Section 112 of the Indian Evidence Act provides conclusive proof of legitimacy of a child born during a valid marriage, and admissions by the husband can render a DNA test unnecessary.

JUDGMENT

M.G. Sewlikar, J. - Rule. Rule made returnable forthwith. With the consent of the parties, heard finally at the admission stage.

2. By this application, respondent husband in Criminal Misc. Application No. 2887 of 2013 is challenging order passed by the learned Judicial Magistrate First Class (Court No. 11), Aurangabad dated 03/01/2019 below Exh. 54, thereby rejecting the application Exh. 54.

3. Facts for the purpose of disposal of this application can be succinctly stated as under :

Applicant No. 1 is the husband of respondent No. 1. Their marriage was solemnized on 5.5.1992. Their marriage is on the rocks therefore, applicant No. 1 and respondent No. 1 filed a petition for divorce by mutual consent under Section 13B of the Hindu Marriage Act, 1955. However, the said application did not reach its logical end as the respondent withdraw her consent. Thereafter, respondent No. 1 filed application under Section 18 (a) (f), 19 (f) and (8) and 20 (b) & (d) of the Protection of Women from Domestic Violence Act, 2005 (DV Act). Respondent No. 1 claims that respondent Nos. 2 and 3 are the children born out of the wedlock.

4. Applicant No. 1 caused his appearance in the said petition under D.V. Act and denied the paternity of respondent Nos. 2 and 3. According to the applicant No. 1, respondent Nos. 2 and 3 were born out of illicit relations of respondent No. 1 with one Pravin Keni, who was living near the house of applicant No. 1. Applicant No. 1 therefore, filed application Exhibit 54 in proceeding No. Criminal Misc. Application No. 2887 of 2013 under D.V. Act for seeking DNA test of respondent Nos. 1 to 3. In the said application applicant No. 1 contended that respondent No. 1 was living in adultery and out of her adulterous relations with the said Pravin Keni she has begotten respondent Nos. 2 and 3.

5. Respondent No. 1 resisted this application contending that applicant No. 1 has admitted in other proceedings that respondent Nos. 2 and 3 are the children born to respondent No. 1 from applicant No. 1. She, therefore, prayed for rejection of the application.

6. This application came to be rejected by the learned Judicial Magistrate First Class (Court No. 11), Aurangabad. This order is impugned in this revision.

7. Heard Shri. A.D.Kasliwal, learned counsel for the applicants and Shri A.R. Devkate, learned counsel for the respondents.

8. Shri Kasliwal, learned counsel for the applicants submitted that in Civil Suit for partition applicant No. 1 had filed an application seeking direction for respondent Nos. 1 to 3 to undergo D.N.A. test. According to Shri Kasliwal, learned counsel for the applicant has all along been contending that respondent Nos. 2 and 3 were not born to respondent No. 1 from him. He contended that this application was allowed by the Civil Court. This order was challenged by respondent No. 1 in Writ Petition No. 1680 of 2014. This Writ Petition was disposed of with a direction that the petitioner (applicant herein) has to establish his case by adducing evidence and then the petitioner may make an application for referring the parties to D.N.A. test which application shall be considered by the Court on its own merits.

9. He further submitted that Exhibit 54 was allowed by the learned Trial Court. This order was challenged before this Court. This Court was pleased to set aside the said order dated 8.10.2015 and the matter was remanded to the Trial Court for deciding the application Exh. 54 afresh by giving opportunity of hearing to both the parties. Thereafter, this application came to be rejected. He submitted that now applicant No. 1 and respondent No. 1 tendered their respective evidence before the learned Trial Court. Even then application has been rejected. He submitted that in this era of technology and in view of technical advancement, it will not be desirable to rely on the presumption under Section 112 of the Indian Evidence Act. He submitted that the D.N.A. test is accurate and undergoing DNA test will not cau