(From previous issue) :
51. Pre-marital relationship, whether physical or otherwise, between unmarried couple is a sensitive issue in this country because of the restrictions of the rules of Religion and people have general tendency to suppress it unless compelled.
52. In the above context the DNA test report (Exhibit-X) need to be looked into. The report contain the analysis of data of the DNA of the child and also of both plaintiff and defendants. The conclusion of the report is quoted below.
“The putative father Md Saydur Rahman is the biological father of the disputed child, Md Biman, He cannot be excluded as being the biological father of the child Md Biman as he possesses all the genetics markers that should be contributed to the child by a biological father. The probability of the stated relationship is 99.99999%. ”
53. With regard to credibility of the DNA test report, the Court Witness Mrs Tanya Hossain stated that the DNA Laboratory conducted the test as per internationally recognized standard, and that the Laboratory is under the control of the Government and run by qualified people under the supervision of professor Sharif Akteruzzaman Phd.
54. The DNA test, for the purpose of identification of parentage and of individuals, is relatively a new technology in this country and not used frequently. But it has been accepted worldwide as a reliable scientific method for various purposes including determination of parentage.
55. The instances of statutory recognition of DNA test as a reliable scientific method for identification of individuals and also of parentage are significant in western countries some are as follows:
(1) DNA Analysis Backlog Elimination Act, 2000. US Law (Authenticated by US government Information) Source: www.gpo.gov/ fdsys/pkg/PLAW-106. pub1546.
(2) DNA Identification Act, (Passed in 1998) by Canadian legislature. Published by Minster of Justice at the Source: the website//laws lois justice. gc.ca/eng/acts/D-3.8.
56. Other countries like Australia, UK have also accepted the DNA technology for identification of individuals for various purposes like crime detection, parentage etc.
57. In those countries various cases have been reported both in hard copies and electronic copies, showing acceptance of DNA test as an established scientific method for identification of individuals.
58. John M Butler, is a Fellow and also working scientist of the National Institute Standards and Technology of USA (as in 1999), and also a renowned author. In his book titled “Forensic DNA Typing (Second Edition), published by Elsevier Academic Press (in 2005), page 529, John M Butler, writes as follows:
“Besides its use in criminal investigations, DNA data plays an important role in parentage and kinship testing”.
59. In that book M Butler, states in details the methods and the scientific basis of determination of parentage based on DNA test. He states the number of paternity tests in the US as follows:
“Every year in the United States more than 3,00,000 paternity cases are performed where the identity of the father of the child is in dispute (The American Association of Blood Banks [AABB] 2003). These cases typically involve the mother, the child and one or more alleged fathers”.
60. Again in the book titled “An Introduction to Forensic DNA Analysis (Second Edition), published by CRC and written by Nora Rudin (Forensic DNA Consultant) and Keith Inman (Senior Criminalist California Department of Justice DNA Laboratory) writes as follows: page257).
“DNA analysis is one of the greatest technical achievements for criminal investigation since the discovery of fingerprints. Methods of DNA profiling are firmly grounded in molecular technology. When profiling is done with appropriate care, the results are highly reproducible. In particular, the methods are almost certain to exclude an innocent suspect”.
61. In our country, there is nonspecific law on DNA test nor any widely known author. But the Evidence Act, 1872 (section-61) approves admissibility of expert opinion as evidence. The provision is also applicable to admissibility of DNA test report in evidence.
62. However in my considered view is that in directing a DNA test courts must be cautious about the probable result of a DNA test exposing a child to a socially deplorable condition as a bastard child. It is preferable to direct it up on application.
63. In the instant case, I hold that the DNA Test Report (Exhibit-X-series) prepared by the Government DNA Laboratory is a credible evidence. The conclusion of the Report as quoted earlier is consistent with the admitted birth of the child Md Biman during continuance of the marriage and also with the statements of the PWs that the child was born with 10/11 months after solemnization of the registration.
64. I also hold that, although the fact of solemnization of the marriage before registration was not stated in the plaint, the statement of the PW’s on this aspect are definitively corroborated by the independent and credible evidence as recorded in the DNA test Report. So the evidence the PWs about solemnization of the marriage before registration are relevant, admissible and credible evidence.
