellant in
C.M.A.1666/1999
1.Jyothi Ammal
2.Minor A.Sasikumar             ..Appellants in
C.M.A.1667/1999
Vs.

K.Anjan                                                                 ..Respondent in                         both the appeals

Prayer in C.M.A.No.1666/1999: C.M.A against the fair and decreetal order dated 03.06.1998 passed by the Principal Family Court at Madras in O.P.No.950/1990.

Prayer in C.M.A.No.1667/1999: C.M.A against the decree and judgment dated 03.06.1998 passed by the Principal Family Court at Madras in O.S.No.79/1990.

For Appellants    : Mr.S.Subbiah
For Respondent    : Mr.S.Gunalan

COMMON JUDGMENT

(Judgment of the court was delivered by Justice R.Balasubramanian)

1.The earlier appeal is against the decree of the Family Court, Chennai  in O.P.No.950/1988  granting the relief of divorce at the instance of the husband and the latter appeal is against the decree of the Family Court in O.S.No.79/1990 rejecting  wife’s claim for past maintenance and future maintenance.  Wife is the appellant in the earlier appeal and wife and her son are the appellants in the latter appeal.  Heard Mr.S.Subbiah learned counsel appearing for the appellant/appellants and Mr.S.Gunalan learned counsel for the respondent in each appeal.

2.Even at the outset, we want to state that we are dealing with a painful subject of deciding an issue between husband and wife revolving around wife’s chastity.  A learned Judge of this court in the judgment reported in 1983 (1) M.L.J. Pg.395  (Ramanathan Vs. Subbulakshmi) had held as hereunder:

“Trial of divorce cases might have now-a-days almost become a routine, like promissory note suits.  Even so, in the trial and understanding of these cases the courts must bring to bear a human approach.  It is laid down by the Legislature itself that the court will have to try whether the parties could not be brought together before proceeding to enter upon an enquiry.”

We tried to conciliate and we failed.  The Hon’ble Supreme Court of India in the judgment reported in (2001) 5 SCC Pg.311 (Kamti Devi Vs. Poshi Ram) had laid down  the degree of proof expected in matrimonial matters touching the issue like the one before us.  In that judgment, the Supreme Court had held as follows:

“The standard of proof of prosecution to prove the guilt beyond any reasonable doubt belongs to criminal jurisprudence whereas the test of preponderance of probabilities belongs to civil cases.  It would be too hard if the standard of criminal cases is imported in a civil case for a husband to prove non-access as the very concept of non-access is negative in nature.  But at the same time, the test of preponderance of probability is too light as that might expose many children to the peril of being illegitimatized.  Therefore, the burden of the plaintiff husband should be higher than the standard of preponderance of probabilities.  The standard of proof in such cases must at least be of a degree in between the two as to ensure that there was no possibility of the child being conceived through the plaintiff husband.”

Again the Supreme Court, in 2005 4 SCC Pg.449 (Banarasi Dass Vs. Teeku Dutta & Another), relied on the above referred to judgment of the Supreme Court.  Therefore we have enough caution in our mind before we analyse the merits and demerits of the cases projected by the respective spouses.

3. The pleadings are in English and it is elaborately extracted in the common judgment of the Family Court.  Since the pleadings are found elaborately extracted in the common judgment of the Family Court, we are not re-stating the pleadings. We are also inclined to decide the appeals by our common judgment as done by the Family Court.   We will refer the parties to the appeals as “husband” and “wife”.  Wife gave birth to a child named Sasikumar on 13.04.1984.  Sasikumar is the second appellant in the latter appeal.  Husband complained that he is not the father of Sasikumar.  He pleaded that for about two years i.e., from October 1982, he did not have any sexual contact with his wife and he and his wife, from then onwards, were living in separate portions in the same house (we find that the divorce petition was presented some time in November 1984).  He had further alleged that two brothers by name Elaveerasingam and Vetriveerasingam became tenants under him in the upstairs portion of the house, in which, he and his wife were living in the ground floor and his wife developed illicit intimacy with Vetriveerasingam.  According to him, he came to know about this affair in October 1983 when he came to know that his wife became  pregnant.  He reiterated in the pleadings that since he did not have any sexual contact for more than two years, he could not be the father of the child in the womb of his wife.  Wife denied the claim of the husband.  She had admitted that she knew Vetriveerasingam only as a tenant in respect of a portion of the property and beyond that, she did not know anything about the said Vetriveerasingam and that she never had any contact with him at all.  Her pleadings show that twice before the birth of Sasikumar, she conceived and due to pressure brought on her by her husband, she aborted on each occasion with the help of native Doctors.    When she conceived again after the two abortions referred to above, husband insisted that she must abort, which she refused.  She stood her ground.  But however, she later on succumbed to the pressure of her husband by expressing her readiness to abort the child, if it is done in the Port Trust Hospital.  As her husband was not willing for that treatment, she stood firm in carrying the child and that made her husband to develop hatred against her and from then onwards, she was living separately.  During her separate stay, her husband did not give her anything at all.

4. Wife filed O.P.No.124/1990 for permission to sue as an indigent person to claim past and future maintenance.  It later on came to be registered as O.S.No.79/90.  In that plaint, wife  pleaded that her husband  unnecessarily suspecting her, neglected her  and her child.    Therefore she wanted maintenance, both past and future.  Husband resisted the proceeding by stating that as the wife is unchaste and Sasikumar was not born to him, he need not pay any maintenance.  Evidence was let in  common.   Both the original petitions were taken up earlier by the Family Court and by a common order dated 10.12.1996, husband’s O.P was decreed and wife’s suit was dismissed.  There were two appeals before this court namely, C.M.A.No.1154 & 1155/1992 at the instance of the wife and a Division Bench of this court, by a common judgment dated 12.06.1997, set aside the orders challenged and remitted the proceedings for fresh disposal, as the Bench found that the Family Court committed an error in marking and acting on expert’s report without summoning either the author of the report or anyone connected with it.  After remand, again evidence was let in.  Husband examined himself as P.W.1 and marked Exs.P.1 to P.3 namely, his lawyer’s notice; acknowledgement due and the reply notice.  Wife examined herself as R.W.1.  The expert had been examined as C.W.1 and his report came to be marked as  Ex.C.1.   Once again, the Family Court, by a common judgment dated 03.06.1998, decreed husband’s petition as prayed for and dismissed the suit filed by the wife.   Hence the present two appeals.

