IMPORTANT POINT
The presumption of legitimacy under Section 112 of the Indian Evidence Act is conclusive and can only be rebutted by strong evidence of non-access; DNA tests should not be ordered without a prima facie case.

ORDER :

K.K. Ramakrishnan, J.

[PRAYER: Criminal Revision filed under Section 397 r/w 401 of the Criminal Procedure Code, to call for the records pertaining to the order dated 19.06.2023 passed in Crl.M.P.No.5009 of 2022 in M.C.No.3 of 2022 on the file of the learned District Munsif-cum-Judicial Magistrate, Thirupuvanam and set aside the same.]

This Criminal Revision Case has been filed against the order dated 19.06.2023 passed in Crl.M.P.No.5009 of 2022 in M.C.No.3 of 2022 on the file of the learned District Munsif-cum-Judicial Magistrate, Thirupuvanam.

2. The case of the prosecution is that the first respondent married the petitioner on 30.06.2017. After solemnization of marriage, due to menstruation period of the first respondent, according to the petitioner, there was no consummation of marriage. After the mensuration period, according to the petitioner, he had not had sexual intercourse with the first respondent due to injuries sustained by him on his private part. Thereafter, when the first respondent went to take treatment for fever, the doctor informed the fact that she was pregnant. Suspecting the said pregnancy, the petitioner harassed the first respondent following which a complaint was lodged by the first respondent. Finally, they parted company. In the meantime, the child/second respondent was born. So, the first respondent filed M.C.No.3 of 2022 on the file of the learned District Munsif-cum-Judicial Magistrate, Thirupuvanam. The petitioner filed the counter affidavit denying all the allegations, more particularly, the petitioner stated that he sustained injury on his private part on the date of proposed first consummation, i.e., sexual intercourse is denied as false and there was no sexual intercourse at all, and hence, he is not liable to pay maintenance to the first respondent and the child/second respondent.

3. After filing the said counter affidavit, he filed the Crl.M.P.No.5009 of 202 under Section 45 of the Indian Evidence Act to subject the child for DNA test. The same was dismissed by the learned trial Judge holding that the petitioner has not established the circumstances to order the DNA test. Aggrieved over the same, the petitioner filed this revision raising the ground stated in the memorandum of grounds of revision.

4. The learned counsel for the petitioner reiterated the grounds and further elaborated that it is the specific case of the petitioner that he had no sexual intercourse with the first respondent and hence, the alleged birth of the second respondent is suspicious. Hence, the claim of maintenance, on behalf of the second respondent is also not maintainable. Therefore, the learned trial Judge has committed error in dismissing the petition. He placed reliance upon the following judgments :

1. In the case of Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik and another reported in 2014 (2) SCC 576

2. In the case of Dipanwita Roy v. Ronobroto Roy reported in 2014 (6) CTC 791

3. In the case of V.K. Bhuvaneswari v. N. Venugopal reported in 2007 (1) LW 318

4. In the case of Palanisamy v. Vijayakumar and Others reported in 2021 (4) LW 771

5. This Court has considered the submission made on behalf of the petitioner and the precedents relied upon by him.

Pater est quem nuptiae demonstrant” which means, the father is he whom the nuptials point out.

Section 112 of the Indian Evidence Act is based on the above said principle. For better appreciation, Section 112 of the Indian Evidence Act, 1872, is extracted hereunder :

“112. Birth during marriage, conclusive proof of legitimacy.—The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.”

It is the principle of law that “Odiosa et inh