# Smt. Sonia Srivastava & Anr v. State of U.P. & Anr

- **Citation:** (2023) 4 ILRA 803
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-19
- **Case number:** Application U/S 482. No. 35136 of 2022
- **Bench:** Umesh Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-sonia-srivastava-anr-v-state-of-u-p-anr-50029
- **Pages:** 6

## Headnote

Law
-
Code
of
Criminal
Procedure, 1973 - Section 125 - Application
u/s 125(6) Cr.P.C. rejected-Applicant defrauded
by opposite party stating himself to be widowerapplicant no.2 was born out of their wedlockopposite party was ready to give sample for
D.N.A. test but did not appeared for it-nor paid
the fees- and has recalled the order for D.N.A.
test-Trial Court without adjudicating opposite
party
as
biological
father
under
legal
presumption u/s 14 of Evidence Act-without
D.N.A. test-bad- one more opportunity granted
for giving D.N.A. sample and depositing the
fees-if fails Family Court would be free to draw
the inference-if D.N.A. test found positive -
Applications u/s 125 & 125 (6) Cr.P.C. shll be
decided.

Application allowed. (E-9)
804 INDIAN LAW REPORTS ALLAHABAD SERIES
List of Cases cited:

## Text

4 All. Smt. Sonia Srivastava & Anr. Vs. State of U.P. & Anr.
803
sanction can not be a ground to quash the
criminal proceeding in exercise of power
under
Section
482
CrPC
is
rather
impermissible and if there is need of
sanction under Section 197 CrPC, the Court
may direct the authority to take sanction
and then proceed in stead of quashing the
entire proceeding. The same view has been
taken in Fertico Marketing Vs. Central
Bureau of Investigation CBI (2021) 2SCC
525.

19. In para 11 of Inspector of Police
and others Vs. Battenaptala Venkata
Ratnam, AIR 2015 (SC) 2403, it has been
held that the alleged indulgence of the
officers in cheating, fabrication of records
or misappropriation cannot be said to be in
discharge of their official duty. Their
official duty is not to fabricate records or
permit evasion of payment of duty and
cause loss to the Revenue. Unfortunately,
the High Court missed these crucial
aspects. The learned Magistrate has
correctly taken the view that if at all the
said view of sanction is to be considered, it
could be done at the stage of trial only.

20. Here the learned Trial Court has
not opined that the alleged commission of
crime by the applicant is in connection or
nexus with his official discharge of duty,
hence, he proceeded with the case in
absence of prior sanction under Section 197
CrPC.

21. This Court is also in conformity
with the conclusion of the learned Trial
Court. This Court does not find the alleged
occurrence having any connection with the
discharge of official duty entrusted to the
applicant. Hence, there would be no need
of prior sanction before taking cognizance
and passing the impugned summoning
order.

22. On the basis of above discussion,
this Court is of the considered view that
this application under Section 482 CrPC is
not maintainable and is liable to be
dismissed.

23. This application under Section
482 CrPC is dismissed accordingly.
----------
(2023) 4 ILRA 803
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.04.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Application U/S 482. No. 35136 of 2022

Smt. Sonia Srivastava & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Ashwani Kumar Sachan, Sri Saurabh
Sachan

Counsel for the Opposite Parties:
G.A., Sri Anil Kumar Mishra

Criminal
Law
-
Code
of
Criminal
Procedure, 1973 - Section 125 - Application
u/s 125(6) Cr.P.C. rejected-Applicant defrauded
by opposite party stating himself to be widowerapplicant no.2 was born out of their wedlockopposite party was ready to give sample for
D.N.A. test but did not appeared for it-nor paid
the fees- and has recalled the order for D.N.A.
test-Trial Court without adjudicating opposite
party
as
biological
father
under
legal
presumption u/s 14 of Evidence Act-without
D.N.A. test-bad- one more opportunity granted
for giving D.N.A. sample and depositing the
fees-if fails Family Court would be free to draw
the inference-if D.N.A. test found positive -
Applications u/s 125 & 125 (6) Cr.P.C. shll be
decided.

