The DNA test results can rebut the presumption of legitimacy under Section 112 of the Indian Evidence Act, influencing the entitlement to maintenance under Section 125 Cr.P.C.

1. This Crl.R.C. has been filed by the husband against the maintenance awarded to the first respondent-wife and her children, namely the second and third respondents, i.e. Rs.600/- to the first respondent and Rs.750/- each to the respondents 2 and 3, by order dated 8.4.2008in M.C.No.45 of 2006 on the file of the Chief Judicial Magistrate's Court, Vellore.

2. The first respondent-wife filed a petition claiming maintenance under Section 125 Cr.P.C., stating that the marriage between her and the revision petitioner-husband, had been performed and out of their lawful wedlock, the children were born. Because of the ill-treatment of her husband, the wife was away from the matrimonial home and since the husband neglected to maintain his wife and children, she has come forward with the petition for maintenance under Section 125 Cr.P.C.

3. The petitioner-husband resisted the maintenance petition by filing counter affidavit admitting the factum of marriage; the paternity of the second respondent is also admitted; he disputed the paternity of the third respondent and submitted that the wife left the matrimonial home and she gave birth to a child, namely the second respondent and she never resumed the matrimonial home and after the convening of Panchayat, she resumed the matrimonial home on 7.9.2005 and then she left on 18.10.2005 and the third respondent was born on 22.4.2006 and so, he disputed the paternity of the third respondent and prayed for dismissal of the maintenance petition.

4. The trial Court, after considering the evidence of P.W.1 and R.W.1 and marking documents Exs.P-1 to P-6 and Ex.B-1, granted maintenance of Rs.600/- to the first respondent-wife and Rs.750/- each to the respondents 2 and 3, against which the husband has preferred the present Crl.R.C.

5. Challenging the impugned order, learned counsel for the petitioner-husband fairly conceded that he is ready to pay maintenance amount to the second respondent and did not dispute the paternity of the second respondent and he disputes the payment of maintenance to his wife (first respondent herein) and disputes the paternity of the third respondent and hence, he prayed for setting aside the maintenance awarded by the trial Court to the first and third respondents. He further submitted that he has let in evidence for non-accessibility of his wife, which has been categorically proved by DNA test, which shows that the revision petitioner was not the father of the third respondent-second child and that has not been considered by the trial Court and it has considered the provisions of Section 112 of the Indian Evidence Act and awarded maintenance to the wife and second child, namely the first and third respondents respectively. He further submitted that the DNA test has been conducted and in the said test, it has been decided that the paternity of the third respondent-child has not proved and the petitioner is not the father of the third respondent-child, which shows that the first respondent-wife led adultery life and he is not also entitled to maintenance and prayed for allowing the Crl.R.C.

6. Learned counsel for the respondents (wife and children) submitted that the marriage is still subsisting and the non-accessibility with the revision petitioner-husband has not been proved by the revision petitioner-husband and since during the subsisting marriage, the first respondent-wife gave birth to a child, herself and the second child (third respondent) are entitled to maintenance and the trial Court considered the decision of the Apex Court and came to the correct conclusion and the same does not warrant any interference and prayed for dismissal of the Crl.R.C.

7. Considering the rival submissions made by learned counsel on either side, it is seen that the revision petitioner/husband has not disputed the payment of maintenance to the second respondent-child and the quantum also is not disputed. The second respondent-child is entitled to maintenance as awarded by the tri