5. Learned counsel for the wife, by taking us through the evidence of C.W.1 and Ex.C.1 contended that his evidence does not show that he had done all the comprehensive tests available in science as on date and therefore his evidence must be rejected.   Since the disputed child is shown to have been born during the subsistence of the marriage between the husband and wife and when husband had access to his wife, it shall be taken as conclusive proof for the paternity of the disputed child.   Except the interested version of the husband examined as P.W.1, there is no other evidence to show that wife is unchaste.  Then, it is submitted by the learned counsel that even if the D.N.A test done, the report for which is Ex.C.1, excludes husband as the father of the child, yet, when it is shown that he had access to his wife during the relevant time when the child could have been begotten, strong proof is necessary to rebut the presumption of “conclusive proof” contemplated under section 112 of the Indian Evidence Act.  Mr.Gunalan learned counsel for the husband would contend, heavily relying upon the evidence of C.W.1 and Ex.C.1, that the scientific test and report excludes husband as the father of the child.  Husband seeks divorce on the ground that wife voluntarily had sexual intercourse, during the subsistence of the marriage, with a person other than her spouse   a ground enumerated under section 13(1)(i) of the Hindu Marriage Act.  Therefore, according to him, the evidence of C.W.1 and Ex.C.1 lend support to P.W.1’s evidence that his wife voluntarily had sexual intercourse with a person other than her husband.  Therefore his submission is that, no ground is made out for interfering with the judgment challenged in these two appeals.   Learned counsel on either side also relied upon case laws to sustain their point.

6. Let us now examine the records available in the case, having regard to the submissions made by the learned counsel on either side.  If wife, during the subsistence of her marriage, voluntarily has sexual intercourse with a person other than her spouse, then husband is entitled to have a decree of divorce.  Such an act would not have been done openly but on the other hand, it is always done in secrecy.   Therefore it is well-nigh impossible for any court to expect direct evidence.  In other words, only in very rare cases, wife committing such an act might have been witnessed accidentally by some one.    If a wife, during the subsistence of her marriage, is found closeted in a room with another male for a long time, a presumption may arise against her.  But in the case on hand, we do not have any direct evidence on the conduct of the wife as alleged by her husband.  There is pleading asserting misconduct on the part of the wife and a counter pleading emphatically denying such a conduct.   Evidence let in by both the parties also has the same tenor.  Therefore this court has a very onerous task in finding out where exactly the truth lies?  As said by the Supreme Court in the case reported in Kamti Devi’s case referred to supra, the burden cast upon the husband should be higher than the standard of preponderance of probabilities and the standard of proof in such cases must at least be of a degree in between the two as to ensure that there was no possibility of the child being conceived through the husband.

7.  Since this court is the first court of appeal, it is open to us to find out from the various salient features available in this case to decide as to who speaks the truth and who is withholding it.  Husband’s consistent case is that, two years prior to the filing of the divorce petition i.e., from October 1982 onwards, he did not have any sexual contact with his wife and the separation is due to quarrels. The disputed child was born on 13.04.1984.  Ex.P.1 is the lawyer’s notice dated 20.04.1984 and even in that, there is an assertion that for 1-1/2 years prior to that date, husband was not having any sexual contact with his wife.  There is an assertion even in that notice that wife was having an illicit intimacy with Vetriveerasingam and he is the father of the disputed child born on 13.04.1984.  This is one of the serious allegations, which a husband can make against his wife.  As noted earlier, husband files the petition for divorce sometime in November 1984.  Ex.P.3 is the reply notice and it is dated 05.02.1985, almost 10 months after Ex.P.1 came to be issued.  Of course, in Ex.P.3, she had denied her husband’s accusations.   But we are really surprised to find that when in Ex.P.1 a serious allegation as referred to above against the wife had been made, why she had not sent any reply immediately and  which should have been the normal conduct of any wife.  If the allegation made against the wife is utter falsehood, one would expect  the  wife to bounce  back immediately denying the accusation.   But in this case, wife had taken a sweet long time of almost 10 months to reply.  We find from the records that she had entered appearance in the divorce petition on 04.09.1985;   it is possible that she would have come to know about the proceedings much earlier and therefore, there is no surprise that only on legal advice, she would have sent the reply notice/Ex.P.3.  We also find that she had filed her counter to the divorce petition only in February 1986.

8. According to the husband, on account of the quarrels between him and his wife, he was living separately from October 1982 onwards, as already stated, in a separate portion in the same house.  But however, according to the wife, the cause for separation is that,  she initially refused to abort the disputed child when it was in her womb and later on when she agreed for an abortion to be done at the Port Trust Hospital, her   husband was not willing to take her to the  said hospital  for aborting the disputed child.  She is very categorical that only since then onwards, she was living separately from her husband.   Therefore, that the spouses parted having lost compatibility is admitted.  The question is, when did they part company namely, from October 1982 onwards as spoken to by the husband or from the time when wife stood firm not to abort the child in dispute.   We find, on going through wife’s pleadings, that she has not come out with any specific date or month or year from which she started living separately.  Of course, in her oral evidence, she would state that in the month of October 1984, she got separated from her husband and when the foetus was 12 weeks old, she and her husband had problems and problems aggravated from the birth of Sasikumar.  She had admitted in her cross examination that she did not specifically plead in her counter that she started living separately from October 1984 onwards.  Though strict rules of evidence may not be adhered to in matrimonial matters, yet, on a crucial issue like the one referred to above, we expect wife to plead from which point of time she got separated from her husband.  In the counter filed to the divorce petition, wife had stated that before the birth of the disputed child, she conceived twice and on both the occasions, she aborted at the instance of her husband with the help of native Doctors.   She does not even say when did such  abortions take place.  The native Doctors, who treated her, have not been examined.  At the risk of repetition, we state that in the pleading, wife had stated that twice earlier, before  the birth of the disputed child, she conceived and aborted, though not on her own volition.  The couple had four children out of their wedlock and they are not disputing it.  But  they are not seeing eye to eye on the birth of the disputed child.  But however, we find in her evidence before court that she had stated that prior to the birth of the disputed child, she conceived and aborted thrice.   A mother will never forget in her life how many times she conceived; how many times she aborted and how many times she carried the child till the end.

9.  She had admitted, when she was cross examined, that she had no proof that she had undergone three abortions.   She had further admitted that from the time foetus was 12 weeks old, she did not have any marital relationship with her husband.  We also find that even in her evidence she did not depose the month or the year in which she had aborted earlier.   When husband had consistently pleaded and deposed that his wife had illicit intimacy with Vetriveerasingam, the court expects wife to come forward with a definite stand.  We have already noted  earlier her stand in the counter statement, where she had only stated that she knew Vetriveerasingam only as a tenant and that she had no other detail about him.  But in her evidence in chief, she had admitted as hereunder:

“Vetriveerasingam and my husband belong to the same town; Vetriveerasingam’s father and my husband are friends; Elaveerasingam/elder brother of Vetriveerasingam, is the tenant in the house in which we live and he pays rent to my husband; Vetriveerasingam used to visit the house often to see Elaveerasingam; however I have no connection whatsoever with Vetriveerasingam.”

