Manjulata and another v. Satendra), whereby the application filed by

3. Learned counsel for the applicant submitted that opposite party no.2 is wife of applicant and she has initiated aforesaid proceedings under Section 125 Cr.P.C. During pendency of the proceedings, applicant has filed an application alleging that both the parties were residing separately since 10.10.2007 and after that applicant has no access to the opposite party no.2, whereas she has given birth to a child in the year 2009 and another child was born in the year 2012 and thus, the applicant is not biological father of the said children. The applicant has filed an application for DNA test of applicant and alleged child for determination of paternity of said child but that application of applicant has been rejected by the Family Court by ex-parte order dated 31.05.2023. The applicant has filed an application to recall the said ex-parte order, which has been rejected by the Family Court vide impugned order dated

12.06.2024. Learned counsel submitted that the impugned order is against facts and law and thus, liable to be set aside.

4. Learned counsel for the opposite party no.2 has opposed the application and submitted that the aforesaid proceedings under Section 125 Cr.P.C. were initiated by opposite party no.2 and 3 way back in the year 2015 and ex-parte judgement of maintenance was passed on 10.11.2015. The application under Section 126 Cr.P.C. to recall the said ex-parte judgement was rejected by the Family Court vide order dated 16.09.2016. The applicant has challenged said order by filing application under Section 482 No.7550 of 2021, wherein the application of applicant under Section 126(2) Cr.P.C. was allowed subject to condition that applicant shall deposit the entire outstanding amount of maintenance. It was submitted that the proceedings of the aforesaid case are continuously being delayed by the applicant and application for DNA test was moved with intention to delay the proceedings. It is further submitted that there is no illegality or perversity in the order impugned.

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

6. Perusal of record shows that the opposite party no.2, who is wife of applicant, has filed case under Section 125 Cr.P.C. claiming maintenance for herself and her minor son. During pendency of the case, applicant has filed an application alleging that since

10.10.2007 the opposite party no.2 was residing separately and that applicant is not biological father of the child / opposite party no.3 born in the year 2009 and thus, prayer was made for DNA test of said child and applicant. That application was rejected by the Family Court vide order dated 31.05.2023 by holding that in proceedings under Section 125 Cr.P.C. there was no justification for filing of such application and the said application was barred by provisions of Section 112 Evidence Act. Though, the Family Court has not decided the said application of applicant on merits but the said order is not being impugned in the instant proceedings.

7. Further, from provisions of Section 112 Evidence Act, 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 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. 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.

8. It is also apparent from the impugned order that the proceedings of the aforesaid case are continuously being delayed by the applicant and that observation of the Family Court that the said application was moved with intention to delay is not without any basis.

9. In view of aforesaid facts and circumstances, the application filed by applicant to recall the order dated 31.05.2023 was rightly rejected. However, while rejecting the said application, learned, Family Court has imposed costs of Rs.5000/- upon the applicant. In view of attending facts, the imposition of said costs appears to be excessive and arbitrary. Thus, the costs of Rs.5000/- imposed upon the applicant by Family Court stands waived and quashed but the rejection of the application of the applicant vide impugned order dated 12.06.2024 is uphled. The impugned order stands altered to that extent.

10. The application under Section 482 Cr.P.C. is disposed of accordingly. Order Date :- 11.2.2025 RKM RAJESH KUMAR MAURYA High Court of Judicature at Allahabad

3. Learned counsel for the applicant submitted that opposite party no.2 is wife of applicant and she has initiated aforesaid proceedings under Section 125 Cr.P.C. During pendency of the proceedings, applicant has filed an application alleging that both the parties were residing separately since 10.10.2007 and after that applicant has no access to the opposite party no.2, whereas she has given birth to a child in the year 2009 and another child was born in the year 2012 and thus, the applicant is not biological father of the said children. The applicant has filed an application for DNA test of applicant and alleged child for determination of paternity of said child but that application of applicant has been rejected by the Family Court by ex-parte order dated 31.05.2023. The applicant has filed an application to recall the said ex-parte order, which has been rejected by the Family Court vide impugned order dated

12.06.2024. Learned counsel submitted that the impugned order is against facts and law and thus, liable to be set aside.

4. Learned counsel for the opposite party no.2 has opposed the application and submitted that the aforesaid proceedings under Section 125 Cr.P.C. were initiated by opposite party no.2 and 3 way back in the year 2015 and ex-parte judgement of maintenance was passed on 10.11.2015. The application under Section 126 Cr.P.C. to recall the said ex-parte judgement was rejected by the Family Court vide order dated 16.09.2016. The applicant has challenged said order by filing application under Section 482 No.7550 of 2021, wherein the application of applicant under Section 126(2) Cr.P.C. was allowed subject to condition that applicant shall deposit the entire outstanding amount of maintenance. It was submitted that the proceedings of the aforesaid case are continuously being delayed by the applicant and application for DNA test was moved with intention to delay the proceedings. It is further submitted that there is no illegality or perversity in the order impugned.

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

6. Perusal of record shows that the opposite party no.2, who is wife of applicant, has filed case under Section 125 Cr.P.C. claiming maintenance for herself and her minor son. During pendency of the case, applicant has filed an application alleging that since

10.10.2007 the opposite party no.2 was residing separately and that applicant is not biological father of the child / opposite party no.3 born in the year 2009 and thus, prayer was made for DNA test of said child and applicant. That application was rejected by the Family Court vide order dated 31.05.2023 by holding that in proceedings under Section 125 Cr.P.C. there was no justification for filing of such application and the said application was barred by provisions of Section 112 Evidence Act. Though, the Family Court has not decided the said application of applicant on merits but the said order is not being impugned in the instant proceedings.

7. Further, from provisions of Section 112 Evidence Act, 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 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. 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.

8. It is also apparent from the impugned order that the proceedings of the aforesaid case are continuously being delayed by the applicant and that observation of the Family Court that the said application was moved with intention to delay is not without any basis.

9. In view of aforesaid facts and circumstances, the application filed by applicant to recall the order dated 31.05.2023 was rightly rejected. However, while rejecting the said application, learned, Family Court has imposed costs of Rs.5000/- upon the applicant. In view of attending facts, the imposition of said costs appears to be excessive and arbitrary. Thus, the costs of Rs.5000/- imposed upon the applicant by Family Court stands waived and quashed but the rejection of the application of the applicant vide impugned order dated 12.06.2024 is uphled. The impugned order stands altered to that extent.

10. The application under Section 482 Cr.P.C. is disposed of accordingly. Order Date :- 11.2.2025 RKM RAJESH KUMAR MAURYA High Court of Judicature at Allahabad