Tarlok Singh Chauhan, J.

This petition under Section 482 Cr.P.C., is directed against the order dated 23.5.2016 passed by learned Judicial Magistrate 1st Class, Solan, District Solan, H.P. whereby the application filed by the petitioner seeking direction to the respondent to undergo DNA profiling test alongwith his children and to obtain expert opinion in this regard, came to be dismissed.

2. The application filed by the petitioner under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (for short ‘Act’) is pending adjudication before the learned trial Magistrate. In the application, the petitioner had averred that she had been living for the last more than 40 years with the respondent, who had kept her as a wife and out of the said relationship, two children Surinder Parkash and one Sushma were born and now the respondent had stopped maintaining the petitioner and prayed that pending disposal of the application the residence order (fourth storey - first floor known as Surat Bhawan), as required under Section 19 of the Act be passed.

3. In reply to the application, the respondent denied having had any relationship with the petitioner and further denied the children mentioned above are not his.

4. In order to prove her relationship with the respondent, the petitioner filed an application under Section 45 read with Section 113 of the Indian Evidence Act, for directing the respondent to undergo DNA profiling test with the aforesaid children, which was opposed by the respondent.

5. The learned trial Court dismissed the application by initially according the following reasons:

“The present petition is petition under Section 12 of protection of women from Domestic Violence Act and the children are not party to the present petition but applicant has averred that he had denied even paternity of children and therefore, DNA test is required to be conducted. However, the paternity of the children is not in question in the present case. Moreover, it is an accepted fact that maintenance has been provided to the children under Section 125 Cr.P.C. and under Section 125 Cr.P.C. even illegitimate child is also covered. Copy of order dated 29.7.86 Ext. DX1 has been placed on record wherein they were stated to be his illegitimate children of respondent which order is not as such challenged by the respondent in any court of law. The evidence has also come to the effect that respondent was also married and had children from his wife namely Durgi Devi and it has also been stated by her in the court that children of Sharda were also born in her presence and she was married to Basti Ram.” :

Thereafter, by placing reliance upon the judgment of the Hon’ble Supreme Court in D.Velusamy vs. D. Patchaiammal, 2010 (10) SCC 469, it was further observed as under:

“In view of authority cited supra it can be safely stated that for the purpose of relief under domestic violence Act, the relationship should be akin to marriage and detail with regard to the relationship which can be stated to be akin to marriage has been provided and so the points as stated above by Hon’ble Supreme Court of India is required to be proved and therefore, paternity of children is not going to prove same. Hence, in view of discussion made above present application is not maintainable and is dismissed accordingly. Application stands disposed of accordingly. It be registered and papers after due completion be tagged with main case file for record. Be listed for arguments for 17.6.2016.”

I have heard learned counsel for the parties and also gone through the records of the case carefully.

6. The learned Magistrate appears to have gone astray by not taking into consideration the fact that though the legitimacy of the children as observed by it was not in issue, but then this would be one of the main determinative factor, which would go to a long way to establish the relationship between the parties.

7. I am conscious of the fact that use of DNA test is an extremely delic