Manas Kumar Boyragi (Poly) Vs. Pallabi Rani Boyragi and another 2018 (1) LNJ 70

Case No: Civil Revision No. 4470 of 2016

Judge: Soumendra Sarker. J.

Court: High Court Division,

Advocate: Mr. S.M. Abul Hossain, Mr. Dipayan Saha,

Citation: 2018 (1) LNJ 70

Case Year: 2017

Appellant: Manas Kumar Boyragi (Poly)

Respondent: Pallabi Rani Boyragi and another

Subject: Civil Law

Delivery Date: 2018-02-15

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION) 

Soumendra Sarker, J.

 

Judgment on

22.08.2017

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Manas Kumar Boyragi (Poly)

. . . Defendant-Appellant-Petitioner

-Versus-

Pallabi Rani Boyragi and another

. . . Plaintiff-Respondent-Opposite parties

Evidence Act (I of 1872)

Section 45

Section 45 of Evidence Act, contemplates that the opinion of the expert is not conclusive evidence and it is not save guard for reading to any conclusion. The facts remains that the opinion of the expert under the purview of section 45 of the Evidence Act, being not conclusive evidence, it can be varied, modified even set-aside after proper analysis of the evidence of the respective parties. The learned court is empowered to give a conclusive decision as to the matter of controversy between the parties after proper adjudication and evaluation of the evidence adduced from the sides of the respective parties. The expert’s opinion is one of the substantive pieces of evidence and the learned court at the time of disposal of the appeal finally can arrive at a concrete decision from all the evidence which is already on records.             . . .(13)

1978 BLD (AD) 142 ref.

Mr. S. M. Abul Hossain,  Advocate

----For the petitioner.

Mr. Dipayan Saha, Advocate

… For the opposite party No. 01 & 02.

JUDGMENT

Soumendra Sarker, J: The Rule issued calling upon the opposite parties to show cause as to why the judgment and order dated 10.11.2016 passed by the learned District Judge, Pirojpur in Family Appeal No. 12 of 2013 should not be set-aside and/or pass such other or further order or orders as to this Court may seem fit and proper.

2.            The facts leading to the issuance of the Rule in a nutshell can be stated thus, the present opposite parties as plaintiffs instituted the Original Family Suit being No. 18 of 2011 in the learned Family court of Vandaria, Pirojpur contending inter alia that the petitioner married the opposite party No. 01 on 24.11.2004 and at the time of marriage the father of the plaintiff gave the defendant a good number of  gold ornaments and cash money amounting to taka 60,000/= for the purpose of business of the defendant. That the marriage was duly consummated and during the subsistence of  marriage the plaintiff No. 01 gave birth of a child, the plaintiff No. 02 on 27.10.2005. Subsequently; the defendant due to ill advise of his parents demanded taka 60,000/= more from the father of the plaintiff and while the father of the plaintiff refused to pay the amount, on 25.04.2005 the defendant drove out the plaintiffs from his residence with only the wearing apparels which constrained the plaintiffs to institute the Original Suit for maintenance and others.

3.            The contrary case of the defendant-petitioner in short is thus, that the plaintiff is not the legally married wife of the defendant and the plaintiff No. 02 Manik Kumar Boiragi is not the son of the defendant. The defendant denied the paternity of the child and filed a written statement stating that on false allegations the plaintiffs have instituted the original suit. The learned family court after trial, decreed the suit on contest vide judgment and decree dated 29.10.2013.

