The judgment emphasizes the protection of women under the Domestic Violence Act, the limited applicability of DNA tests in such cases, and the importance of evidence in establishing claims.

JUDGMENT

Prakash D. Naik, J. - Heard both sides for final disposal. The applicant has invoked the revisional jurisdiction of this Court to challenge the legality of order dated 16th February, 2016 passed below Exhibit-18 in CC No. 36/DV/2015 passed by Metropolitan Magistrate, 27th Court, Mulund, Mumbai as well as the order dated 20th December, 2016 passed by Additional Sessions Judge, Bombay in Criminal Appeal No. 790 of 2016.

2. The relevant facts which are necessary to determine the issue involved in this matter are as follows :-

a) The respondent No. 1 and the revision applicant were known to each other since 1996. Since then they were in a relationship. Subsequently, on 14th February, 2001 their marriage was solemnized. The respondent No. 2 was born on 10th March, 1998.

b) The respondents filed application under Section 12 of the Protection of Women from Domestic Violence Act (hereinafter referred to as "D.V. Act") which was numbered as 36/DV/2015. The respondents had invoked Sections 12, 18, 19, 20 and 22 of the D.V. Act. The application was filed on 13th March, 2015.

c) The revision applicant filed his reply to the said application on 22nd June, 2015 and denied the contention of respondents.

d) The applicant preferred an application vide Exhibit-18 in the aforesaid proceedings praying that DNA test of respondent No. 2 be allowed to be conducted to establish his paternity by directing the respondent no. 1 and 2 to cooperate and submit themselves for DNA test of respondent no. 2. The said application was preferred on 19th November, 2015.

e) Respondent No. 1 filed her reply vide Exhibit-20 on 16th December, 2015.

f) The learned Magistrate rejected the said application by order dated 16th February, 2016. The said order was challenged by the applicant before the Sessions Court, Mumbai by preferring Criminal Appeal No. 790 of 2016. The respondent No. 1 filed her reply opposing the reliefs in the said appeal on 30th November, 2016. The appeal was dismissed by Sessions Court by order dated 20th December, 2016.

3. In the circumstances, the revision applicant has preferred this application by invoking Section 397 of Criminal Procedure Code challenging the aforesaid impugned orders.

4. The learned Counsel for the applicant put forth following submissions :-

(i) The impugned orders are contrary to law. The Courts have misconstrued the provisions of Section 112 of Indian Evidence Act.

(ii) The presumption enumerated under Section 112 of the Evidence Act is unavailable in the facts of this case.

(iii) The appellate Court has rejected the appeal without assigning reasons and without discussing the submissions and the judgments relied upon by the applicant.

(iv) The investigation in the form of DNA report was just and necessary in view of subsequent information received by the applicant to dispel any doubts for the parties who are litigating.

(v) The Courts failed to appreciate that by allowing the DNA test the entire controversy in respect of legitimacy of respondent No. 2 will be proved conclusively.

(vi) The Courts below failed to appreciate the observations made by the Apex Court in several decisions with regards to need for conducting DNA test.

(vii) The presumption under Section 112 of the Evidence Act is applicable in the event there was marriage between the parties.

(viii) The Courts failed to appreciate that the applicant is not biological father of respondent No. 2 which fact was disclosed to the applicant by respondent No. 1 herself. She had also named the person who is supposedly the biological father of respondent No.2.

5. The learned Advocate for the applicant has drawn support from the following decisions :-

Nandlal Wasudeo Badwaik Vs. Lata Nandlal Badwaik & Another. , (2014) 2 SCC 576, Narayan dutt Tiwari Vs. Rohit shekhar & Another. , (2012) 12 SCC 554; Dwarika Prasad Satpathy Vs. Bidyut Prava Dixit and Anr , (1999) 7 SCC 675; Dipanwita Roy Vs. Ronobroto Roy,2014 SAR(Civ) 1165; Soma Rama Chandram and Others. Vs. The Stat