65. Accordingly I conclude that the child Md Biman was born out of the wedlock between the plaintiff and the defendant and the resultant physical relationship. The child Md Biman is legitimate son of the defendant. Consequently he is entitled to maintenance from the defendant.
66. The trial court has fixed the monthly maintenance of the child at the rate of Taka 1,000 as prayed for by the plaintiff.
67. The learned Advocate for plaintiff submits the amount is insufficient for a growing child.
68. In consideration of the monthly maintenance of Taka 1,000 as prayed for by the plaintiff for the child and the amount of monthly the maintenance of Taka 2,500 allowed to the plaintiff herself and the financial condition as reflected in the statement of the neighbour witness PW 4 that both sides are very poor, hold that the monthly maintenance for the child should be increased by Taka 200 after every year reckoned from the date of delivery of this Judgment (19-5-2014).
69. In view of the above findings, I hold that the Rule issued in Civil Revision No. 4049 of 2011, at the instance of the defendant Md. Saydur Rahman, has no merit and it is liable to be discharged.
70. On the other hand the Rule issued in Civil Revision No.4153 of 2012, at the instance of the plaintiff Beautiful Bibi, is to be made absolute.
71. In the result, the Rule issued in CR No. 4049 of 2012 is discharged and the Rule issued in CR 4153 of 2012 is made absolute. The judgment of the appellate Court is modified as follows:
(a) The finding of the appellate Court about legitimacy of the son Md Biman is set-aside and it is held that Md Biman is the legimate son of the defendant Md Sydur Rahman.
(b) Md Biman is entitled to a monthly maintenance of Taka 1,000 as fixed by the trial Court, and it will be increased by Taka 200 after every year to be reckoned from the date of delivery of this judgment (19-5-2014).
(c) The other decisions of the trial court are upheld.
No order as to cost.
72. Send down the lower court record with a copy of this Judgment, along the original additional evidence taken in the Revision, namely the original of the deposition of Court witness No. I and the original of Exhibit-X, X( I) and X(2). The photocopies of the said deposition and the Exhibits X, X(1) and X(2) attested by the Bench officer shall be retained.
(Concluded)
51. Pre-marital relationship, whether physical or otherwise, between unmarried couple is a sensitive issue in this country because of the restrictions of the rules of Religion and people have general tendency to suppress it unless compelled.
52. In the above context the DNA test report (Exhibit-X) need to be looked into. The report contain the analysis of data of the DNA of the child and also of both plaintiff and defendants. The conclusion of the report is quoted below.
“The putative father Md Saydur Rahman is the biological father of the disputed child, Md Biman, He cannot be excluded as being the biological father of the child Md Biman as he possesses all the genetics markers that should be contributed to the child by a biological father. The probability of the stated relationship is 99.99999%. ”
53. With regard to credibility of the DNA test report, the Court Witness Mrs Tanya Hossain stated that the DNA Laboratory conducted the test as per internationally recognized standard, and that the Laboratory is under the control of the Government and run by qualified people under the supervision of professor Sharif Akteruzzaman Phd.
54. The DNA test, for the purpose of identification of parentage and of individuals, is relatively a new technology in this country and not used frequently. But it has been accepted worldwide as a reliable scientific method for various purposes including determination of parentage.
55. The instances of statutory recognition of DNA test as a reliable scientific method for identification of individuals and also of parentage are significant in western countries some are as follows:
(1) DNA Analysis Backlog Elimination Act, 2000. US Law (Authenticated by US government Information) Source: www.gpo.gov/ fdsys/pkg/PLAW-106. pub1546.
(2) DNA Identification Act, (Passed in 1998) by Canadian legislature. Published by Minster of Justice at the Source: the website//laws lois justice. gc.ca/eng/acts/D-3.8.
56. Other countries like Australia, UK have also accepted the DNA technology for identification of individuals for various purposes like crime detection, parentage etc.
57. In those countries various cases have been reported both in hard copies and electronic copies, showing acceptance of DNA test as an established scientific method for identification of individuals.
58. John M Butler, is a Fellow and also working scientist of the National Institute Standards and Technology of USA (as in 1999), and also a renowned author. In his book titled “Forensic DNA Typing (Second Edition), published by Elsevier Academic Press (in 2005), page 529, John M Butler, writes as follows:
“Besides its use in criminal investigations, DNA data plays an important role in parentage and kinship testing”.
