High Court

1. Heard learned counsel for the applicant and learned A.G.A. for the State.

2. This application under Section 482 Cr.P.C. has been preferred against the order dated 09.08.2024, passed by learned First Additional Principal Judge, Family Court, Firozabad, in Case No.1045 of 2022 (Smt Salma Bano Vs. Wajid Ali), under Section 125 Cr.P.C., Police Station- Eka, District- Firozabad, whereby the application filed by the applicant for DNA test of the child (opposite party no.3) has been rejected.

3. It has been submitted by learned counsel for the applicant that applicant is husband of opposite party no.2. After her marriage, since 06.03.2020 the opposite party no.2 has started residing at her parental home and in that connection applicant has also filed a petition under Section 9 Hindu Marriage Act. The opposite party no.2 has filed the aforesaid case under Section 125 Cr.P.C. claiming maintenance for herself and her minor daughter. It was stated that at one place, the age of said child (opposite party no.3) was shown two years, whereas at another place her age was shown one year and these facts and circumstances support the case of applicant that applicant is not biological father of opposite party no.3. The applicant has filed an application for DNA test of himself as well as of opposite party no.3 but the same has been rejected by the Family Court in an arbitrary manner without considering facts and position of law.

4. Learned A.G.A. has opposed the application and submitted that there is no illegality or perversity in the impugned order. It was submitted that opposite party no.3 has born out of wedlock between applicant and opposite party no.2.

5. I have considered the rival submissions and perused the record.

6. Perusal of record shows that the opposite party no.2 is wife of applicant and opposite party no.3 is her daughter. The opposite party nos.2 & 3 have filed case under Section 125 Cr.P.C. for maintenance against applicant. It appears that during proceedings of said case, the applicant has filed an application alleging that since

06.03.2020 the opposite party no.2 was residing at her parental home and that the opposite party no.2 in her application under Section 125 Cr.P.C., has mentioned the age of opposite party no.3 (daughter of opposite party no.2) as two years, whereas in other averment her age was shown one year. In her statement before the Family Court, the opposite party no.2 has stated that she was residing at her parental home since last four years. The marriage between applicant and opposite party no.2 has taken place on 01.01.2020. It was submitted that in view of these facts, it is not possible to conclude that applicant is biological father of opposite party no.3 and thus prayer was made for DNA test of opposite party no.3 to determine her paternity. That application was rejected by the Family Court vide impugned order dated 09.08.2024.

7. At this stage it would be relevant to refer provisions of Section 112 Evidence Act, which read as under:- "112. Birth during marriage, conclusive proof of legitimacy. The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten."

8. From aforesaid provision, it is clear that birth of a child during continuance of a valid marriage between his mother and her husband is considered to be conclusive proof that he is legitimate son of that man, unless it is shown that parties to the marriage have no access to each other at any time when he could have been begotten. Though, the said presumption is rebuttable by evidence of non-access during possible period of conception but in the instant matter except the bald allegation that there is contradiction in the age of the child or that the opposite party no.2 was residing at her parental home when the child could have been begotted, no such evidence has been led that he had actually no access at all to the opposite party no.2 during relevant period when the child could have been begotten. It was held by the Supreme Court in Gautam v. State (1993) 3 SCC 418 : (AIR 1993 SC 2295) that unless it can be shown that the parties to the marriage had no access to each other at any time when the child could have been begotten, there cannot be any roving enquiry by holding blood group test or DNA test to settle the issue of disputed paternity. In the instant case, as stated earlier the applicant is mainly disputing the paternity of opposite party no.3 on the ground that regarding age of the child there is contradiction in the averment of application under Section 125(3) Cr.P.C. as well as in statement of opposite party no.2 recorded before the trial Court. On the basis of such inconsistency in age of child, direction for DNA test of child can not be made.

9. The DNA test relating to paternity of child can not be directed by the Court as a matter of course whenever such a request is made. The Court has to consider several aspects including presumption under Section 112 Evidence Act. Here, it would also be pertinent to mention that proceedings under Section 125 Cr.P.C. are of summary nature and in such proceedings strict standard proof is not necessary. The provisions of Section 125 Cr.P.C. have been enacted with a view to provide summary remedy to neglected wives and children. In view of aforesaid facts and position of law, it can not be said that impugned order is suffering from any patent illegality or that there has been any abuse of the process of the Court. The application under Section 482 Cr.P.C. lacks merit and thus, liable to be dismissed.

