Presumption of legitimacy under Section 112 of the Evidence Act; Burden of proof on the party disputing paternity.

JUDGMENT : 

CHAWAN PRAKASH, J.

1. Heard Sri Virendra Singh, learned counsel for the revisionist, learned A.G.A. for the State and Sri Shailesh Kumar Tripathi, learned counsel for the opposite party no. 2 and perused the record.

2. The present revision has been filed against the order dated 07.10.2021 passed by the Additional Sessions Judge, Court No. 1, Varanasi in Criminal Appeal No. 19 of 2021 (Ramraj Patel Vs. State of U.P. and another), under Section 29 of Protection of Women from Domestic Violence Act filed against the order dated 18.01.2021 passed by the Special Chief Judicial Magistrate, Varanasi in Criminal Case No. 120 of 2015 (Savita Patel Vs. Ramraj Patel), under Section 23 of Protection of Women from Domestic Violence Act, rejecting the application filed by the revisionist for D.N.A. Test of Priyambada, daughter of opposite party no. 2.

3. The facts of the case are that the opposite party no. 2 filed an application under Section 12 of Protection of Women from Domestic Violence Act in the court of Special Chief Judicial Magistrate, Varanasi, which was registered as Criminal Case No. 120 of 2015 (Savita Patel Vs. Ramraj Patel). Notices were sent to opposite parties to appear before the concerned trial court and file reply to the application seeking D.N.A. test about paternity. The said application was dismissed by the Special Chief Judicial Magistrate, Varanasi vide order dated 18.01.2021. Against the said order, the revisionist filed an appeal before the learned Additional Sessions Judge, Court No. 1, Varanasi, which was also dismissed vide order dated 07.10.2021. Hence this revision.

4. It is submitted by learned counsel for the revisionist that the revisionist was married with opposite party no. 2 on 15.04.2008 according to Hindu Rites and after marriage, she came at her matrimonial house and she lived only for one week. Thereafter she went back to her parents' house and use to live at parents' house continuously. She used to visit the house of the revisionist's house for few days even less than a week after about six months. She is educated B.A., B.P.Ed. and is doing the job as teacher in Inter College. Since the revisionist is only High School, due to this reason, she does not want to live with him on the ground that he is illiterate villager and she is educated. It is further submitted that the opposite party no. 2 filed a Case No. 120 of 2015 (Smt. Savita Devi Vs. Ramraj Patel and six others), under Section 12 of the Protection of Women from Domestic Violence Act in the court of Special Chief Judicial Magistrate, Varanasi. It is next submitted that the opposite party no. 2 used to say that the revisionist is having illicit relation with his sister-in-law (Bhabhi). It is next submitted that the opposite party no. 2 gave birth to a female child on 17.12.2012. It is next submitted that at last, the opposite party no. 2 visited at the house of the revisionist on 20.05.2011, since then she is residing at her parental house. It is next submitted that the revisionist moved an application on 03.02.2020 for D.N.A. test of Priyambada, daughter of the opposite party no. 2, but the same was dismissed by the Special Chief Judicial Magistrate, Varanasi vide order dated 18.01.2021. Against the said order, the revisionist filed an appeal before the learned Additional Sessions Judge, Court No. 1, Varanasi, which was also dismissed vide order dated 07.10.2021. It is next submitted that the impugned orders passed by both the courts are illegal, arbitrary and liable to be set aside.

5. Per contra, learned cou