Mubassarin and Another vs Mohd.Firoz

Bhagwan Din, J.

This is a petition under Section 482 Cr. PC, by Smt. Mubassarin and Mohd. Afroz alias Sudha for quashing the orders dated 25.8.1999 passed by 1st Additional Chief Judicial Magistrate, Unnao, in criminal Misc. Case No.819 of 1999 under Section 125 Cr.PC (Smt. Mubassarin and another v. Mohd. Firoz alias Budha) and the order dated 16.2.2000 pased by 1st Additional Sessions Judge, Unnao, in Criminal Revision No.119 of 1999 (Smt. Mubassarin and another v. Mohd. Firoz alias Budha).

The facts giving rise to the present petition are that the petitioner Smt. Mubasarin filed an application under Section 125 Cr.PC for grant of maintenance allowance to her and her son Mohd. Afroz alias Sudha against Mohd. Firozopposite party. Opposite party in response to the notice appeared in the Court and filed writtenstatements, wherein he alleged, interalia, that Smt. Mubassarinapplicant is not his wife and also Mohd. Afroz alias Sudha, applicant No.2 is not the son procured out of the union between him and the applicant No.1.

Parties led evidence in support of their respective claims. The trial court, after hearing the parties'' counsel and examining the material evidence available on the record was of the view that the petitioner No.1Smt. Mubassarin is not legally wedded wife of the opposite partyMohd. Firoz. He also held that the applicant No.2 Mohd. Afroz is not the son of opposite partyMohd. Firoz and, therefore, dismissed the application under section 125 Cr.PC by order dated 25.8.99.

Against the above order, Smt. Mubassarin filed a Criminal revision No.119 of 1999 before the Sessions Judge, Unnao, which ultimately cameup for hearing before the 1st Additional Sessions Judge, Unnao on 16.2.2000, who after hearing the parties'' counsel and examining the material evidence on record upheld the finding of the trial court and dismissed the revision. Hence, this petition with the prayer that the order of the courts below dated 16.2.2000 passed by the 1st Additional Sessions Judge, Unnao in Criminal Revision No.119 of 1999 and order dated 25.8.1999 passed by the 1st Additional Chief Judicial Magistrate, Unnao in Criminal Misc. Case No.819 of 1999 may kindly be quashed and the trial court may kindly be directed to allow the blood test of the petitioner No.2 and the opposite party.

Heard Mohd. Abid Ali, learned Counsel appearing for the petitioners and Sri. S.M. Nasir, learned Counsel appearing for the opposite party.

At the very outset, learned Counsel for the petitioners does not challenge the concurrent findings of both the courts holding that petitioner No.1 is not the wife bf opposite party and is not entitled to any maintenance. He, however, pressed the petition as far as it relates to the petitioner No.2 Mohd. Afroz alias Sudha and urged that the findings and observations in the impugned order as far as it relates to the petitioner No.2 be quashed and a direction be issued to the trial court for sending the blood of the petitioner No.2 and that of the opposite party for D.N.A. test.

Learned Counsel appearing for the opposite party opposed the submission of the learned Counsel appearing for the petitioners and contended that an application on behalf of the petitioner No.2 was moved before the trial court on 10.3.1997, contained in Annexure4 to the petition with the prayer that the blood of the petitioner No.2 and opposite party be tested to ascertain whether Mohd. Afroz alias Sudha is the son of opposite party Mohd. Firoz or not. That application was rejected by the trial court vide order dated 24.4.1997. The petitioners were satisfied with that order and did not question the propriety of that order before the revisional court, therefore, it has become final and absolute and cannot be now quashed, modified or revised by any order passed by this court.

It is next contended that the concurrent findings recorded by both the courts below are based on the facts and not on the law hence may not be assailed in the petition under Section 482 Cr.PC. In the last, it is contended that no person may be compelled to give evidence against him.

It is the fact that the trial court rejected the application dated 10.3.1997 and refused to send the blood of the petitioner No.2 and opposite party Mohd. Firoz for D.N.A. test. It is urged by learned Counsel for the petitioner that the petitioners have full hope and believe that the trial court will hold Mohd. Afroz, legitimate or illegitimate son of Mohd. Firoz.

In the instant, the refusal of the trial court to obtain blood of the opposite party and transmit the same with the blood of the petitioner No.2 to the Expert for D.N.A. test and seek experts'' opinion is not final order, because the petitioner No.2 Mohd. Afroz is the son of petitioner No.1 or not was yet to be proved by either oral or documentary evidence and the petitioner No.1 tried to her level best to prove the same, but, failed .order rejecting the application dated 10.3.1999 has merged in the final order, therefore, she filed a criminal revision before the Sessions Judge which proved of no consequence. Hence, she has filed this petition under Section 482 Cr.PC, which is not barred.

So far as relates to the contention of the learned Counsel appearing for the opposite party that the concurrent finding of both the courts below can not be interfered, it is suffice to mention that both the courts below have not recorded finding in the impugned orders that D.N.A. test is not necessarily required for determination of fact that he was born of the union of petitioner No.1 and opposite party. Therefore, the question of concurrent finding on the point involved in this petition does not arise. As far relates to the contention of the learned Counsel appearing for the opposite party that a person cannot be compelled to give evidence against him. It is true that in the criminal litigation, a person can not be compelled to procure or to give evidence against him; but where such evidence is necessary for the court to arrive at the correct decision in the civil litigation, the court may direct such person to cooperate, the court. When the person is fair, the pleas raised by him are genuine, he should not deny to assist the court.

The proceedings under section 125 Cr.PC are quasijudicial proceedings where the legitimacy of the child and social status of the opposite party No.2 is to be decided on evidence. The procurement of the child, out of the wedlock of the petitioner No.1 and the opposite party is under challenge. If the D.N.A. test is not held, he shall be deprived of his right to be maintained by his father, for his no fault. His father had procured him from a woman not married with him. The principle that no accused shall be compelled to give evidence against him is, therefore, not applicable in the present case. Such evidence shall be obtained to protect the right of a child, who has been procured in lustrous act of the two, now denying their liabilities to maintain him.

The petition is partly allowed. The impugned orders of the coin is below as far relate to the petitioner no.2 Afroz are quashed. The trial court is directed to obtain the blood of the opposite party Mohd. Firoz and the blood of Mohd. Afroz and send the same for D.N.A. test to obtain a report of an Expert. After obtaining the D.N.A. test report will pass appropriate orders.

So far as relates to the refusal to grant maintenance allowance to the petitioner No.1 against the opposite party, the petition is dismissed and the impugned orders passed on 25.8.99 passed by the 1st Additional Chief Judicial Magistrate, Unnao in Criminal Misc. Case No.819 of 1999 and the order dated 16.2.2000 passed by the 1st Additional Sessions Judge, Unnao, in Criminal Revision No.119 of 1999 are upheld.

(Petition partly allowed)