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IN THE HIGH COURT OF ALLAHABAD
RAHUL CHATURVEDI, J.
Dr. Ifraq @ Mohammad Ifraq Husain – Appellant
Versus
State Of Uttar Pradesh And 3 Others – Respondents
Application U/S 482 No. -9294 of 2023, Criminal Revision No. -1090 of 2023
Decided on : 24-05-2024
CRIMINAL LAW - MAINTENANCE AND PATERNITY - Cr.P.C. Sections 125, 126(2), 391; Evidence Act Section 112 - The court discussed the provisions of Section 125 of the Cr.P.C. regarding maintenance, Section 126(2) concerning recall of ex-parte orders, and Section 391 allowing for additional evidence in appeals. It emphasized the conclusive presumption of legitimacy under Section 112 of the Evidence Act, which states that a child born during a valid marriage is presumed legitimate unless proven otherwise. The court concluded that the applicant failed to establish non-access to his wife, thus upholding the maintenance order and rejecting the request for a DNA test.
Fact of the Case:
Dr. Ifraq @ Mohammad Ifraq Husain challenged the maintenance order granted to his wife Smt. Shazia Parveen and their two daughters under Section 125 Cr.P.C. He claimed that he was not the biological father of one daughter based on a clandestine DNA test he conducted without consent. The trial court awarded maintenance, which he appealed against, seeking to quash the orders and request a fresh DNA test.
Finding of the Court:
The court found that the applicant's DNA test was conducted without judicial order and lacked credibility. It emphasized the presumption of legitimacy under Section 112 of the Evidence Act, stating that the applicant did not provide sufficient evidence to prove non-access to his wife during their marriage. Therefore, the court upheld the maintenance order and denied the request for a DNA test.
Issues: Whether the applicant could challenge the maintenance order based on a DNA test conducted without consent, and whether he could establish non-access to his wife to displace the presumption of legitimacy under Section 112 of the Evidence Act.
Ratio Decidendi: The court reiterated that the presumption of legitimacy under Section 112 of the Evidence Act is conclusive unless strong evidence of non-access is provided. The applicant's unilateral actions to obtain a DNA test did not meet the legal standards required to challenge the maintenance order.
Final Decision: The court dismissed the applicant's petitions, upholding the maintenance order and denying the request for a fresh DNA test, emphasizing the need for strong evidence to rebut the presumption of legitimacy.
JUDGMENT :
Hon'ble Rahul Chaturvedi, J.
[1] Heard Sri Manish Tiwari, learned Senior Counsel assisted by Sri Ausim Luthra and Sri Manu Srivastava, learned counsels for the applicant, Sri Hari Om Rai and Sri Hardev Prajapati, learned counsel for the private opposite party, learned A.G.A. for the State of Uttar Pradesh at length and perused the records.
Since, the pleadings have been exchanged between the parties and the matter is ripe for final submissions. Keeping in view that the applicant/revisionist are the one and the same person Dr. Ifraq @ Mohammad Ifraq Husain and the gravamen of both the proceedings are almost akin and similar and therefore, for the sake of brevity and convenience, the Court after clubbing both the proceedings, is proposing to proceed and decide by the common judgment.
[2] In the application under section 482 Cr.P.C filed on 24.02.2023, the applicant is Dr. Ifraq @ Mohammad Ifraq Husain who has made Smt. Shazia Parveen his wife, Km. Aleena and her sister Km. Adeeba through her legal guardian Smt. Shazia Parveen as opposite party nos.2, 3 and 4 respectively with the following prayer :-
[3] On 20.02.2023, yet another Criminal Revision was filed invoking the power under section 397/401 Cr.P.C. by the same Dr. Ifraq @ Mohammad Ifraq Husain making aforesaid persons who are his wife and two daughters as respondent nos. 2 to 4 assailing the legality and validity of the orders dated 07.04.2022 passed by learned Gram Nyayalay, Patiali, Kasganj while deciding the case no.100 of 2019 under section 125 Cr.P.C. so preferred by Smt. Shazia Parveen against her husband Dr. Ifraq @ Mohammad Ifraq Husain claiming maintenance by the impugned order, learned Magistrate has awarded desired amount as maintenance to his wife and daughters and when the same was challenged in Criminal Appeal No.19 of 2022 (Dr. Ifraq @ Mohammad Ifraq Husain Vs. Smt. Shazia Parveen), learned IIIrd, Additional Sessions Judge dismissed the criminal revision preferred by the revisionist Dr. Ifraq @ Mohammad Ifraq Husain vide impugned judgment and order dated 30.01.2023.
The prayer sought is as follows :-
It is further necessary and expedient in the interest of justice that this Hon’ble Court may graciously be pleased to stay the effect and operation of order dated 07.04.2022 passed by learned Gram Nyayalaya, Patiali, Kasganj in case no.100 of 2019 (Smt. Shazia Parveen and others Vs. Dr. Ifraq) under section 125 Cr.P.C. and also the order dated 30.1.2023 passed by III Additional Sessions Judge, Kasganj in Criminal Appeal No.19 of 2022 Police station-Dundwara, District-Kasganj during the pendency of the present Criminal Revision before this Hon’ble Court.”
[4] Before dissecting the facts and grounds of the case, it is essential and imperative to introduce the parties and the background of the case so as to understand the controversy
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 fac....
A DNA test to determine paternity is permissible in maintenance claims under Section 125 of the Cr.P.C. when paternity is disputed, provided a compelling reason exists.
The presumption of legitimacy under Section 112 of the Evidence Act is conclusive unless rebutted by strong evidence of non-access, which the petitioner failed to provide.
(1) DNA test – Paternity of child – Any Matrimonial (Civil) dispute between husband and wife pertaining to child born from wedlock, cannot be used for their own benefit by way of DNA Paternity Test, ....
The court emphasized balancing the child's right to ascertain paternity with the father's right to privacy while ordering DNA testing under Section 112.
DNA Test – It is not always necessary to conduct DNA test to ascertain whether a particular child was born to a particular person – It is burden of person who alleges or disputes paternity that he ha....
Section 112 of Indian Evidence Act, which reads as birth during marriage, conclusive proof of legitimacy.
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