Application allowed. (E-9)
804 INDIAN LAW REPORTS ALLAHABAD SERIES
List of Cases cited:

1. Sharda Vs Dharmpal (2003) 4 SCC 493

2. Bhabani Prasad Jena Vs Convenor Secretary,
Orissa St. Comission for Women AIR 2010 SC
2851

3. Y.B. Patil Vs Y.L. Patil (1976) 4 SCC 66

4. Badshah Vs Urmila Badshah Godse & anr.,
(2014) SCC 188

(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

1. This application has been filed by
the applicants to quash the order dated
20.07.2022 passed by Principal Judge
Family Court, Kanpur Nagar, in Case No.
555 of 2015 under Section 125(6) Cr.P.C.
and direct the opposite party no. 2 to pay
the interim maintenance to the tune of Rs.
30,000/- per month (Rs. 20,000/- to the
applicant no.1-wife and Rs. 10,000/- to
applicant no.2-daughter) and also direct the
Trial Court to take all necessary steps
immediately to enforce the orders dated
27.3.2018 and 24.9.2019 for conducting the
D.N.A. test of opposite party no.2 for
ascertaining his biological paternity of the
applicant no. 2.

2. In brief, facts of the case are that
the opposite party no.2 by creating a
deception that he was widower whose wife
expired 8 years ago had solemnized a
second marriage with applicant no. 1
through Arya Samaj rituals on 19.2.2006
and from their cohabitation applicant no.2
was born on 14.1.2007. Later on, when it
revealed that wife of opposite party no.2
namely Smt. Mamta Sharma was alive, he
stated that he will convince his wife and
children born from first wife then he will
introduce the applicant in his home.
Resultantly, an F.I.R. dated 15.9.2007
under Section 494 I.P.C. has been lodged
by the applicant against her husband in
which charges have been framed. But due
to scarcity of basic resources causing
difficulty in survival and living with
comfort with her new daughter and due to
complete dependence on her brothers, the
applicant wife had moved application under
Section 125 Cr.P.C. On 22.7.2015 for
seeking maintenance but due to dilatory
tactics of the husband in deciding the
aforesaid application and refusal from
giving not even a penny, the wife was
constrained to move an application under
Section 125(3) Cr.P.C. for getting interim
maintenance for salvage and survival of her
daughter and herself.

3. The opposite party no.2 in reply to
the aforesaid applications, had flagrantly
claimed that he was neither a biological
father nor has adopted the applicant no.2
and there was no marriage ever solemnized
with the applicant no. 1. Hence, he is not
bound
to
maintain
an
stranger.
Surprisingly, simultaneously he is also
baldly emphasizing that he is a pauper
person with no source of income. Opposite
party no. 2 is mentioned as father of
applicant no. 2 in her every document from
birth certificate to school admission form
and I-card. There are genuine photographs
from which it is tangible that opposite party
no.2 is a husband of the applicant no.1 and
father of applicant no.2. Due to flagrant
denial by opposite party no.2 as husband of
applicant no.1 and biological father of
applicant no.2, the applicant no. 1 moved
an
application
dated
27.3.2018
for
conducting D.N.A. test profiling and
identification test to establish the paternity
of her daughter as opposite party no. 2 is
the biological father of her daughter,
applicant no.2. Initially the opposite party
no.2 had given consent to give her blood
4 All. Smt. Sonia Srivastava & Anr. Vs. State of U.P. & Anr.
805
sample for D.N.A. identification. On
5.8.2019 the opposite party no.2 was
directed to deposit the requisite amount fee
for D.N.A. testing but he filed recall
application which was rejected by the Trial
Court on 24.2.2019.

