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Civil Appeal Nos. 6222-6223 of 2010, Arising out of SLP(C) Nos. 22905-22906 of 2009. Case: Bhabani Prasad Jena Vs Orissa State Commission for Women and Anr.. Supreme Court (India)

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Case NumberCivil Appeal Nos. 6222-6223 of 2010, Arising out of SLP(C) Nos. 22905-22906 of 2009
JudgesAftab Alam and R.M. Lodha, JJ.
IssueOrissa (State) Commission for Women Act, 1993 - Sections 3, 10; Special Marriage Act, 1954 - Sections 13, 25(iii); Evidence Act - Sections 4, 12, 112; Hindu Marriage Act, 1955 - Section 13(1)(iii)
CitationAIR 2010 SC 2851, JT 2010 (8) SC 85, 2010 (7) SCALE 582, 2010 (8) SCC 633
Judgement DateAugust 03, 2010
CourtSupreme Court (India)

Judgment:

R.M. Lodha, J.

  1. Leave granted.

  2. Two questions arise for consideration-first, the extent of power of the State Commission for Women constituted under Section 3 of the Orissa (State) Commission for Women Act, 1993 (for short, 1993 Act') and then, as to whether the High Court of Orissa was justified in issuing direction for deoxyribonucleic acid test (DNA) of the child and the appellant who, according to the mother of the child, was its father suo motu. These questions arise in this way. On May 15, 2007, Bhabani Prasad Jena-the appellant and Suvashree Nayak-respondent no. 2 got married. The certificate of marriage was issued by the Marriage Officer, Khurda, Bhubaneswar on June 30, 2007 under Section 13 of the Special Marriage Act, 1954 (for short, 1954 Act'). In less than three months, to be precise, on August 7, 2007 the appellant filed a petition under Section 25(iii) of the 1954 Act in the Court of District Judge, Khurda, Bhubaneswar for a declaration that the marriage between him and the respondent no. 2, registered on June 30, 2007 was nullity and the said marriage has not been consummated. In that matrimonial proceedings, the respondent no. 2 has filed written statement and traversed the allegations made in the petition. She also claimed permanent alimony to the tune of Rs. 10,00,000/-. It is not necessary to refer to the matrimonial proceedings in detail; suffice, however, to observe that the said proceedings are pending.

  3. On December 30, 2008 the respondent no. 2 filed a complaint before Orissa (State) Commission for Women (for short, State Commission') alleging that she was married to the appellant and due to torture meted out to her by the appellant and his family members and other issues, they have separated; she has no source of income and she was pregnant. Based on the said complaint, the State Commission issued notices to both the parties. On April 20, 2009, the parties appeared before the State Commission. The appellant submitted his written reply to the complaint and stated that marriage between the parties was invalid due to fraud and coercion and that he has already applied to the District Court, Khurda for declaring the marriage null and void.

  4. The Chairperson, State Commission passed an order on May 11, 2009 issuing the following directions:

    1. Maintenance is compulsory for the petitioner, as she has to have safe delivery and take care of the baby.

    2. Compensation amount would be minimum 50% of Gross salary amount of Sri Bhabani Prasad Jena, Surgent. Amount to be placed in the A/C of the mother directly by the office of DDO (Drawl and disbursing officer).

    3. Delivery expenses of Smt. Nayak will be borne by Sri Bhabani Prasad Jena as per actual.

    4. D.N.A. test of Smt. Nayak will be conducted through S.P., Nawarangpur and report is sent to OSCW for future reference.

    In the said order, it was observed that the aforesaid directions are subject to the final order of the appropriate court.

  5. The appellant challenged the aforesaid order by filing a writ petition before the High Court of Orissa. The appellant took the position that he has not fathered the child in the womb of respondent no. 2 and there has been no relationship of husband and wife since August 7, 2007 (the date of filing of the matrimonial case before the District Judge, Khurda). It should be noted here that a letter was sent by the respondent no. 2 to the Chief Justice of Orissa High Court on June 9, 2009 giving the history of relationship between her and the appellant; their marriage; harassment meted out to her by the appellant and his family members; advanced stage of her pregnancy and that she was staying at Sanjivani Ma Ghar. She prayed for justice as her delivery was expected on June 15, 2009. The vacation Judge treated the said letter as writ petition and on June 9, 2009 itself directed the Chief District Medical Officer, Bhubaneswer to admit the respondent no. 2 in the Capital Hospital at the cost of the State and the matter was ordered to be posted after vacation before the regular bench. It may also be noted that a day earlier i.e., on June 8, 2009 the Division Bench passed an interim order in the writ petition filed by the appellant staying the operation of clauses 2 and 3 of the order passed by the State Commission but clarified that directions regarding maintenance and DNA are not stayed.

  6. On August 7, 2009, the High Court took up both writ petitions for consideration and passed an order directing that the DNA of the child shall be conducted in the SCB Medical College and Hospital, Cuttack and the appellant shall also give his blood sample for the purpose of DNA. This order is impugned in the present appeals by special leave.

  7. The 1993 Act was enacted by the Orissa State Legislature to constitute a State Commission for Women and to provide for matters connected with or incidental thereto. Functions of the Commission are specified in Section 10 which reads thus:

    S.10.- Functions of Commission-(1) The Commission shall perform all or any of the following functions, namely:

    (a) make indepth studies on-

    (i) the economic, educational and health situation of the women of the State, with particular emphasis on the tribal districts and areas which are under developed with respect to women's literacy, mortality and economic development.

    (ii) condition in which women work in factories, establishments, con-struction sites and other similar situations,

    and recommend to the State Government on the basis of...

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