Allahabad High Court
Anil Kumar vs Principal Judge Family ... on 8 July, 2019
Bench: Chandra Dhari Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 28
Case :- MISC. SINGLE No. - 18505 of 2019
Petitioner :- Anil Kumar
Respondent :- Principal Judge Family Court,Barabanki And Ors.
Counsel for Petitioner :- Mohammad Naseerullah,Mohd. Masood Hasan
Hon'ble Chandra Dhari Singh,J.
Present petition under Article 227 of the Constitution of India has been filed against the judgment and order dated 15.03.2019 passed by Principal Judge Family Court,Barabanki on an application (Kaa-33) moved by the applicant for DNA test of opposite parties no.2 and 3 for purpose of determination of paternity of opposite party no.3 in Case No.233 of 2014, under Section 125 Cr.P.C., Smt. Monika and another vs. Anil Kumar, P.S. Kotwali, Barabanki.
Brief facts of the case are that an application under Section 125 Cr.P.C. has been filed by opposite party nos.2 and 3 against the petitioner in the court of Principal Judge Family Court, Barabanki. The petitioner has put his appearance and has filed objection denying all the allegations made in the application. He has moved an application bearing No. Ka 31, under Sections 126(1), 125 (4) and 125(5) Cr.P.C. for dismissal of the application under Section 125 Cr.P.C. on the ground of lack of jurisdiction. He also moved an application (Ka-33) under Section 45 of the Evidence Act read with Section 243 Cr.P.C. for D.N.A. test for opposite party no.2 and 3 along with him and also one Ram Kumar for determination of the paternity of opposite party no.3. It is alleged in the application that opposite party no.3 is not born out of wedlock of the petitioner and opposite party no.2 as opposite party no.2 is living separately for long period.
Learned counsel for the petitioner submitted that application under Section 125 Cr.P.C. has been filed by opposite party nos.2 and 3. Since opposite party no.3 is not the child of the petitioner, therefore, determination of paternity of opposite party no.3, DNA test is required.
He further submitted that admittedly opposite party no.2 has not filed any objection on the application of the petitioner in which DNA test was sought. He has pointed out that the court below without taking into consideration facts and circumstances of the case, has rejected the application for seeking D.N.A. test of opposite party no.3.
Per-contra learned A.G.A. pointed out that the State has not been made as party in the petition. He also stated that since application has been finally disposed of by court below, therefore, petition under Section 227 of the Constitution of India is not maintainable. Only criminal revision lies.
He also submitted that as per Section 112 of Evidence Act:-
"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."
He further submitted that while dealing with contentions made in the said application the court below has considered entire facts of the case as well as legal propositions established by law.
He has alternatively submitted that merely separation between the parties is not sufficient for D.N.A. test. There is no illegality in the impugned order.
I have heard learned counsel for the petitioner, learned A.G.A. and perused the record.
Impugned order 15.03.2019 passed by Principal Judge Family Court,Barabanki is final in nature. The court below has also considered the requirement of Section 112 of Evidence Act and has correctly given finding that for direction of D.N.A. test. Intention of legislation is to be looked whether both parties are able to access with each other. Only merely living separately is not sufficient ground for direction of D.N.A. test of any party.
Considering the facts and circumstances of the case, I do not find any illegality or infirmity in the impugned order dated 15.03.2019 passed by Principal Judge Family Court,Barabanki.
The writ petition is accordingly dismissed.
Order Date :- 8.7.2019
Asha