59. In that book M Butler, states in details the methods and the scientific basis of determination of parentage based on DNA test. He states the number of paternity tests in the US as follows:
“Every year in the United States more than 3,00,000 paternity cases are performed where the identity of the father of the child is in dispute (The American Association of Blood Banks [AABB] 2003). These cases typically involve the mother, the child and one or more alleged fathers”.
60. Again in the book titled “An Introduction to Forensic DNA Analysis (Second Edition), published by CRC and written by Nora Rudin (Forensic DNA Consultant) and Keith Inman (Senior Criminalist California Department of Justice DNA Laboratory) writes as follows: page257).
“DNA analysis is one of the greatest technical achievements for criminal investigation since the discovery of fingerprints. Methods of DNA profiling are firmly grounded in molecular technology. When profiling is done with appropriate care, the results are highly reproducible. In particular, the methods are almost certain to exclude an innocent suspect”.
61. In our country, there is nonspecific law on DNA test nor any widely known author. But the Evidence Act, 1872 (section-61) approves admissibility of expert opinion as evidence. The provision is also applicable to admissibility of DNA test report in evidence.
62. However in my considered view is that in directing a DNA test courts must be cautious about the probable result of a DNA test exposing a child to a socially deplorable condition as a bastard child. It is preferable to direct it up on application.
63. In the instant case, I hold that the DNA Test Report (Exhibit-X-series) prepared by the Government DNA Laboratory is a credible evidence. The conclusion of the Report as quoted earlier is consistent with the admitted birth of the child Md Biman during continuance of the marriage and also with the statements of the PWs that the child was born with 10/11 months after solemnization of the registration.
64. I also hold that, although the fact of solemnization of the marriage before registration was not stated in the plaint, the statement of the PW’s on this aspect are definitively corroborated by the independent and credible evidence as recorded in the DNA test Report. So the evidence the PWs about solemnization of the marriage before registration are relevant, admissible and credible evidence.
65. Accordingly I conclude that the child Md Biman was born out of the wedlock between the plaintiff and the defendant and the resultant physical relationship. The child Md Biman is legitimate son of the defendant. Consequently he is entitled to maintenance from the defendant.
66. The trial court has fixed the monthly maintenance of the child at the rate of Taka 1,000 as prayed for by the plaintiff.
67. The learned Advocate for plaintiff submits the amount is insufficient for a growing child.
68. In consideration of the monthly maintenance of Taka 1,000 as prayed for by the plaintiff for the child and the amount of monthly the maintenance of Taka 2,500 allowed to the plaintiff herself and the financial condition as reflected in the statement of the neighbour witness PW 4 that both sides are very poor, hold that the monthly maintenance for the child should be increased by Taka 200 after every year reckoned from the date of delivery of this Judgment (19-5-2014).
69. In view of the above findings, I hold that the Rule issued in Civil Revision No. 4049 of 2011, at the instance of the defendant Md. Saydur Rahman, has no merit and it is liable to be discharged.
70. On the other hand the Rule issued in Civil Revision No.4153 of 2012, at the instance of the plaintiff Beautiful Bibi, is to be made absolute.
71. In the result, the Rule issued in CR No. 4049 of 2012 is discharged and the Rule issued in CR 4153 of 2012 is made absolute. The judgment of the appellate Court is modified as follows:
(a) The finding of the appellate Court about legitimacy of the son Md Biman is set-aside and it is held that Md Biman is the legimate son of the defendant Md Sydur Rahman.
(b) Md Biman is entitled to a monthly maintenance of Taka 1,000 as fixed by the trial Court, and it will be increased by Taka 200 after every year to be reckoned from the date of delivery of this judgment (19-5-2014).
(c) The other decisions of the trial court are upheld.
No order as to cost.
72. Send down the lower court record with a copy of this Judgment, along the original additional evidence taken in the Revision, namely the original of the deposition of Court witness No. I and the original of Exhibit-X, X( I) and X(2). The photocopies of the said deposition and the Exhibits X, X(1) and X(2) attested by the Bench officer shall be retained.
(Concluded)
