K. Harilal, J.

1. This original petition is filed challenging the impugned order passed in Crl.M.P. No.102/14 in M.C. No.42/13 on the files of the Family Court, Mavelikkara filed by the respondent herein. The respondent is a minor girl represented by her mother. The above M.C. was filed by the respondent herein claiming maintenance allowance from the petitioner herein under Section 125(1)(b) of the Cr.P.C. It is alleged in the M.C. that from September 1999 onwards the petitioner showed love and affection towards the mother of the respondent minor child, and they started to reside together from 1999 onwards till December 2000. While so, her mother became pregnant from the petitioner herein and the respondent herein was born on 23/10/2000. It is also alleged in the petition that till December 2000 the petitioner looked after the affairs of the respondent and her mother. Thereafter the petitioner has been neglecting the respondent and her mother and refusing to pay maintenance allowance to them. The respondent is legally entitled to get maintenance allowance from the petitioner under Section 125(1)(b) of the Code of Criminal Procedure. In the above premises, she filed the above M.C. claiming maintenance allowance @ Rs.5,000/- per month.

2. The petitioner filed objection denying the paternity of the respondent and contended that the mother of the respondent had never been the wife of the petitioner. The said M.C. was filed without any bona fides and it is only an experimental exercise to defame the reputation and credibility of the petitioner in the society. It is the further case of the petitioner in the objection that the respondent's mother is the legally wedded wife of one Jayaprasad, and from 13/9/1990 onwards she has been leading a legally valid marital life with the said Jayaprasad and the respondent is the daughter born in the said wedlock with Jayaprasad. He emphatically denied the allegation that he has illicit relationship with the mother of the respondent. According to him, the said Jayaprasad is legally liable to maintain the respondent and the respondent has legal right to claim maintenance allowance from the said Jayaprasad only.

3. When the mother was cross-examined during the course of evidence, a question was put to her as to whether she is ready to prove the alleged paternity of the child by submitting herself to DNA test, and she answered positively. In view of the denial of paternity in the objection and the above challenge during the cross-examination of the mother, the respondent herein filed Crl.M.P. No.102/14, after the cross-examination of the mother with a prayer for directing the petitioner herein to submit himself to DNA test to prove her paternity. It was also submitted that the mother of the respondent is ready to meet all the expenses for conducting the DNA test at Rajiv Gandhi Centre for Bio-Technology, Thiruvananthapuram.

4. The petitioner herein filed objection to the above Crl.M.P. contending that the respondent was born at the time when the valid marital relationship between the mother of the child, and Jayaprasad was subsisting. So the said Jayaprasad has the liability to maintain the respondent and the present petition filed for DNA test is not maintainable in view of the legal presumption under Section 112 of the Indian Evidence Act. So long as the earlier marriage is subsisting, the respondent is the legitimate child in that wedlock only. He prayed for dismissal of the said petition. The court below, after considering the rival contentions, passed the impugned order allowing the petition by directing the respondent to undergo DNA test in Rajiv Gandhi Centre for Bio-Technology, Thiruvananthapuram. The legality and propriety of this order are under challenge in this original petition.

5. Sri. George Varghese Perumpallikuttiyil, the learned counsel for the petitioner, advanced arguments challenging the findings of the court below pointing out the rigour of legal presumption under Section 11