Judgment · High Court

State of C.6] TTirough SHO Station- Rajnsndgoan (C.S.) Khairagarh Sashlksla W/o iVianga! Yadsv Aged sbout 35 years R/o Bazar Attaria, Tehsi!- Dist- Khairogarh, Rsjnandgoan M- Chhuiekhadan Tehsi!- Chhuiekhsdcn Dist- RcjnandgoGn (C.S.) pi'essnt Deepsk (Minor) S/o AAanga! yodav Aged about years R/o Bszaf Attaria 3 Pinku (Allinor) S/o AAangQl yodav Agsd about 2 years Soth we Through Mother- Sashikalsa, R/'o-.At-orssent at Chhuiekhcdan Tshsii- Chhuiekhadan Dist- Rainonddoan (C.G. ie Bench; Hon'ble Jus.tice

Mr. 6.5. Ahluwclio, Advoccte for the petitioner. Miss Deeps!i Pandey, Panel Laiii/yer for State/respondents Sy this pstition, filed under Art!cle 227 of the Constitution of Indis, the petitioner seeks for a writ in the nature of certiorari, qucsshing the order lated 3.2.2007 (Annexure P-4), passed by the Additicma|_Session Judge, KhGi'ragcrh in Criminal Revision No. 106/2006 and further the petitioner be not be directsd to go for deoxyribonueleic scid (&.N.)A,.) tsst. The brief facts, in nutshei!, are that. Qccordina to the oetitioner. the petitjoner has no relation i'jitn the respondent No. 2, who cioimed to be wifs of the petitioner. It wss further clcimed by the r'esponderit No. 2 thct ths respondents No. 3 ond 4 (i-ninor) children were born withirs the relationship bstween the petftionsr and respondsnt No. 2. TTius, they ars entit'ed to gr'snt of maintenance linder Section 125 of the Code of C"imins! Procedure (for shor't, "Cr.P.C.").

In vieHi' of the fact thct the petitio.ner has denied relationship ond has not cooperated with the case, it iness felt necessary to direct the petitioner to fa.ee the deoxyi"ibonuc!eic seid (&.N.A.) test. A Learned triai Judgs, »vhi!e hear'ing cn application for deoxyribonuclsic cc'id (D.N.n.) test filed by tha respondent No. 2, hs!d thet the r-sspondent No. 2 hsd fsiled to producs any documents to estsbHsh thot the respondsnts No. 3 and 4 are their chiidr-en. Tne respondent No. 2 is not a iegcilly weddad wife, thus, shs was not entitied to grant of mGintencnca. The respondents No. 3 cnd 4, whc are allegadiy the chiidrer] of the petitioner cnd ths respondent No. 2, rnw be granted maintsncnee under the prcvisions of 125 of the Code of Criminai Procedure. Learned trial Judgs in Crimins! Revision No. 106/2006 after hesririg both t.he parties at tength vide order datsd 3.2.2007 (Annsxure P-4) he!d that in sbaence of any docuirien+s to prove the fsctum of the "elstionship between the petitioner and the respondent No. 2 and fur+her birth of t.he r'espondents No. 3 and 4 from their i'eietionship, it wcs necessary to direct the petitioner to undergo for deoxyr'iboniicieic acid (t5.N.A.) tsst. Even otherwise, if the petitioner is innocsnt, petitioner- should be rsady to face D.N.A. test to prove his innocence. Tne petstioner is stron9!y opposed to

This Court whiie considsring the same issue in Sharik Ahmad (Advocate) ys. Swdar Lal. W.P. (C) No. 1010 of 2007, decided on 12th March, 2007, heid os under;- "9. The poternity of the child can be proved froin other evidences frorn the fact thst .both the psrsons were having physicai relctions, when Kircin Bai concsived snd o chiid was bcrn during thct cariod. cs a r'ssult of their' reSatiornhiD. This is for a oerson who is intsrested in deRyina the fsctum of physica! r'e'ations snd birth of a chiid during that period to rebut the allegstion of 'rfis mother of the son. Appiyjng the i&'s!) settled principles of law, to the faets of the present cass, it appears that the Court bslow hcs not exswined ths pQternit)/ on the basis of other' svidences bsfore dir'aeting DNA test. "

6. In visw of that, this petition is partly ailowed tc the above extsnt. Tne matter is remittsd back to the Court of the Additiona! Session Judga, Khaira9Sfh with a direction to decide the issue on the basis of other evidences before passing a direction for deoxyribonucieic acid (&.N.A.) tsst. la" Conseauently. I.A. No. 01, aBDiication for arant of ad-intsrin' relief, stsnds of. Sd/- Satish K. Agnihotri Judge Subhash