4. Against the order dated 24.2.2019,
a highly belated application U/S 482
Cr.P.C. No. 5983 of 2020 was filed by
opposite party no.2 wherein till date no
final order has been passed. Thereafter,
from the conduct of husband, the Trial
Court came to conclusion that he was not
interested for D.N.A. test and on 2.11.2019
recorded in the order-sheet that husband is
procrastinating
the
proceedings
and
actually he is not ready for D.N.A. test, he
was lingering on the proceedings. Hence,
the Trial Court proceeded and observed
that it will take legal presumption u/s 114
of The Evidence Act against opposite party
no. 2. Surprisingly, the Trial Court without
adjudicating the aspect that opposite party
no. 2 is biological father of applicant no. 2
under legal presumption under Section 114
of the Evidence Act and is bound to
maintain his daughter and wife as he had
solemnized
second
marriage
after
defrauding the applicant no. 1 and that he is
bound to undergo D.N.A. test, in a cursory
& hasty manner dismissed the application
under Section 125 (6) Cr.P.C. Vide
impunged order dated 20.7.2022. The
applicant no. 1 declares that her daughter
Km. Tanishka is the natural and biological
daughter of the opposite party no.2-
Ramesh Chandra Sharma, born from their
wedlock and she declares on behalf of
applicant no. 2 that she is ready to undergo
any D.N.A. test for the purpose of
establishing and proving the fact that she is
not the child of any unknown paternal
identity and opposite party no. 2 is her
natural & biological father and she is
entitled to get maintenance from him. The
applicant
no.
2
is
an
unemployed
abandoned
married
women,
she
is
absolutely financially dependent on her
brothers. Indeed she is qualified as Masters
but after birth of applicant no. 2 she is
completely engrossed in bringing and
rearing her up.

In support of his submission,
learned counsel for the applicants has
placed reliance on the following judgments:

(a) Sharda Vs. Dharmpal (2003)
4 SCC 493

(b) Bhabani Prasad Jena Vs.
Convenor
Secretary,
Orissa
State
Comission for Women AIR 2010 SC 2851

(c) Y.B. Patil Vs. Y.L. Patil
(1976) 4 SCC 66

(d)
Badshah
Vs.
Urmila
Badshah Godse & Anr., (2014) SCC 188.

It has been contended that on the
basis
of
above
cited
case-laws
the
impugned orders be quashed and the relief
claimed by the applicants be granted.

5. Opposite party no. 2 appeared and
filed counter affidavit and stated that
neither the applicant no. 1 is legally weded
wife nor the applicant no. 2 is his biological
daughter, he is already married to Smt.
Mamta Sharma and has children with her.
The application under Section 125 Cr.P.C.
is misconceived and not maintainable at all.
The allegations are false and fabricated
only to harass him for making money from
him. The application under Section 125
Cr.P.C. was filed in the year 2015 and the
application 125 (6) Cr.P.C. has been moved
806 INDIAN LAW REPORTS ALLAHABAD SERIES
in the year 2020 after lapse of 5 years
which itself shows sanctity of the bogus
applicants. The opposite party no. 2 was
ready to give sample for D.N.A. Test but
the applicant herself moved application on
9.9.2019 for recalling the order dated
5.8.2019 and upon such application the
Trial Court has recalled the order dated
5.8.2019 vide order dated 3.11.2019.
Though the order dated 5.8.2019 has been
challenged by him in Application u/S 482
No. 5893 of 2020 but the same has become
infructuous after recall of the order dated
5.8.2019. The trial Court has wrongly
drawn the presumption under Section 114
of the Evidence Act. The opposite party no.
2 is neither biological father of the
applicant no. 2 nor adopted father of the
applicant no. 1 and no marriage has been
solemnized and proved with the applicant
no. 1, therefore, he is not bound to pay
maintenance to the strangers in any way
and as such the Trial Court has rightly
rejected the application of the applicant
under Section 125 (6) Cr.P.C. Hence, this
application be also rejected.

