Point of Law : If a person is denying to undergo with D.N.A. testing, an adverse inference would be drawn against him and the case would be proceeded on that basis and such adverse inference would be considered at the time of final disposal of the case.

JUDGMENT :

(Umesh Chandra Sharma, J.)

1. This application has been filed by the applicants to quash the order dated 20.07.2022 passed by Principal Judge Family Court, Kanpur Nagar, in Case No. 555 of 2015 under Section 125(6) Cr.P.C. and direct the opposite party no. 2 to pay the interim maintenance to the tune of Rs. 30,000/-per month (Rs. 20,000/-to the applicant no.1-wife and Rs. 10,000/-to applicant no.2-daughter) and also direct the Trial Court to take all necessary steps immediately to enforce the orders dated 27.3.2018 and 24.9.2019 for conducting the D.N.A. test of opposite party no.2 for ascertaining his biological paternity of the applicant no. 2.

2. In brief, facts of the case are that the opposite party no.2 by creating a deception that he was widower whose wife expired 8 years ago had solemnized a second marriage with applicant no. 1 through Arya Samaj rituals on 19.2.2006 and from their cohabitation applicant no.2 was born on 14.1.2007. Later on, when it revealed that wife of opposite party no.2 namely Smt. Mamta Sharma was alive, he stated that he will convince his wife and children born from first wife then he will introduce the applicant in his home. Resultantly, an F.I.R. dated 15.9.2007 under Section 494 I.P.C. has been lodged by the applicant against her husband in which charges have been framed. But due to scarcity of basic resources causing difficulty in survival and living with comfort with her new daughter and due to complete dependence on her brothers, the applicant wife had moved application under Section 125 Cr.P.C. On 22.7.2015 for seeking maintenance but due to dilatory tactics of the husband in deciding the aforesaid application and refusal from giving not even a penny, the wife was constrained to move an application under Section 125(3) Cr.P.C. for getting interim maintenance for salvage and survival of her daughter and herself.

3. The opposite party no.2 in reply to the aforesaid applications, had flagrantly claimed that he was neither a biological father nor has adopted the applicant no.2 and there was no marriage ever solemnized with the applicant no. 1. Hence, he is not bound to maintain an stranger. Surprisingly, simultaneously he is also baldly emphasizing that he is a pauper person with no source of income. Opposite party no. 2 is mentioned as father of applicant no. 2 in her every document from birth certificate to school admission form and I-card. There are genuine photographs from which it is tangible that opposite party no.2 is a husband of the applicant no.1 and father of applicant no.2. Due to flagrant denial by opposite party no.2 as husband of applicant no.1 and biological father of applicant no.2, the applicant no. 1 moved an application dated 27.3.2018 for conducting D.N.A. test profiling and identification test to establish the paternity of her daughter as opposite party no. 2 is the biological father of her daughter, applicant no.2. Initially the opposite party no.2 had given consent to give her blood sample for D.N.A. identification. On 5.8.2019 the opposite party no.2 was directed to deposit the requisite amount fee for D.N.A. testing but he filed recall application which was rejected by the Trial Court on 24.2.2019.

4. Against the order dated 24.2.2019, a highly belated application U/S 482 Cr.P.C. No. 5983 of 2020 was filed by opposite party no.2 wherein till date no final order has been passed. Thereafter, from the conduct of husband, the Trial Court came to conclusion that he was not interested for D.N.A. test and on 2.11.2019 recorded in the order-sheet that husband is procrastinating the proceedings and actually he is not ready for D.N.A. test, he was lingering on the proceedings. Hence, the Trial Court proceeded and observed that it will take legal presumption u/s 114 of The Evidence Act against opposite party no. 2. Surprisingly, the Trial Court without adjudicating the aspect that opposite party no. 2 is biological father of applicant no. 2 under legal presumption und