4.            Being aggrieved by and dissatisfied with the impugned judgment and decree the defendant preferred a Family Appeal being No. 12 of 2013 in the court of the learned District Judge, Pirojpur. The learned District Judge during pendency of the appeal passed an order on 06.08.2015 directing to conduct DNA test of the opposite party No. 02 with the petitioner and opposite party No. 1 to ascertain the paternity. Accordingly; on 18.04.2016 the National Forensic DNA Laboratory, Dhaka submitted it’s report stating that the defendant is the biological father of the plaintiff No. 02. Thereafter the defendant-petitioner on 11.08.2016 submitted a written objection against the report of the DNA test and the learned appellate court hearing the same rejected the application on 13.10.2016. Thereafter the defendant on 10.11.2016 filed an application for DNA test afresh to determine the paternity of the child stating that the earlier DNA report does not specify the specimen and sample obtained for the DNA test and that the DNA report itself was not endorsed by the higher officer. The learned District Judge, Pirojpur hearing that application rejected the same by the impugned judgment and order dated 10.11.2016.

5.            Being aggrieved by and dissatisfied with the impugned judgment and order the defendant-appellant-petitioner has preferred this revisional application under section 115(1) of the Code of Civil Procedure and obtained the Rule with an interim order of stay.

6.            During hearing of this Rule Mr. S. M. Abul Hossain the learned Advocate appeared on behalf of the petitioner while Mr. Dipayan Saha he learned Advocate appeared on behalf of the opposite parties.

7.            The learned Advocate appearing on behalf of the petitioner submits that the learned lower appellate court during passing the impugned judgment and order committed illegality and irregularity. The learned Advocate further submits that the court of appeal viz. the learned District Judge, Pirojpur failed to appreciate that the expert who conducted the DNA test, not properly and scientifically concluding the test submitted his report. The learned Advocate also submits that the learned District Judge failed to consider that the DNA report does not specify the specimen and sample obtained for the DNA test. Moreover; the DNA report itself was not endorsed by any higher authority. The learned Advocate also submits that the lower Appellate court during passing the impugned judgment  and order without assigning any reason rejected the application illegally and failed to consider that locus D851179, D21S11, D3S1358, D18S51, D5S818 FGA do not match with the disputed child who is the opposite party No. 02 of this revisional application. The learned Advocate lastly submits that the learned District Judge, Pirojpur failed to determine that the DNA test report being not conclusive for final adjudication into the matter in dispute is not inevitable and as such the impugned judgment and order is not sustainable.

8.            As against the aforesaid submissions of the learned Advocate for the petitioner, the learned Advocate appearing on behalf of the Opposite parties opposing the Rule controverted the argument advanced from the side of the learned Counsel for the petitioner and submits that the learned District Judge, Pirojpur committed no illegality or irregularity in passing the impugned judgment and order. The learned Advocate further submits that the learned District Judge, rightly arrived at a decision that the report of the expert who conducted the DNA test is not conclusive evidence. The learned Advocate also submits that the National forensic DNA Profile Laboratory is the only acceptable recognized Laboratory for DNA test and the Expert Mr. Ashish Kumar Majumder who is a Scientific Officer of the aforesaid Laboratory rightly in presence of both the parties after taking specimen sample from the defendant and the plaintiffs No. 01 and 02  examined the same scientifically and properly and thereafter submitted his report on completion of all official formalities and for that reason there is no necessity for DNA test for the 2nd time which will  prolong the hearing of the appeal and final disposal of the same. The learned Advocate lastly submits that there is no illegality or infirmity in the impugned judgment and order by which the judgment and order passed by the learned appellate court below can be interfered with.

9.            Considering the submissions of the learned Advocates having gone through the impugned judgment and order passed by the learned District Judge, Pirojpur in Family Appeal No. 12 of 2013, along with the  application for holding second DNA examination from the side of the appellant and the order passed by the learned District Judge, i.e. the  appellate court, the written objection filed by the Defendant-Appellant-Petitioner against the DNA analysis report with all other connected papers it transpires that the Original Suit which was instituted by the plaintiff No. 01 was a suit for maintenance which was decreed on 29.10.2013 by the family court Pirojpur in Family Suit No. 18 of 2011. Within the pleading of the plaintiff it was alleged that the defendant is the husband of the plaintiff and the marriage ceremony was held on 24.11.2004. It was further contended in the pleading of the plaintiff-opposite party that the marriage between the plaintiff No. 1 and the defendant was duly consummated and during their weed-lock the plaintiff No. 02 took his birth who is the son of the defendant Manos Kumar Boiragi. 