6. No rejoinder affidavit has been
filed by the applicants.

7. Heard Sri Saurabh Sachan, learned
counsel for the applicants, Sri Anil Kumar
Mishra learned counsel for opposite party
no.2 as well as Sri Pankaj Tripathi, learned
A.G.A. and perused the record.

8. It is admitted to both the parties
that opposite party no. 2 is already legally
married person with one Smt. Mamta
Sharma. According to the applicant no. 1
she was defrauded by opposite party no. 2
saying himself to be widower therefore she
solemnized marriage with opposite party
no.2 and out of their cohabitation, applicant
no. 2 has born. Certainly, in all the papers
opposite party no.2 is mentioned as father
of the applicant no.2. There are some
photographs which show primafacie that
once upon a time the applicants and
opposite party no. 2 remained together and
spent pleasure time with each other and
they have also visited some tourist places
where they got their photographs clicked
together.

9. Opposite party no.2 could not deny
such photographs. It has also not been
contended that such photographs are the
result of trick photography. The opposite
party no. 2 has been shown as father of
opposite party no. 2 in Nagar Nigam
records and also in school records of
applicant no.2, however, there is no proof
that any application for quashment of the
same has been moved/filed by the opposite
party no.2. It is obvious from the ordersheet that initially the opposite party no.2
had consented to give blood sample but
when the Court ordered to pay him the
requisite fee for conducting the D.N.A. test,
he did not come forward and did not pay
fee to comply with the order of the Court.
Therefore, the Court was bound to draw
adverse inference against him in this
regard. There is no need to discuss the law
regarding question of D.N.A. testing as it
has been propounded in several decisions
by the Apex Court that taking sample for
D.N.A. is not in violation of Article 20 (3)
of the Constitution of India.

10. Neither the applicants nor the
opposite party no.2 have filed the copy of
the Application U/S 482 Cr.P.C. No. 5893
of 2020 to know as to what grounds have
been taken by opposite party no.2 therein.
However, from evidence on record it is
crystal clear that though the opposite party
no.2 was ready to undergo the D.N.A. test
but he neither deposited the requisite fee
4 All. Smt. Sonia Srivastava & Anr. Vs. State of U.P. & Anr.
807
nor attended the hospital on the date fixed
by the Trial Court rather he filed the
petition under Section 482 Cr.P.C. for
which he did not take pain to get it decided
at the earliest. The demeanor and attitude
of opposite party no2 has been considered
by the Trial Court and an order has been
passed that when opposite party no.2 is not
undergoing
D.N.A.
test,
in
such
a
circumstance an adverse legal presumption
would be drawn against him. Though till
now
no
such
adverse
presumption/inference has been drawn by
the Trial Court. This Court is of the view
that it is a matter of discussion and serious
scrutiny as to whether a person who is
denying to undergo the D.N.A. test, his
sample can be taken forcefully or not. Even
in the citation cited by the applicants'
counsel, the Apex Court has held that if a
person is denying to undergo with D.N.A.
testing, an adverse inference would be
drawn against him and the case would be
proceeded on that basis and such adverse
inference would be considered at the time
of final disposal of the case.

11. An application under Section
125(6) Cr.P.C. had been moved by the
applicant no. 1 for interim maintenance
which was declined on the ground that till
now it has not been proved that the
applicant no. 1 is the legally wedded wife
of opposite party no.2 and applicant no.2 is
the biological daughter of him.

