Point of Law: The only disadvantage to the child which is put forward as an argument against the use of a blood test, not for therapeutic purposes but to ascertain paternity, is that the child is exposed to the risk that he may lose the protection of the presumption of legitimacy.

ORDER:

This Criminal Petition arises against the order in Crl.M.P.No.2467 of 2013 in M.C.No.46 of 2011 on the file of the II Additional Judicial Magistrate of I Class, Tanuku, dated 25.02.2015 seeking to quash the same under Section 482 of Criminal Procedure Code.

2. Heard the learned counsel for the petitioner and the learned counsel for the 1st respondent.

3. The petitioner herein is the respondent in Crl.M.P.No.2467 of 2013 and as well as in M.C.No.46 of 2011 on the file of the II 1st Additional Judicial Magistrate of I Class, Tanuku and the respondent herein is the petitioner in Crl.M.P.No.2467 of 2013 and the 1st petitioner in M.C.No.46 of 2011 on the file of the II Additional Judicial Magistrate of I Class, Tanuku. The 1st respondent herein along with her daughter filed M.C.No.46 of 2011 against her husband arraying him as the sole respondent under Section 125 of Cr.P.C seeking to pay an amount of Rs.8,000/-per month to the petitioners towards maintenance.

4. The 1st respondent herein who is the petitioner in M.C.No.46 of 2011 contends that she has got acquaintance with the respondent therein/the petitioner herein since 2007 and at that time, he used to tease her with a demand to satisfy his lust by promising that he would marry her, treated her as his wife and enjoyed her sexually. While so, due to sickness, when she went to medical check-up, the doctor informed her that she was carrying and the same was informed to him/the respondent therein with a request to marry her. In turn, he advised her to undergo for abortion which was denied by her and he also denied to marry her. Accordingly disputes arose between them. She submits that having no other alternative, she lodged a report before the concerned police on 23.08.2009 and a crime was registered against the respondent therein. Then, she gave birth to the 2nd petitioner therein on 26.01.2010. For the above said reasons, she claimed maintenance for herself and her child from the respondent therein under Section 125 of Cr.P.C which is pending for consideration. After enquiry, when it was posted for arguments, she also filed Crl.M.P No.2467 of 2013 in M.C.No.46 of 2011 before the trial Court under Section 45 of the Indian Evidence Act seeking to refer the 2nd petitioner therein and as well as the sole respondent therein for DNA test to determine the paternity of the respondent therein with respect to the 2nd petitioner who is a child born to them allegedly, as the respondent therein denied the relationship with her intoto and denied the paternity of the child also. Then the respondent therein filed a counter opposing the prayer sought for to refer the parties to DNA test contending that he was tried for the offences punishable under Sections 417 and 376 of Indian penal Code basing upon a complaint filed by the petitioner therein in S.C.No.87 of 2011 on the file of the Assistant Sessions Judge, Tanuku which was ended in acquittal on merits and the said Crl.M.P No.2467 of 2013 in M.C.No. 46 of 2011 on the file of the II Additional Judicial Magistrate of I Class, Tanuku was filed only to harass and blackmail the respondent therein for extraction of money.

4. After hearing both the sides, the trial court considered the point ‘whether the 2nd petitioner therein is entitled for DNA test as prayed for’ by referring the respondent therein for medical examination. The trial court observed that as per Section 125 of Cr.P.C., the legitimate and illegitimate child are entitled for maintenance from the father, but in this case, the respondent is denying with the acquaintance of the 1st petitioner and not agreeing the 2nd Petitioner as either legitimate or illegitimate child of the 1st petitioner and the respondent therein. So that, the trial court felt it necessary to prove the paternity of the 2nd petitioner to claim maintenance from the respondent and accordingly allowed the said petition for DNA test to take the blood samples of the 2nd petitioner to APFSL, Hyderabad along with the