Heard

1. Challenge in this revision is to the order dated 06.08.2014 passed by the Principal Judge, Family Court, Balod in Misc. Criminal Case No.33/2010, wherein an application preferred on behalf of Prakash Kumar & Harendra Kumar, who are minors, in a proceeding for claim of maintenance along-with their mother for DNA test to confirm the paternity was dismissed.

2. The facts, which are involved in this case, are that, initially, an application under Section 125 of Cr.P.C. was filed by the petitioner No.1 Smt. Rameshwari Bai, claiming to be wife of Ishwar Lal Sahu. The petitioner No.2 Prakash Kumar and petitioner No.3 Harendra Kumar had also joined in that petition and claimed maintenance against his father Ishwar Lal Sahu. The said application for 125 of Cr.P.C. claiming maintenance was rejected by an order dated 08.12.2010 in entirety. Against such order of rejection of the application under Section 125 of Cr.P.C., a Criminal Revision bearing No.21/2011 was preferred, which was decided by an order dated 31.03.2011 by the High Court. The High Court came to a finding that the wife Smt. Rameshwari Bai could not establish that she is legally wedded wife and upheld the finding to that extent but in respect of claim of the minor sons Prakash Kumar & Harendra Kumar, the application was remanded with a finding that the family Courts are under obligation to provide complete opportunity and sufficient assistance to the parties to prove their pleading and claim. Thereby, the revision was partly allowed and the finding of rejection for maintenance relating to Prakash Kumar & Harendra Kumar both the minor sons were set aside and direction was given to decide the case afresh.

3. The records as would show the proceeding again commenced before the family Court Balod on 06.09.2011. During such proceeding, an application was filed by minor sons who were represented by amicus curie for test of DNA of non-applicant father as the father had denied the paternity. The family Court rejected such application on the ground that the respondent has not acceded his consent for such DNA test, therefore, the Court cannot compel the non-applicant (father) to go for DNA test. Thereafter, the proceedings continued. Subsequently, another application for DNA test of non-applicant was filed wherein it was pleaded that the applicant sons can only prove their paternity through the DNA test and no other means are left out. It was further pleaded that the earlier rejection of the application for DNA test was not informed by amicus curie who had represented the minors at the relevant time. Therefore, the DNA test is required to be carried out to prove the paternity of the child. Subsequently, the said application was decided by the order dated 06.08.2014 wherein the learned family Court rejected the application on the ground that on 07.02.2012 an application for DNA test was rejected, therefore, the said prayer cannot be repeated again and the application was dismissed.

4. Learned counsel appearing for the minor child would submit that unless and until DNA test is being carried out in the case, the paternity of the child cannot be established. It is further submitted that categorical submission was made in the second application, which is also supported by the affidavit that after earlier rejection of the application for DNA test was not informed, therefore, no inference of knowledge can be drawn. He further submits that in view of the law laid down in case of Sharda v. Dharmpal, (2003) 4 SCC 493 and in case of Aishwar Dhar Diwan & Others v. Rakesh Diwan, 2006(3) C.G.L.J. 359, the Court can order for DNA test and in such eventuality if despite such oder, the respondent do not wish to go for his DNA, the adverse inference can be drawn.

5. Per contra, learned counsel for the respondent submits that the similar application for test of DNA was rejected on 07.02.2012, therefore, the same cannot be repeated time and again.

6. Perused the record of the Court below. The r