DNA testing is essential in paternity disputes to determine maintenance obligations, emphasizing children's welfare and rights.

JUDGMENT :

Prashant Kumar, J.

1. Heard Shri Arvind Kumar, appearing for the applicant, Shri Shashidhar Pandey, learned A.G.A. for the State as well as Sri Rajesh Rai, learned counsel for the opposite party no.2 and perused the records.

2. The instant application under Section 482 of Cr.P.C. has been filed by the applicant praying for quashing of the order dated 03.11.2021 passed by Additional Civil Judge/Family Court, District Mathura, in case no. 901 of 2019 (Smt. Mamata Vs. Sachin) under Section 125 Cr.P.C., Police Station Vrindavan, District Mathura.

3. Learned counsel for the applicant submits that there is matrimonial dispute between the parties. It is alleged that earlier the opposite party no.2 was married to one Sunil Kumar. After the disappearance of Sunil Kumar for many years, the opposite party no.2 re-married the present applicant and out of their wedlock two children were born. Thereafter there was some matrimonial discord and hence the opposite party no.2 had filed application under Section 125 Cr.P.C. for maintenance. In the pending proceedings under Section 125 Cr.P.C., applicant had filed an application stating therein that the children are not of his and hence there was no question of paying any maintenance. On the request of opposite party no.2, to ascertain the parentage sought for a DNA test, the trial Court vide order dated 03.11.2021 ordered for DNA test.

4. By means of the instant application, the applicant has challenged the impugned order dated 03.11.2021, by which, the court had ordered for the DNA Test of the applicant.

5. Sri Arvind Kumar, counsel for the applicant submits that the opposite party no.2 is not his legally wedded wife so there is no question of paying any maintenance under Section 125 Cr.P.C. He further submits that the opposite party no.2 had earlier initiated the proceedings under Section 498A IPC against the applicant no.1 which was dismissed as they are not the legally married. Thereafter the opposite party no.2 had filed a case under Sections 12, 18, 19, 20, 21 and 22 of the Protection of Women from Domestic Violence Act, 2005, which was also rejected on the same ground. He further submits that in various documents the opposite party no.2 has been stating the name of her husband as Sunil Kumar. He further submits that no court can force the applicant to undergo a DNA test, without his consent. To buttress his argument, he placed reliance upon the judgment of the Apex Court in the case of Goutam Kundu Vs. State of West Bengal reported in 1993 SCC (3) 418, in which it has been held that the Court cannot order for blood test. He further placed reliance upon the judgment of Apex Court in the case of Ashok Kumar Vs. Raj Gupta and others reported in 2021 0 Supreme (SC) 534. Hence the order issued to undergo a DNA test is completely contrary to the prevailing law.

6. Sri Rajesh Rai, learned counsel appearing for the opposite party no.2 submits that the marriage of opposite party no.2 and the applicant was solemnized in the month of May, 2007. Out of the wedlock two children were born, in the birth certificates of the children, the name of the applicant has been recorded as father of the children. In fact the entire expenses of the delivery of the children was borne by the applicant. Even in the school the name of the father of the children is recorded as Sachin Agarwal (present applicant). He further submits that thereafter the name of the father of the children was changed in connivance of the applicant and the headmistress of the school, for which, the opposite party no.2 has lodged an FIR against the applicant and others. Against the said FIR,. the applicant had approached this Court for staying his arrest by filing criminal writ petition, which was dismissed. He further submits that the applicant is the biological father of the children of the opposite party no.2, and just to avoid paying any maintenance the applicant has taken a stand that he is not the father of the children of opposite