When she was cross examined, she had admitted as hereunder:

“Even from our childhood, we know Vetriveerasingam’s family; myself, my husband and Vetriveerasingam hail from the same town; two or three years prior to the birth of the disputed child, Elaveerasingam became the tenant; Elaveerasingam is married and has a child while Vetriveerasingam is a bachelor.”

Therefore it is clear that the stand taken by the wife in her counter statement that except knowing Vetriveerasingam as the tenant, she does not know anything else about him, is an  utter falsehood.  In the pleadings she states that Vetriveerasingam is the tenant while in her evidence she states that Elaveerasingam   elder brother of Vetriveerasingam, alone was the tenant.  Therefore we are wondering as to why we should not hold that wife has no regard for truth and consistency in her case.

10.  According to wife, separation took place  when the move to abort the child and ultimately when she decided  to  carry the child (disputed child) till the end.    She would state that foetus was 12 weeks old at that time.  According to husband, from October 1982 onwards, he was no-where near his wife, though both were living under the same roof but in different portions.  Husband is categorical that from October 1982, he did not go anywhere near his wife.   The expression “access” used in section 112 of the Indian Evidence Act had been held by courts as “opportunities to reach”.  Therefore the court must have materials to come to the conclusion that, during the period when wife conceived, husband had opportunities to approach her or vice-versa.  Only in this context, we have stressed on the need for definite pleading and proof from either side.  If it is shown that the parties had no access to each other at the time when the child could have been begotten, as held by the Supreme Court in Kamti Devi’s case referred to above, the presumption under section 112 of the Indian Evidence Act stands rebutted.  The word “access” connotes only existence of opportunity for marital intercourse.  In this context, we applied our mind to find out whose evidence regarding cause for separation deserves acceptance?  As held by the Supreme Court in Banarasi Dass’s case referred to supra, the presumption under section 112 of the Indian Evidence Act can only be displaced by a strong preponderance of evidence and not by a mere balance of probabilities.  Having the above in our mind, we proceeded to analyse the cause for separation as alleged by the respective parties, since it may give a vital clue to decide the issue of “access”.  According to husband, repeated quarrels resulted in strained relationship between the parties and as such, husband was not even on talking terms for two years i.e., from October 1982 with his wife and he did not have any intercourse at all with his wife.  Wife’s evidence is that, she conceived through her husband resulting in the birth of Sasikumar and though her husband wanted her to abort, she did not agree for it initially, but later when she agreed for abortion to be done in the Port Trust Hospital, her husband did not agree.   According to wife, after the admitted birth of four children to the couple, she conceived for the 5th time and 6th time as per the pleading and 5th, 6th and 7th time as per her oral evidence before she came to conceive again.  She is very positive that since she and her husband had fallen out as to how and in what manner when she became pregnant for the 8th time must be put an end to, problem arose between the spouses.  According to her, though initially she refused to abort on the 8th occasion, yet, ultimately she agreed for the abortion, if done in the Post Trust Hospital, Chennai, where her husband is employed and since her husband was not willing for that, she had to carry the child and thus problems arose.  This reason given by the wife is most unimpressive and unnatural.  It does not appeal to us at all.  For aborting the 5th, 6th and 7th child conceived, there is no proof.  According to wife, on all the occasions, husband gained over her in bringing an end to the child in the womb.  If for the 8th child (disputed child), husband wanted to have that child also aborted as spoken to by wife, we see no reason at all as to why husband would have refused to take his wife to the Post Trust Hospital for abortion.  There is unnaturalness in the evidence of R.W.1 in this regard.  In Ex.P.3, the reply notice, there is no statement that wife conceived for the 5th, 6th and the 7th time and on all those occasions, she aborted at the instance of her husband.  In Ex.P.3 we find that wife accused her husband of bringing pressure on her to abort only when the foetus of the disputed child was in her womb.  Altogether, a different story is also given in Ex.P.3 and it is that, after the birth of the third child, husband found it difficult to run the family and therefore he was putting pressure on his wife to bring money from her parents.  Ex.P.3 proceeds to state that under great strain, wife’s father sold the jewels and sent money  to her. It is further stated in Ex.P.3 that husband went on threatening his wife to bring amounts in thousands from her father.  This version found in Ex.P.3 is neither pleaded in any of the proceedings nor even deposed.  Therefore we find that the evidence of R.W.1 as to the cause for her separation from her husband is artificial, unnatural and very difficult to be believed.

11. In Ex.P.1 as well as in the pleading in the divorce petition, husband had stated that for the birth of the disputed child, his wife got admitted in the Port Trust Hospital on her own without the knowledge using the family identity card.  Neither in Ex.P.3, the reply notice, nor in the counter filed to the divorce petition, wife had denied this.  Wife’s case is that she conceived for the 5th, 6th and 7th time and on all those occasions, she was forced to abort at the instance of her husband.  On the other hand, what was put to him in the cross examination is that, when wife was in the family way, having a 12 weeks old foetus in her womb namely, on 16.10.1983, husband pressurized her to abort, which she successfully resisted and four times prior to that, husband arranged for her abortion.  To P.W.1, it was suggested by the wife that they were living together till 16.10.1983 meaning thereby that thereafter they were not together.  However, when she deposed as R.W.1, she had stated even in her evidence in chief that the separation was in October 1984.  Therefore going by the overall materials noted by us in the earlier portion of this judgment, we see no compelling reason at all as to why we should not accept the evidence of P.W.1 in preference to the oral evidence of R.W.1 (wife).  In other words, when Ex.P.3 itself shows that even after the birth of the third child problems arose between the spouses in terms of money, though subsequent to that the 4th child was born, the possibility of the relationship between the parties getting worsened looms large.  In (1975) 2 SCC Pg.730 (The Dollar Co. Madras Vs. Collector of Madras), the Supreme Court held as hereunder:

“A court of appeal interferes not when the judgment under attack is not right but only when it is shown to be wrong.”

12. Husband, wife and the disputed child were subjected to DNA test.  C.W.1 is the expert and Ex.C.1 is his report.  We extract the contents of Ex.C.1 as hereunder:

“Comprehensive Report on R & D:3/90

——————————————————————————————
Phenotype
Genetic System
—————————————————————
Alleged        Mother             Child
Father         Tmt.Jothiammal        Selvan
Tr.K.Anjan                    Sasikumar        ——————————————————————————————-
Redcell  ABO             A        B            B
——–    ——–        ——–
antigens *Rh             ccdee        CCDee            CCDee
MN            NN        MM            MN

Serum      Haptoglobin(Hp)        2        2            2
Proteins  Glyoxalase (GLO)    2-1        2            2

Secretor status     Sec         Sec             Sec
Saliva       Salivary Glyco
Protein (Gl)        III        IV            IV

Amylase (Amy1)    A        A            A

o Locus A        A3,25(10)    A11,-            A11,w19
HLA      **Locus B        B5,7        B5            B5,62
(15)
ooLocus C        Cw7, -        Cw-            Cw3,-

——————————————————————————————

Opinion:

* Child Selvan Sasikumar is homozygous for  CC antigens
of Rh system but the alleged father Tr.K.Anjan is having
only cc and not C antigen.

o Child Selvan Sasikumar is having A11, w19 antigens of
HLA-A locus but none of these antigens are present  in
the alleged father Tr.K.Anjan.

