We have heard learned counsel appearing for the appellant.

2. This Special Appeal arises out of the order dated 28.11.2014 passed by learned Single Judge, by which he has disposed of the S.B. Criminal Writ Petition No.222/2014 (FIR No.28/2014 under Sections 494, 498A, 468, 418, 120B of the Indian Penal Code) and stay application, rejecting the prayer for issuing directions for a DNA Test of accused-respondents No.5 & 6.

3. The criminal writ petition filed before learned Single Judge arose out of the proceedings initiated by the appellant-wife against her husband Shri Sandeep Berad under Sections 498A and 494 of the Indian Penal Code, for having entered into the marriage with Abhilasha Abusaria, and living allegedly in adultery, with her. She alleged the offences of cruelty and bigamy against her husband. During the pendency of the proceedings in the trial, an application was filed by the appellant for a DNA test of her husband Sandeep Berad, and the child alleged to have been born from the illicit relations. In the hospital records, Abhilasha did not give name of the father of her child as Sandeep Berad.

4. The application for DNA Test was rejected. It was submitted by Public Prosecutor before learned Single Judge that the accused were asked for DNA Test, but they refused to undergo the test. It was stated that if they would be forced for DNA Test, allegation would be made against the police officials, and in view of their resistance, directions for DNA Test were not issued, on which the prosecution was unable to get the DNA Test of accused respondents No.5 & 6 conducted. Learned Single Judge rejected the prayer of learned counsel appearing for the appellant that without DNA Test, truth of the bigamy will not come out, and which will also help the appellant in proving her case under Section 498A.

5. Learned Single Judge dismissed the application for interim relief for DNA Test on the ground that a direction to hold DNA Test of accused-respondents No.5 & 6 infringing their right of privacy, cannot be given, in the absence of their consent, with liberty that in case they give their consent, DNA Test may be conducted.

6. It is submitted by learned counsel appearing for the appellant that bigamy and adultery are criminal offences, and that, during investigation of the case, the medical examination is permissible under Sections 53, 53A & 54 of the Code of Criminal Procedure by prosecution, and in such case, it will not be considered to be in violation of Article 20(3) of the Constitution of India.

7. We do not find substance in the contention of learned counsel appearing for the appellant.

8. The offence of bigamy i.e. marrying again during lifetime of husband or wife, as a criminal offence under Section 494 IPC, may be proved by producing sufficient proof of marriage of a person, who has husband or wife living, with an exception, that the section does not extend to any person, whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction, nor to any person, who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person, as being alive within that time provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted, of the real state of facts, so far as the same are within his or her knowledge.

9. In order to prove the offence of bigamy, the person alleging that his spouse has, during the subsistence of the marriage, married the other person, must prove the factum of marriage. The birth of a child in the relationship may be one of the circumstances, but that would not be conclusive proof of marriage, which may constitute an offence. The circumstances, in which a man and woman are living, or have lived tog