10. The application under Section 482 Cr.P.C. is hereby dismissed. Order Date :- 27.1.2025 'SP'/-

1. Heard learned counsel for the applicant and learned A.G.A. for the State.

2. This application under Section 482 Cr.P.C. has been preferred against the order dated 09.08.2024, passed by learned First Additional Principal Judge, Family Court, Firozabad, in Case No.1045 of 2022 (Smt Salma Bano Vs. Wajid Ali), under Section 125 Cr.P.C., Police Station- Eka, District- Firozabad, whereby the application filed by the applicant for DNA test of the child (opposite party no.3) has been rejected.

3. It has been submitted by learned counsel for the applicant that applicant is husband of opposite party no.2. After her marriage, since 06.03.2020 the opposite party no.2 has started residing at her parental home and in that connection applicant has also filed a petition under Section 9 Hindu Marriage Act. The opposite party no.2 has filed the aforesaid case under Section 125 Cr.P.C. claiming maintenance for herself and her minor daughter. It was stated that at one place, the age of said child (opposite party no.3) was shown two years, whereas at another place her age was shown one year and these facts and circumstances support the case of applicant that applicant is not biological father of opposite party no.3. The applicant has filed an application for DNA test of himself as well as of opposite party no.3 but the same has been rejected by the Family Court in an arbitrary manner without considering facts and position of law.

4. Learned A.G.A. has opposed the application and submitted that there is no illegality or perversity in the impugned order. It was submitted that opposite party no.3 has born out of wedlock between applicant and opposite party no.2.

5. I have considered the rival submissions and perused the record.

6. Perusal of record shows that the opposite party no.2 is wife of applicant and opposite party no.3 is her daughter. The opposite party nos.2 & 3 have filed case under Section 125 Cr.P.C. for maintenance against applicant. It appears that during proceedings of said case, the applicant has filed an application alleging that since

06.03.2020 the opposite party no.2 was residing at her parental home and that the opposite party no.2 in her application under Section 125 Cr.P.C., has mentioned the age of opposite party no.3 (daughter of opposite party no.2) as two years, whereas in other averment her age was shown one year. In her statement before the Family Court, the opposite party no.2 has stated that she was residing at her parental home since last four years. The marriage between applicant and opposite party no.2 has taken place on 01.01.2020. It was submitted that in view of these facts, it is not possible to conclude that applicant is biological father of opposite party no.3 and thus prayer was made for DNA test of opposite party no.3 to determine her paternity. That application was rejected by the Family Court vide impugned order dated 09.08.2024.

7. At this stage it would be relevant to refer provisions of Section 112 Evidence Act, which read as under:- "112. Birth during marriage, conclusive proof of legitimacy. The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten."

8. From aforesaid provision, it is clear that birth of a child during continuance of a valid marriage between his mother and her husband is considered to be conclusive proof that he is legitimate son of that man, unless it is shown that parties to the marriage have no access to each other at any time when he could have been begotten. Though, the said presumption is rebuttable by evidence of non-access during possible period of conception but in the instant matter except the bald allegation that there is contradiction in the age of the child or that the opposite party no.2 was residing at her parental home when the child could have been begotted, no such evidence has been led that he had actually no access at all to the opposite party no.2 during relevant period when the child could have been begotten. It was held by the Supreme Court in Gautam v. State (1993) 3 SCC 418 : (AIR 1993 SC 2295) that unless it can be shown that the parties to the marriage had no access to each other at any time when the child could have been begotten, there cannot be any roving enquiry by holding blood group test or DNA test to settle the issue of disputed paternity. In the instant case, as stated earlier the applicant is mainly disputing the paternity of opposite party no.3 on the ground that regarding age of the child there is contradiction in the averment of application under Section 125(3) Cr.P.C. as well as in statement of opposite party no.2 recorded before the trial Court. On the basis of such inconsistency in age of child, direction for DNA test of child can not be made.

9. The DNA test relating to paternity of child can not be directed by the Court as a matter of course whenever such a request is made. The Court has to consider several aspects including presumption under Section 112 Evidence Act. Here, it would also be pertinent to mention that proceedings under Section 125 Cr.P.C. are of summary nature and in such proceedings strict standard proof is not necessary. The provisions of Section 125 Cr.P.C. have been enacted with a view to provide summary remedy to neglected wives and children. In view of aforesaid facts and position of law, it can not be said that impugned order is suffering from any patent illegality or that there has been any abuse of the process of the Court. The application under Section 482 Cr.P.C. lacks merit and thus, liable to be dismissed.

10. The application under Section 482 Cr.P.C. is hereby dismissed. Order Date :- 27.1.2025 'SP'/-