** Child Selvan Sasikumar is   having B5, 62(15)   antigens of
HLA-B locus but the alleged father Tr.K.Anjan is not having
62(15) antigen.

oo Child Selvan Sasikumar is having Cw3, – antigens of HLA-C
locus but this antigen is not present in the alleged father Tr.
K.Anjan.

Hence the alleged father Tr.K.Anjan is excluded from being the father of the child Selvan Sasikumar.

(N.GUNACHANDRAN)                            (DR.C.DAMODARAN)
M.Sc.                                    M.Sc., DEL., Ph.D.,
Scientific Assistant                             Asst.Chemical Examiner to                                     Govt.
Director Forensic Science
——————————————————————————————

We extract the relevant portion in the evidence of the expert:

“The Genetic Markers include ABO System RH System Mn System under Red Cell Antigens of blood,  Haptoglobin System, Complement System 3 under Serum Proteins of blood, Esterase-D, Glyoxalase-I Systems under Red Cell enzymes of blood, Secretor Status, Salivary Glycoprotein and Amylase 1 Systems under Saliva and HLA   A, HLA   B, HLA   C under White Cells of blood.”

C.W.1 had stated that he prepared individual report of father, mother and the disputed child, in which all the genetic markers test have been recorded and on the strength of such individual report, he gave the comprehensive report   Ex.C.1, which, we have extracted above.  He deposed as hereunder:

“After consideration of the various tests conducted on Thiru.K.Anjan, Tmt.A.Jothi Ammal and Selvan Sasikumar, I am of the opinion (1) Selvan Sasikumar is homozygous for CC antigens of Rh system   this means he has received C antigens from each of the parents, whereas Thiru.K.Anjan is not having C antigen in him but only C antigen in him. (2) Selvan Sasikumar is having A11, W19 antigens of HLA-A Locus in him   this means that he should have received A11 or W19 from either of his parents.  Thiru.K.Anjan is not having either A11 or W19 antigens with him.  (3) Selvan Sasikumar is havinB5, 62(15) antigens of HLA-B locus in him   this means B5 and 62(15) should have come to him from either of this means B5 and 62(15) should have come to him from either of his parents.  Thiru.K.Anjan was not having 62(15) antigen in him.  Selvan Sasikumar is having Ow3   antigens under HLA-C locus in him.  These antigens should have come from either of his parents, whereas Thiru.K.Anjan is having only Ow7 antigens in him and not Ow3.  Based on the above observations, I came to the final opinion that Thiru.K.Anjan has to be excluded from the paternity of the child Selvan Sasikumar.  The same opinion has been jointly arrived by my colleague also and both of us have jointly signed Ex.C.1 Series.”

In his cross examination he had deposed that he has an experience of 16 years; his examination revealed that the disputed child has mother’s (B) group of blood; it is true that a person having a red cell antigent combination of NN could also be the father of a child bearing red cell antigens of MN and therefore it is possible on that basis that the child could have been born to Anjan (husband).  But he had added in an emphatic manner that such single test alone is not conclusive ; that is why he had done a comprehensive test  and on the basis of the comprehensive test, he can say that antigen is not the father of the disputed child.  He had also added that the comprehensive test is the conclusive proof of his finding.  He had further stated that in the Indian population, the factor H.P.2 gene is common and the said factor is found in this case with the father, mother and the disputed child.  He ended his evidence by stating that  “it is not correct to say from Ex.C.1 that petitioner Anjan could be the father of the minor child Sasikumar on the other hand from Ex.C.1 it is clear that the petitioner Anjan is not the father of the minor child Sasikumar.”

A learned Judge of this court in the judgment reported in AIR 1959 Mad. Pg.396 Subayya Gounder Vs. Bhoopala) had held as hereunder:

“The blood group of a person is determined by the characters which it contains.  It must contain at least one character of each set, and the characters are inherited according to fixed rules.  A child cannot have a character which he does not inherit from one or other of his parents.  The technic of this blood grouping has been developing with the passage of years. “

” The value of the test is however limited.”

“The tests, have their limitations; they may exclude a certain individual as the possible father of a child but they cannot possibly establish paternity.  They can only indicate its possibilities.  Another man with the same group as the father could be responsible for the child in question.”

The Hon’ble Supreme Court of India, in Kamti Devi’s case referred to supra, had held as hereunder:

“The result of a genuine DNA test is said to be scientifically accurate.  But even that is not enough to escape from the conclusiveness of Section 112 of the Act e.g if a husband and wife were living together during the time of conception but the DNA test revealed that the child was not born to the husband, the conclusiveness inlaw would remain irrebuttable.  This may look hard from the point of view of the husband who would be compelled to bear the fatherhood of a child of which he may be innocent.  But even in such a case the law leans in favour of the innocent child from being bastardised if his mother and her spouse were living together during the time of conception.  Hence the question regarding the degree of proof of non-access for rebutting the conclusiveness must be answered in the light of what is meant by access or non-access as delineated herein.”

Therefore there cannot be any difficulty in acting on the evidence of C.W.1 and Ex.C.1, the D.N.A test done and the report.  Earlier in this judgment we have found that the husband’s case that he had no access to his wife deserved acceptance and accordingly, we accepted his evidence.  Kamti Devi’s case is relied on by the Supreme Court in Banarasi Dass’s case referred to earlier.  Learned counsel for the wife brought to our notice the judgment of the Supreme Court in the case reported in 1999 (7) SCC Pg.280 (State of H.P Vs. Jai Lal & Others) to contend that expert’s evidence do not warrant acceptance.  In this case, we find that C.W.1 had stated that he had completed 24 years of service in the Forensic Department and on the date of conducting the test, he had already put in 16 years of experience.  We find from Ex.C.1 that in addition to C.W.1, the Assistant Chemical Examiner, had also signed at the foot of it.   Therefore we see no reason at all as to why we should doubt the credibility of the expert’s evidence.   What would be the credibility of an expert’s evidence  would depend upon the facts of each case and the subject about which he deposes.  There is not even a suggestion to C.W.1 that he is incompetent to conduct the DNA test.  Therefore we are unable to eliminate the evidence of C.W.1 and Ex.C.1 from consideration.  The DNA test excludes Anjan as the father of the disputed child.   Therefore we hold that husband had no access to his wife during the time she could have begotten the child and expert’s evidence excludes husband as the father of the disputed child.  If this is our conclusion, then it must be held that the ground put forward for divorce is established.

