Devi And Others vs Naveen Chandra Arya"
2023 Latest Caselaw 1193 UK

               Office Notes,
              reports, orders
SL.          or proceedings or
      Date                                       COURT'S OR JUDGES'S ORDERS
No            directions and
             Registrar's order
              with Signatures

                                 C482 No.1407 of 2021
                                 Hon'ble Sharad Kumar Sharma, J.

Mr. Naveen Chandra Arya, applicant present in person.

Mr. A.K. Sah, learned Deputy Advocate General along with Ms. Mamta Joshi, learned Brief Holder for the State.

Mr. Kailash Chandra, learned counsel for the private respondent.

Section 125 of Cr.P.C. provides for grant of maintenance to the wife, children and parents, which constitutes as to be a part of the provisions contained under Chapter 9 of the Cr.P.C. The respondent for the purposes of seeking maintenance had filed an application under Section 125 of the Cr.P.C. which was registered as Misc. Case No.330 of 2018, "Smt. Champa Devi and others Vs. Naveen Chandra Arya".

During its pendency, the respondent had filed an application for getting a DNA test conducted by invoking the provision contained under Section 151 of CPC. The said application as preferred by the applicant was numbered as Paper No.18 Kha, which has been allowed by the impugned order of 27.09.2021. As a consequence thereto, the applicant has been directed to appear before the Chief Medical Officer for getting the DNA test conducted.

The issue would be! that once the proceedings under Section 125 of Cr.P.C. falls to be under Chapter 9 of Code of Criminal Procedure even if the powers is to be exercised by the Family Court in that eventuality too, the proceedings if it is required to be governed under Section 10 of the Family Court Act, the applicability of CPC has been ousted to be applied to any of the proceedings under Chapter 9 of Cr.P.C. before a Family Court.

In that eventuality, by virtue of Section 10 of the Family Courts Act, the Code of Civil Procedure will not apply to the proceedings under Section 125 of the Cr.P.C. which constitutes to be a part of the Chapter 9 of the Cr.P.C.

      Since      the   CPC       has      not       been        made
applicable,      the   application preferred               by the

respondent under Section 151 of CPC for getting the DNA test conducted, was not maintainable as the provisions of CPC has been ousted to be made applicable in a proceedings under Section 125 of Cr.P.C. Even otherwise also if the provision contained under the Code of Criminal Procedure is taken into consideration if any of the parties in a lis under any of the provisions contained under the Cr.P.C. for the purpose of getting the DNA test conducted, the Cr.P.C. itself contemplates a provision as contained under Section 53(A)(2)(iv) of Cr.P.C. where an applicant to the proceedings to the Cr.P.C. can invoke the jurisdiction of the competent Court for getting a DNA test conducted.

Since, the application filed was not under Section 53(A)(2)(iv) of Cr.P.C. rather has been preferred under Section 151 of CPC, which is not applicable even in the light of the provisions contained under Section 10 of the Family Courts Act. The application preferred by the respondent under Section 151 CPC was not maintainable.

There is another reason for not to accept the arguments of the learned counsel for the applicant that the provisions contained under Section 151 CPC even if it is taken in its contextual application to the civil proceedings it will only apply in those cases where the CPC itself is silent on the matter or an issue as to in what manner the application has to be governed. The provisions of Section 151 cannot not be generalized in its applicability, particularly, when the Statute itself contemplates a specific provision under the Act or the Code.

Since 151 of CPC is not applicable, apart from the fact that the inherent savings clause of Section 151 CPC is barred to be applied by the judgment rendered by the Hon'ble Apex Court in the case of State of U.P. Vs. Roshan Singh, reported in AIR 2008 SC 1190 and earlier judgment in the case of National Institute of Mental Health Vs. C. Parameshwara, reported in AIR 2005 SC 242, the provisions of Section 151 will not be applicable even by way of a savings clause, particularly, when the Cr.P.C. itself provides a specific provision for getting a DNA test conducted in those proceedings which are governed by the provisions of Cr.P.C. On this limited count itself since inception of the proceedings on which the impugned order of 20.09.2021 has been passed by the Family Court, since was not maintainable right from its inception, the order passed on 27.09.2021 would be void without any competence.

Hence, C482 application would stand allowed. As a consequence thereto, the order dated 27.09.2021 as passed in Misc. Case No.330 of 2018, in a proceedings under Section 125 of Cr.P.C. "Smt. Champa Devi Vs. Naveen Chandra Arya" would hereby stand quashed.

(Sharad Kumar Sharma, J.) 28.04.2023 Sukhbant