JUDGMENT :

1. Rule. Rule made returnable forthwith. The petition is heard finally by consent of the learned advocates for the parties.

2. In this criminal writ petition, filed under Articles 226 and 227 of the Constitution of India, challenge is to the order dated 16th November, 2021 passed by the learned Additional Sessions Judge, Chandrapur, whereby the learned Additional Sessions Judge allowed the revision filed by the respondent and quashed and set aside the order dated 26th March, 2021 passed by the learned Judicial Magistrate First Class, Rajura, District Chandrapur. The learned Judicial Magistrate First Class, Rajura by his order dated 26th March, 2021 was pleased to allow the application made by the petitioner at Exh.16 in MCA No.70/2014 and directed the petitioner and the respondent to undergo the DNA test at Regional Forensic Science Laboratory, Gourakshan Road, Dhantoli, Nagpur.

3. The facts relevant for the decision of this petition can be summarized as follows:

The respondent Master Omkar Kande (hereafter referred to as the “applicant”) through his mother and natural guardian Sau. Sandhya Rani Madanaiah Kande has filed an application under Section 125 of the Code of Criminal Procedure, 1973 (Cr.PC) seeking maintenance from the petitioner (hereinafter referred to as the “non-applicant”). It is the case of the applicant that non-applicant is his father. The non-applicant married with Sandhya Rani on 10th February, 2005 as per Hindu Rites and Customs. The marriage was registered in the office of the Sub- Registrar of Marriage at Rajura on 15th April, 2006. It is stated that the mother of the applicant is legally wedded wife of the non-applicant. The applicant was born on 27th April, 2007 in the wedlock between the non-applicant and his mother. It is further stated that during the subsistence of marriage, the discord and dispute started on account of illicit extramarital relations of his father with one Sammakka D/o. Bangari Rajya in the year 2009. The mother of the applicant was, therefore, forced to leave the matrimonial home and stay with the applicant at some other place.

4. It is stated that the non-applicant is in the employment of WCL as Cook. His monthly salary is Rs.30,000/-. The applicant has no source of income. He is studying. His mother is spending for his education, tuition fee etc. He, therefore, claimed maintenance of Rs.5,000/- per month from the non-applicant.

5. It is stated that before filing the application, by notice dated 10th March, 2014, the applicant demanded maintenance from the non-applicant. The non-applicant despite receipt of the notice neither replied the said notice nor paid the maintenance. Therefore, through his mother, he filed the application.

6. The non-applicant appeared before the learned Magistrate and filed his reply. The non-applicant opposed the application. He denied the material facts pleaded in the application. He has contended that the allegations made in the application are false and frivolous. Sandhya Rani is not his legally wedded wife. Sandhya Rani is doing service in WCL as Cleaner. She is getting monthly salary of Rs.50,000/- to 60,000/-. She is liable to maintain the applicant. It is his contention that the applicant is not his son. According to him, the mother of the applicant had no sexual relationship with him. He has contended that he is not biological father of the applicant. It is his contention that in order to establish the paternity of the applicant, he is ready to undergo the DNA test. He expressed his readiness to bear the expenses of such test.

7. After filing the reply, the non-applicant made an application at Exh.16 and prayed before the learned Magistrate that for the purpose of a concrete proof of the paternity of the applicant, the DNA test be directed. In this application, he has reiterated the facts stated in his reply, filed in the main application. It is his contention that he is damn sure that he is not the father of the applicant, inasmuch as