13. For all the reasons stated above, we find no ground to interfere with the orders challenged and accordingly, the appeals are dismissed with no order as to costs.

Vsl

[VSANT 8196]

Court Allows DNA Test of Disputed Child

Why not? If there is sufficient doubt in the mind of the Husband corroborated by the past incidents of infidelity, then the husband should be given the opportunity to contest the paternity of the disputed child at husband’s own expense.  Now, from the DNA Paternity testing, the husband is proven to be the biological father of the child, full force of law must be brought to bear upon him to ensure he shoulders the responsibility of that paternity.

If the DNA Paternity Test clears husband of the biological paternity, then the question of the real biological father must be resolved by the society. Several questions arise regarding that paternity. Who is the biological father? What is the context of that conception? Was the conception result of a forced intercourse meaning “rape”? If indeed the conception was a result of rape, then how does the society ensure the perpetrator of that crime is brought to justice?

These are questions of grave magnitude. The relatively inconsequential inconvenience of performing a DNA Paternity Test pales in comparison to the weighty issues mentioned above. The society must wake up to the issues of paternity and take them very seriously.  Society must not allow cunning or powerful men to get away with the rape of a married woman.

Courts in India are on the right track in these matters.

Read the news item below -

 http://timesofindia.indiatimes.com/Cities/Delhi/
Maintenance_battle_Court_allows_DNA_test_of_disputed_child/articleshow/3777383.cms

A woman fighting a battle for maintenance with her estranged husband will now have to prove the legitimacy of their daughter with a court allowing DNA testing of the child at AIIMS here.

Additional sessions judge Deepak Garg suggested a lower court to pass appropriate orders so that AIIMS medical superintendent could conduct the DNA test “expeditiously.”

The court’s order came on a revision petition filed by the woman against the order of a metropolitan magistrate asking her to bear equally the cost of DNA testing of one of the daughter’s with her husband.

Her husband had raised objections to her maintenance plea questioning the legitimacy of one of their three daughters. Allowing the plea of the woman, ASJ Garg said, “Admittedly, the child has born after marriage of the woman with the man and hence there is a presumption in favour of the legitimacy of the said child. If the father is disputing the legitimacy of the child in question, the entire cost of DNA should be borne by such party, who is challenging the same.”

The husband had disputed the legitimacy of one of their daughters before Metropolitan Magistrate which was approached by the woman for maintenance to her and her children.

Child Victim of Paternity Fraud Demands DNA Test

The rich and powerful men have always gotten away with extracting sexual favors from women around them. Bill Clinton is a great example of how he exploited young women using his position of power. At the same time, women are attracted to men in positions of power.  These rendezvous can potentially result in illegitimate conceptions and illegitimate children. Now, we have an indisputable, scientifically accurate mechanism in the form of DNA Paternity testing to conclusively prove the paternity.

The children of Paternity fraud cannot be robbed of their ancestry, their heritage, and their share in the ancestral properties for no fault of their own.  These men who exploited the weakness of a woman to propagate their progeny, must be held accountable for their actions by the society. The child victims of Paternity Fraud must be allowed to seek their fair share from their biological fathers. Anything less is cruel and unjust.

If indeed Rohit Shekhar was fathered by AP Governor ND Tiwari, Rohit is entitled to that determination, and any consequential benefits from that paternity. Just because the alleged father is a politically powerful figure, he should not be allowed to walk away without consequences for his indiscretions or exploitations. The court is right in holding that ND Tiwari is not above law in Family law matters. If ND Tiwari has nothing to hide or fear, then he should come forward for the DNA Paternity testing to clear his name. The more he holds out or fights the court order, the more one is inclined to think there is truth to the assertions of Rohit Shekhar.

All fairminded people should support Mr. Rohit Shekhar in his pursuit of justice.

Read the news item here -

http://timesofindia.indiatimes.com/Andhra_Governor_Tiwari_moves_High_Court_in_paternity_case/
articleshow/3797338.cms?TOI_latestnews

Andhra Governor Tiwari moves High Court in paternity case
5 Dec 2008, 1627 hrs IST, PTI
NEW DELHI: Andhra Pradesh Governor N D Tiwari on Friday approached the Delhi High Court against its order directing him to appear before a Bench in a paternity suit filed by a man claiming to be his natural son.

The Governor challenged a single Bench order passed on November 25 directing him to appear before the court on December 16.

Tiwari submitted before a Division Bench that he was exempted under Section 133 of Civil Procedure Code from his personal appearance.

“Grave prejudice and inconvenience shall be caused to the appellant (Tiwari) and his office in case, the effect and operation of the impugned order is not stayed,” advocate R S Bakshi, appearing for Tiwari said.

The Bench headed by Justice A K Sikri, however, refused to pass any interim order and posted the matter for further hearing on December 15.

The Court had on November 25 refused to exempt Tiwari from personal appearance, saying that it was a family matter and (but) he is “not above the law”.

The Court’s order had come on a suit filed by Rohit Shekhar, grandson of former Union Minister Sher Singh, claiming that he was born out of a relationship between Tiwari and his mother Ujjwala Singh, who is also associated with the Congress party. The 85-year-old Governor has rubbished the claim.

The former chief minister of Uttar Pradesh and Uttarakhand has refused to undergo DNA test when petitioner’s counsel had contended that the test would prove everything.

“Why should I be forced to undergo the test? There is no legal provision under which I can be forced to undergo DNA test”, Tiwari’s counsel had argued on his behalf.

The court admitted 29-year-old Rohit’s petition in April and sought a response from Tiwari.

Delhi HC Judgment Recognising DNA Test to Prove Paternity

IN THE HIGH COURT OF DELHI AT NEW DELHI

12.05.2008

Present: Mr.K.P. Mavi for the petitioners

Mr. Pawan Sharma/ Ms. Fizani Hussain, APP for the State.

Mr. Kapil Jain for the respondent

Crl.M.C.No.1815/2007

This petition under Article 227 of the Constitution of India  challenges the order dated 4.5.2007 passed by the learned M.M. on the application of the petitioner praying for the conduct of DNA test in respect of respondent No.3 Master Ansh who according to the petitioner, is not his biological  son.