10.        Vis-à-vis; it is the specific case of the defendant that the plaintiff No. 01 is not the married wife of him and he is not the father of the Plaintiff No. 02. Hence; it is obvious to note that the defendant-appellant-petitioner have challenged the paternity of the child and the existence of marriage between he and the Plaintiff-Opposite party No. 01.

11.        On perusal of the connected papers I find that the learned lower appellate court finding the necessity of ascertaining the paternity of the child decided for examining of DNA profile and for holding DNA examination he passed an order on 06.08.2015. Accordingly; the parties to the suit has complied with the order passed by the learned appellate court and subsequently DNA test was held by an Expert who is the  DNA Analysts  (Scientific Officer), NFDPL, Nuclear Medicine Campus, Dhaka.  With regard to this; the Government of Bangladesh through gazette notification authorized the National Forensic DNA Profile Laboratory for holding DNA examination. The relevant provision is published in the official Gazette, Extraordinary Issue, September 22, 2014, wherein under section 14; the Government has established a DNA laboratory which is the National Forensic DNA profile laboratory, Dhaka. It appears from sub-section (3) of section 14 of the aforesaid Act No. 10 of 2014 that  the Scientific Officer of National Forensic DNA profile laboratory  is officially authorized for conducting DNA examination and pursuant to the order of the court he has taken blood sample and other necessary specimen and also the Locus D851179, D21S11, D3S1358, D18S51,D5S818 FGA  for this examination and after the DNA analysis the scientific officer of the laboratory opined in the following way that, “the defendant Manas Kumar Boyragi (Poly) is the biological father of the Plaintiff No. 02 Manik Kumar Boyragi.”

12.        It further appears that the learned District Judge in the impugned judgment and order rightly held that the report of DNA examination is not the conclusive evidence and that for the 2nd time again same examination will wastage the valuable time of the court, and he rightly rejected the application filed by the Defendant-Appellant-Petitioner for holding DNA examination for the 2nd time by another Laboratory other than National Forensic DNA profile laboratory, Dhaka. The fact remains that the scientific officer who submitted his report is an Expert and the laboratory in which the examination was held is only the recognized DNA laboratory.

13.        Therefore obviously; other than National Forensic DNA profile laboratory there lies no such authentic recognized laboratory from which another report can be called for, which ultimately wastage the valuable time of the curt to arrive at a conclusive decision as to the matter of adjudication between the parties. Section 45 of Evidence Act contemplates that the opinion of the Expert is not a conclusive evidence  and it is not save guard for reading to any conclusion [ Ref. BLD 1978 (AD) 142].  The facts remains that the opinion of the Expert under the purview of section 45 of the evidence Act being not conclusive evidence, it can be varied, modified even set-aside after proper analysis of the evidence of the respective parties. The learned court is empowered to give a conclusive decision as to the matter of controversy between the parties after proper adjudication and evaluation of the evidence adduced from the sides of the respective parties. The Expert’s opinion is one of the a substantive piece of evidence and the learned court at the time of disposal of the appeal finally can arrive at a concrete decision from all the evidence which is already on records.

14.        Be that as it may; I have every reason to inclined such a view that the learned District Judge committed no such illegality or infirmity by which the impugned judgment and order can be interfered with.

15.        In the foregoing narrative; the Rule have got no merit to succeed. In the result; the Rule is discharged. The impugned judgment and order dated 10.11.2016 passed by the learned District Judge, Pirojpur in Family Appeal No. 12 of 2013 is hereby affirmed.

16.        The order of stay granted earlier at the time of issuance of the Rule stands vacated.

17.                   However; there will be no order as to costs.

18.                   Communicate the judgment and order at once.

Ed.



Civil Revision No. 4470 of 2016