12. This Court is of the opinion that
an application under Section 125 Cr.P.C.
could be decided positively on the basis of
documents supplied by the applicants.
There is school document in which
opposite party no.2 has been recorded as
father of the applicant no.2, there is a
document of Nagar Nigam Kanpur that a
female child was born on 14th January,
2007 in Navyug Nurshing Home, whose
mother is applicant no. 1, Smt. Sonia
Srivastava and whose father is opposite
party no. 2, Ramesh Chandra Sharma. Both
these documents have not been legally
challenged by the opposite party no. 2. The
photographs in which the applicants and
opposite party no.2 are shown together, are
also primafacie evidence to establish the
relations between the applicants and
opposite party no.2. According to this
Court, on the basis of these documents and
the adverse inference drawn against the
opposite party no.2 the Trial Court was
competent to decide the application under
Section
125
Cr.P.C.
and
also
the
application under Section 125 (6) Cr.P.C.

13. Though in some cases it has been
held that legally married Hindu male or
Hindu and Muslim women already married,
can not claim that he or she is in live-inrelationship but the instant case is different
as the contention of applicant no. 1 is this
that opposite party no.2 who was already
married concealing his marital status
contacted her and solemnized marriage
with her and cohabited with her that led to
the birth of applicant no. 2. In such a
situation in addition to above evidence a
ground of live-in-relationship may also be
considered by the Trial Court, if the same is
being proved. It has also to be borne in
mind that according to Section 16 of The
Hindu Marriage Act, any child born out of
void and voidable marriages, shall be
treated to be legitimate child

14. This Court is of the view that with
regard to drawing adverse inference against
opposite party no. 2, an exhaustive and
comprehensive order was required to be
passed but no such order has been passed
by the Trial Court. According to this Court,
one more opportunity may be provided to
808 INDIAN LAW REPORTS ALLAHABAD SERIES
the opposite party no.2 for depositing the
fee and for giving sample for D.N.A. test
and if he fails to do so, the Family Court
shall be free to draw the adverse inference
against opposite party no.2 regarding
paternity of applicant no.2. This fact would
be kept in mind that generally a woman and
a girl child would not made such claim
which may diminish their character, career,
honour, respect etc. for any false claim
forever.

15. When the case of applicant no. 1
is that opposite party no.2 solemnized
marriage with her concealing his martital
status with his wife Smt. Mamta Sharma, it
has to be seen whether the alleged second
wife is entitled for maintenance or not.
Certainly, a woman living in live-inrelationship is entitled to maintenance. It is
the Trial Court who will ascertain on the
basis of evidence that applicant no.1 had
lived in live-in-relationship with opposite
party no. 2 for some time or not. It appears
contradictory that on one hand the Trial
Court has concluded that on the basis of
non compliance for participation in D.N.A.
test, an adverse inference shall be drawn
against the opposite party no.2 and on the
other hand it has dismissed the interim
maintenance application.

16. On the basis of above discussion,
the application under Section 482 Cr.P.C. is
liable to be allowed.

Order

The application is allowed in the
following terms:

(a) One month more time is
provided to opposite party no.2 for giving
D.N.A. sample and depositing the requisite
fee, if he fails to do so within the above
stipulated period, the Family Court would
be free to draw the adverse inference
against the opposite party no.2 and
thereafter opposite party no.2 would not be
compelled to give the sample for D.N.A.
test.

(b) If result of the D.N.A. test is
found positive and in favour of the
applicants, the applications under Section
125 and Section 125 (6) Cr.P.C. shall be
decided taking help of such report. If
D.N.A. test report is not obtained due to
non-cooperation of the opposite party no.2,
the Court shall proceed with the case on the
basis of adverse inference drawn by it
alongwith oral and documentary evidence
filed by the parties.
----------
(2023) 4 ILRA 808
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.04.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Application U/S 482. No. 35595 of 2022

Rashmi Devi ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Sri Akash Chandra Maurya

Counsel for the Opposite Parties:
G.A.

Criminal
Law
-
Code
of
Criminal
Procedure,1973
-
Section
173
(2)-
Impugned order allowed the final reportaccepted without assigning any reason-applicant
claim self posted signature of the Applicant
upon
the
notice
was
produced-but
no
handwriting expert was sought-on submission of
police report u/s 173(2) Cr.P.C.-Magistrate