Respondent No.1 is the wife of the petitioner. Respondent No.2, admittedly, is the son of respondent No.1, from an earlier marriage. Respondent No.1 had preferred an application for seeking maintenance under Section 125 Cr.P.C. In those proceedings the petitioner who is the husband of respondent No.1, preferred the aforesaid application seeking the conduct of DNA test in respect of respondent No.3 to determine his parentage since, according to him, respondent No.3 is not his biological child. That application has been rejected by the learned Metropolitan Magistrate by the impugned order dated  4.5.2007.

The learned Magistrate has rejected the application by holding  that the DNA test will not have any effect on the merits of the present petition as the present petition is under Section 125 Cr.P.C. and the provisions of Section 125 Cr.P.C. do not make any difference between legitimate and  illegitimate children in order to maintenance.

The submission of the petitioner is that the learned Magistrate has not appreciated the fact that respondent No.3 is not alleged to be the legitimate child of the petitioner husband. The claim of the husband is that respondent No.3 is not his biological child and that he was conceived by respondent No.1 in adultery. He also refers to the order dated 13.2.2007 wherein, at one stage, counsel for the respondent had recorded his no objection to the prayer made in the application of the petitioner. Even the subsequent statement made by learned counsel for respondent No.1 herein, only pertains to the DNA test that the petitioner had sought in respect of claimant No.2, who admittedly, is not the biological child of the petitioner.

Counsel for the petitioner also relies on a decision of this Court in Kanchan Bedi and Anr. vs. Gurpreet Singh Bedi 2003(67) DRJ 297. In that decision this Court had considered various earlier decisions on the point and in paragraph 8 thus concluded there is no impediment or violation of rights in directing persons to submit themselves for DNA test, especially where the parentage of a child is in controversy for the grant of maintenance.

Submission of learned counsel for the respondent is that a perusal of the memo of parties as filed by the petitioner shows that he claims himself to be the father of respondent No.3 Master Ansh. He further submits that in various other proceedings the petitioner has not disowned his parentage qua respondent No.3.

In my view these submissions are of no avail. So far as the memo of parties is concerned the petitioner has simply adopted the description of the parties as is contained in the application filed by respondent Under Section 125 Cr.P.C. The same is not determinative of the fact whether the petitioner is the biological father of respondent No.3 or not. The parentage of respondent No.3 can only be determined by the conduct of DNA test. The liability to pay maintenance under Section 125 Cr.P.C. can be avoided qua respondent No.3 only if it is established that he is not the biological son of the petitioner.

Considering the aforesaid, I am of the view that the learned Magistrate wrongly rejected the application filed by the petitioner praying for the conduct of DNA test of respondent No.3 Master Ansh.

Accordingly, I set aside the impugned order dated 4.5.2007 passed by the learned Magistrate and further direct that DNA test of respondent No.3 be conducted at All India Institute of Medical Science, New Delhi, For the drawing of samples for the test, the respondents are directed to ensure the presence of respondent No.3 before the Medical Superintendent, AIIMS on 22.05.2008 at 11 a.m.

Petition stands disposed of.

Dasti.

May 12, 2008

VIPIN SANGHI, J

India for DNA Tests in Contested Paternity

Slowly but steadily, Indian Justice system is coming to grips with the availability of modern technology in conclusively proving paternity and non-paternity. There are some hypocrites trying to invent new concepts like social paternity. These concepts may have made sense in medieval times, but not in modern times. In fact, there are only two means by which paternity should be recognised and enforced by the society – biological paternity or paternity through adoption. Anything else is a crime against humanity any which way you consider it.

Here is the essence of the rants of these hypocrites -

“While this is legal consequence of the High Court decision, here are some social impacts of the decision. A group of Indian citizenry is discontent with the decision because they think that now some people will demand the use of DNA test in other cases to prove adultery or paternity fraud creating harassment and social tension. Importantly, all of these cases will psychologically affect the child in question. In Indian society where woman’s single parenthood is yet to recognize, where a child without father’s identity is treated as illegal and huge social stigma is attached with it, when a mother cannot be a legal guardian for admission in educational institutions and for many purposes, the children with such disputes will psychologically suffer a lot. Not because of their own fault but because of their parents, their social position, respect and security will be affected.”

Who is this group of Indian Citizenry that is discontent with the decision? Can they come out in the open and make their claims?

They claim that some people will demand the use of DNA tests to prove adultery. Why not? What is wrong with that? You are ready to convict a rapist based on the DNA tests. Why not convict the father of the adulterous offspring based on the same DNA test?

In most cases of paternity fraud in the Indian context, the illegitimate child is fathered by someone close to the woman who exerts a powerful influence on her. In these cases, the woman who is impregnated illegitimately by him, has no courage or desire to expose the man. For all practical purposes, this can be considered as a rape. Is it OK for the society to let that man who fathered the child through a rape off the hook just because the woman is married to some other unfortunate soul at the time of her illegitimate conception? It is a different matter if the woman and her legally married husband mutually agree not to raise the issues of paternity of the child and raise it in a happy family. But forcing the husband to turn a blind eye to the rape, to the illegitimate conception and to the illegitimate child; is heights of hypocrisy.

Sure, the children who are mistakenly attributed fathers, would suffer severe psychological trauma later in their lives. It is better for everyone concerned to deal with the parentage of the child head on in the early years, so that these children learn to accept their identity early on and deal with it.

Paternity Fraud is a crime committed by two individuals – the biological mother and the biological father. The society must recognise this as a crime. It is a crime against the child, against the society and against God. That the punishment for criminals somehow impacts their children should not be a factor in letting the criminals go off the hook. It has never been done in any society. If we accept that reasoning, then any person who commits a heinous crime like murder should be let off the hook as well, if that person has young children whose interest would be seriously affected by incarcerating that person.

Let us debunk this specious argument once and for all – “in the best interests of the child”. There is no best interest served for the child by concealing the true identity of its biological father. If you are talking in generalities and so concerned about the best interests of the children, there are millions of more deserving children, roaming hungry on the streets of any major city in our country. Go ahead and display all your charity in uplifting those impoverished children.

If your true agenda is protecting the adulterous women from scrutiny, then you stand exposed for supporting the fraud and the sin !!!

AngryHarry On Paternity Fraud

I stumbled upon one of the best exposes of paternity fraud by Angry Harry.

http://www.angryharry.com/esPaternityFraud.htm

Here is a small excerpt that debunks the specious argument supporting Paternity Fraud, namely “in the best interest of the child”.

“Indeed, for a state to aid and abet those mothers who have deceived their children with regard to the identity of their biological fathers could hardly be more damaging to the children’s best interests. As DNA testing becomes more readily available, easier to do, and more worthwhile doing in the near future, so it is that more of it will be done. And when, as a result of this, most of the children who have been duped finally discover that a large and significant part of their true identities have not only been denied to them, but that, to make matters worse, they have actually been suckered into developing FALSE identities solely in order to benefit employees who work for the government, they are surely going to be highly aggrieved to say the least.”

