The main legal point established in the judgment is the necessity of DNA testing to determine parentage in cases of disputed paternity, the superiority of scientific evidence over legal presumptions, and the entitlement of an illegitimate child to receive maintenance under Section 125 of the Code of Criminal Procedure.

DEBI PROSAD DEY, J.

1. This application under Article 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure has been filed challenging the order dated November, 26, 2015 of Misc. Case No. 166 of 2009 passed by learned Judicial Magistrate, first court Purulia whereby and whreunder learned Magistrate has rejected the application of the petitioner for conducting the DNA test of the opposite party no. 1 to ascertain the parentage of the petitioner.

2. Affidavit of service reveals that opposite party no. 1 refused to accept the copy of the application along with annexure thereof. Learned Advocate for the State Mr. Ayan Basu is present. The factual matrix of the case under reference is that the mother of the minor petitioner lodged a complaint in writing with the Purulia (M) police station alleging that the opposite party no. 1 had promised to marry her and on the promise of such marriage allured her to cohabit with him on several occasions, as a consequence of which she became pregnant. The opposite party no. 1 however being aware of the pregnancy of the mother of the petitioner, refused to marry her and accordingly such written complaint was filed with the Purulia (M) police station. After investigation, charge was framed against opposite party no. 1 under Section 376 and 417 of the Indian Penal Code. After completion of trial learned trial Court convicted opposite party no. 1 in sessions case no. 123 of 2008 corresponding to sessions trial no. 46 of 2008 for the offence punishable under Section 376/417 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for 10 years and to pay a fine of Rs. 1,00000/- to the mother of the petitioner. However, the said order of conviction and sentence was set aside by a Division Bench of this Court in CRA No. 208 of 2012. The relevant portion of the observation of the Division Bench in CRA No. 208 of 2012 may be reproduced below:-

“What transpires from the evidence on record is that there was prolonged cohabitation between the prosecutrix and the accused appellant which led to pregnancy of the prosecutrix and the prosecutrix gave birth to a child.

From the evidence it may reasonably be inferred that the accused appellant is the father of the child born to the prosecutrix. A DNA test would have conclusively proved whether the accused appellant was the child’s father or not.

A DNA test may have conclusively established that the accused appellant was the father of the child. In other words, a DNA test would have established whether there was cohabitation between the accused appellant and the prosecutrix. However, the question of whether cohabitation was consensual or whether the prosecutrix had been raped by the accused appellant would not be resolved by a DNA test.”

3. Learned Advocate appearing on behalf of the petitioner contended that an application for DNA test and DNA mapping for such minor petitioner along with the opposite party no. 1 could have answered the dispute of parentage of the minor petitioner. It is further submitted that the prosecutrix namely the mother of the minor petitioner gave birth to the present petitioner as a result of such continuous cohabitation with opposite party no. 1 and an application under Section 125 of the Code of Criminal Procedure was filed on behalf of the minor Seema Mahato claiming maintenance from opposite party no. 1. It is apparent from the copy of the written statement filed by opposite party no. 1 in the trial Court that the opposite party no. 1 has emphatically denied about the parentage of the present petitioner on the ground that the mother of petitioner is a lady of questionable character and there was absolutely no cohabitation in between the mother of the petitioner as well as the opposite party no. 1, which resulted the birth of the minor petitioner.

4. It is therefore apparent from such emphatic denial of opposite party no. 1 that it is necessary to ascertain the parentage of the minor