I believe the children of Paternity Fraud are the worst victims of this identity fraud. They are denied their heritage, their kith and kin and their legitimate familial connections.  In addition they are also saddled with the moral debt of their putative fathers’ state sponsored robbery. They are punished for the sins committed by their unscrupulous mothers.

DNA evidence used way back in 1997 to establish paternity

This is an old news, but here is a clear indication of double standards of our society. We are ready to use the DNA based paternity test to convict a fake Swamy in a rape case. But why is there such reticence; and such convoluted and contorted logic used to deny the benefit of the same scietific test when a woman commits adultery and the evidence is present there for the world to see in the form of a child. Often we hear the argument – “in the best interest of the innocent child”. How does  preventing a child from uniting with its biological father serve the best interests of the child? Aha! If it is for money, then why only this particular child should benefit from the legalized extortion? There are far more numbers of deserving children that are starving throughout our country.  Those children deserve better than the product of sin, who is clearly the responsibility of its biological mother and its biological father – and no one else.

______________________________________________________________________________

Double life sentence for Premananda

DECCAN HERALD Thursday, August 21, 1997 DH News Service CHENNAI, Aug 20

In a sensational judgment, controversial godman Premananda was today convicted of rape and murder and awarded double life imprisonment and a cumulative fine of Rs.66.4 lakh. Pudukottai District and Sessions Judge R Banumathi also ruled that the 46-year-old godman should undergo the life sentences consecutively. He should undergo rigorous imprisonment for a further period of 32 years and nine months if he failed to pay the fine, the judge added.

Premananda, a Kandyan Tamil from Sri Lanka who set up an ‘ashram` near Tiruchi in the mid-`80s, was found guilty of raping 13 inmates of his ashram and murdering a disciple, Ravi. The victims were all Sri Lankan Tamils. Along with Premananda, his chief disciple Kamalananda was also awarded life imprisonment and a fine of Rs.12,500 for abetting the crimes and tampering with evidence. The judge said Kamalananda should undergo a further threeyears` RI if he failed to pay the fine.

Kamalananda`s wife, Dr Chandradevi, was found guilty of performing abortions on the rape victims and was sentenced to imprisonment for two years and seven months. But, as she had already spent that period as an undertrial, the judge ordered that she be set free upon paying a fine of Rs.30,000. The judge also awarded life sentence to four other co-accused, all disciplesof Premananda. They were – Balendran, Mayilvahanan, Nandakumar and Satish. While Balendran was fined Rs.10,000, others were ordered to pay Rs.12,000 each. The judge said the fines collected should be used to pay compensation of Rs.5 lakh each to the 13 rape victims. The judge said the convicted prisoners would not be entitled to any remission considering the heinous nature of the crimes committed.

The judge delivered the verdict in a packed courthall where the godman and other accused were produced. Activists of some women`s organisations raised slogans against the godman when he was brought to the court. As many as 49 prosecution witnesses and 64 defence witnesses were examinedin the case which came to light after one of the victims, Sureshkumari, escaped from the ashram and exposed the sex scandal in early 1994.

Prominent among the prosecution witnesses was forensic expert Jayaprakash who established the identity of murder victim Ravi from a skull recovered from the ashram. The prosecution also roped in as witnesses several doctors in Tiruchi and Pudukottai who had attended on the girls raped by Premananda. One of the victims, Aruljothi, became pregnant and a DNA test done in Hyderabad established that Premananda was the culprit.Noted criminal lawyer Ram Jethmalani appeared for Premananda who was arrested along with eight others in November 1994. Two of the accused later turned approvers. Premananda later told newsmen that he would appeal against the judgment.

Divyadevi, one of the principal disciples of Premananda, escaped immediately after the scandal came to light and her properties worth Rs.80 lakh were attached to the court. She is still untraced.

PTI adds: The godman was in a defiantly jovial mood after the judgment, as he smiled at photographers while being taken back to prison, and said: ”Truth will ultimately triumph.“ ‘Swami` Premananda`s sordid story unfolded in the middle of November 1994, when the girls he had raped came out with startling revelatory interviews to a leading English daily. The girls had sought shelter with the help of some women activists at ‘Udavum Karangal`, a charitable organisation in Chennai.

The interviews created a sensation, and the then AIADMK government, already plagued by a whisper campaign that the disgraced ‘hermit` was close to some of the ministers, swung into action within days. The Crime Branch-CID of the state police raided Premananda`s ashram at Viralimalai near Tiruchirappalli and arrested Premananda and others. But Divya, a mysterious associate of Premananda, who was known to the ashramites as Divya Mataji, managed to give the slip to the police as she was abroad when the scandal broke out.

Premananda, whose real name was Ravi, settled down in India in the early 1980s after fleeing Sri Lanka as a refugee. With the help of some close friends, he set up the ashram in sylvan environs. Nothing in the ashram`s external appearance suggested the sordid goings-on inside.

IRREFUTABLE DNA TEST EVIDENCE AND ITS IMPLICATIONS

An epoch making 408 page judgment by judge R. Bhanumathi finally put an end to a case of debauchery of a self proclaimed “celibate” godman, Swami Premananda of Sri Lanka who came to Tamil Nadu as a refugee in the eighties. A straight case of establishing paternity through a standard DNA test was complicated by people and courts. The other crimes committed by the godman too came out as major revelations that spanned a three-year court trial finally culminating in a sentence of life imprisonment for two terms and a hefty fine of Rs.66,40,000. It is said he was involved in the rape of 13 girls in his ashram near Tiruchirapalli and for ordering the murder of a male inmate, all Sri Lankan refugees. Cases such as these are eye-openers and throw up a lot of issues to debate about people’s gullibility, indisputable scientific evidence, awe about expert opinion.

The unassailable evidence provided by the DNA finger printing conducted by Dr. Lalji Singh, Deputy Director of the Center for Cellular and Molecular Biology (CCMB), and currently, officer on special duty at the Center for DNA Finger Printing and Diagnostics (CDFD) established the 45 – year old Swami Premananda as the biological father of the foetus as a result of rape of 19-year-old Arul Jyothi.

The DNA test evidence was presented by the prosecution based on four types of probes of international standards such as – the multi locus, single locus, PCR based VNTR loci and micro- satellite investigation. This was sought to be contested by the defence by having a British expert present the DNA test results. That there is a ban placed by the Medical Council of India on seeking such expertise from abroad when comparable expertise is available within the country seems to have been ignored by the Sessions court which was ordered by the High Court to send the foetal samples sent by the Tamil Nadu police to Dr. Lalji Singh. What is more astonishing is that the British expert whose report was presented by the defence lawyer Ram Jethmalani was neither based on tests conducted as per international standards (as were done by the CCMB) nor certified and supported by photographs as was done in the case of evidence provided by the prosecution. Further, the British geneticist’s report puts to shame British science where DNA finger printing originated and casts serious aspersions on the British lab which conducted the actual test. It goes to prove that the scientific expertise as is widely believed is not the exclusive preserve of the west but as much a prized possession enjoyed by the Indian scientific community. Dr. Woll, the British genticist admitted that the DNA evidence provided by the Indian scientists’ team to be far superior to the only short tandem repeat (STR) test he had done at another lab goes a long way in spreading the message across about the Indian expertise.

Even the court found the tests done at the CCMB far superior to those done anywhere abroad. It is a great victory to science and scientists of the so called “land of snakes and snake charmers” who, little known as it may be, that they follow rigorous standards and procedures for their scientific tests. Simply because a report is sought from a foreign expert, one cannot accept the results in awe even when it is not supported with proper photographs, documentation and due certification.

Cases such as Premananda’s provide a good opportunity to take science to such authorities for whom new technologies are relevant as well as to many a common man by making the DNA test public knowledge. Dr. Lalji Singh gives a lot of credit in this context to the Tamil Nadu police and commends the timeliness of their action in taking appropriate steps of obtaining the aborted foetal sample from Arul Joythi, and obtaining the court’s permission to send it for DNA testing.

Obtaining the foetus for providing evidence was crucial and of paramount importance in this case. The Swami despite the rape of 13 victims could not be brought to book until the clinching evidence of the DNA test results whereby it was shown that the foetal DNA pattern contained 50% of the bands from its biological father, the Swami, and 50% of the bands from its biological mother Arul Jyothi. Refuting the defence accusations of manipulation of foetal evidences Dr. Lalji said, “the courts must approach the scientific evidence in a scientific way and not suspect it and dub it as connivance with the police. It is impossible for any scientist to mix the sperm and the egg of the accused and the victim to obtain a DNA pattern, for it is a heritable occurrence”. The courts must be urged to adopt a scientific approach to find out the validity and the reliability of the test procedures than viewing the test results with suspicion.

Had the case gone against the CCMB evidence, it would have been a point for the multinational conglomerates to push themselves and their wares to set up shop on Indian soil on the pretext that such expertise was not available within our country, because DNA tests and other genetic tests are a big business abroad. Although there are a number of scientific institutions which carry out the DNA finger printing test including the Indian Institute of Science,(IISc) Bangalore, Tata Institute of Fundamental research, both Bombay and Bangalore, Madurai Kamaraj University of Life Sciences, Anna University, but none of them do the test regularly for anyone because of the repeated court appearances and long pendency of cases.

To standardize on the procedures and guidelines of such genetic tests whose results are sought by courts, Dr. Lalji Singh suggests setting up of a national committee and once the guidelines are laid down, results of such tests must be included in the evidence act as scientific evidence. The association for the promotion of DNA finger printing and other DNA technologies has set up a committee with the initiative from CDFD has formulated standards, quality assurance and guidelines for DNA finger printing. The committee has submitted the report to the association and once the suggested changes are incorporated, the document will be ready for finalization and printing. This document may be considered by the Government of India as a national document in setting up a national committee to review and make necessary changes. Currently, these Guidelines are being followed by the CDFD. Although, the DNA test used to be conducted at the CCMB before, since March 1996, the CDFD has been conducting the DNA and other genetic tests.

The CDFD is an autonomous institution of the department of biotechnology currenty housed in CCMB. It is proposed to have its own building near Himayat Sagar close to the A.P.Police Academy.

Delhi HC orders DNA test to settle maintenance row

Here is an interesting news item on adultery and paternity fraud to come up at Delhi High Court. Delhi High Court rightly availed itself of the benefit of modern technology in a maintenance case filed by wife where paternity was in question.

 

Why not?

• When rapists are convicted based on the DNA evidence;
• When a baby mixed up in a maternity ward is rightfully restored to the biological mother based on the DNA evidence;
• When a man cheating a woman into pregnancy and abandoning the mother and the child is forced into accepting his responsibility based on the DNA evidence;
• When hundreds of convicts on death row are routinely freed in the US based on the DNA evidence;
• Heck! When the most powerful man in the world, the President of US, was impeached based on the DNA evidence;

Then why not, in a blatant case of adultery committed in the broad daylight, the evidence of which is growing by the minute in the form of an illegitimate child born out of the adultery; can we not use DNA evidence to establish the truth?

 

Why not?

 

No more can the Courts in India deny themselves of the benefit of modern technology to get to the truth. The Courts have the moral and legal responsibility to establish the truth and anything less is staunchly against the principles of Natural Justice.  Principles of Natural Justice, a term frequently quoted by all the eminent courts of our country, including our apex court – the Supreme Court, demands TRUTH, whether it is in a murder case or in a paternity case.

 

Below is the news clipping.

Delhi HC orders DNA test to settle maintenance row

NEW DELHI: Faced with claims by a man that he didn’t father a child for whom his estranged wife is seeking maintenance, Delhi High Court has ordered a DNA test of the child to determine his paternity. The man alleges the child was born out of an adulterous relationship.
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Justice Vipin Sanghi has roped in AIIMS to conduct a paternity test on eight-year-old Anup (name changed) to decide if the father, Ravinder (name changed) is the biological father or not. Ravinder had moved HC after a lower court hearing the maintenance petition had rejected his demand for a DNA test on Anup.

“The parentage of the child can only be determined by a DNA test. The liability to pay maintenance under section 125 CrPC can be avoided by the petitioner with respect to this child only if it is established that he is not the biological son of the petitioner,” the judge observed while quashing the lower court’s decision. HC has asked the mother, Sonam (name changed) to ensure her child is present before the AIIMS medical superintendent on May 22 at 11am for the DNA test.

Ravinder had pressed for a DNA test before HC, claiming that Sonam had illicit relations with her brother-in-law and this child was born out of that affair. Wondering why should he be held liable for maintenance when he wasn’t the biological father, Ravinder also claimed he didn’t have physical relations with his wife ten months before Anup was born and therefore suspected her of committing adultery. 
The marriage took place in September 2000 and in June, a year later, Anup was born. Alleging Sonam of having illicit relations, Ravinder walked out of the marriage, only to be slapped with a case of harassment for dowry in 2007 and a case of maintenance a year later. Sonam has demanded maintenance for Anup and her first child whom she had out of her first marriage.

Ravinder’s plea before the magistrate was dismissed after the lower court held that holding of a DNA test will not have any effect on the merits of the case as maintenance petition doesn’t differentiate between a legitimate child and an illegitimate one. But HC favoured Ravinder when he pointed out that his claim is that Anup isn’t his biological child.

abhinav.garg@timesgroup.com