IMPORTANT POINT
A court may order a DNA test to determine paternity when there is a prima facie case, especially to protect the legitimacy of a child born during marriage.

JUDGMENT :

(Ravindra Maithani, J.)

The challenge in this revision is made to the order dated 30.01.2024, passed in Misc. Criminal Case No. 107 of 2023, by the court of Judge, Family Court, Vikas Nagar, District Dehradun (“the case”). By the impugned order, an application filed by the respondent no.2 has been allowed and the revisionist has been directed to undergo Deoxyribonucleic Acid (“DNA”) examination.

2. Heard learned counsel for the parties and perused the record.

3. Facts necessary to appreciate the controversy, briefly stated, are as follows:-

The respondent nos. 2 and 3 filed an application seeking maintenance from the revisionist. According to the respondent no.2, she was earlier married to one Abid and out of that wedlock, she had given birth to two children. But, Abid had divorced her in the year 2010 and had taken both the children with him. At that stage of life, according to respondent no.2, she started working, where she met Virender Singh, who under the assurance of marriage, physically exploited her and thereafter left her. The respondent no.2 writes that her agony did not end here. Thereafter, the revisionist met her, promised to marry her, established physical relations and when the respondent no.2 got pregnant, on 30.09.2022 the revisionist solemnized marriage with her. On 28.11.2022, the respondent no.2 gave birth to two children, out of which, one survived, but one could not. After making detailed revelation, the respondent no.2 claims that she had no source to maintain herself, whereas the revisionist is a man of means.

4. The revisionist did file objection on the application under Section 125 of the Code of Criminal Procedure, 1973, denying all the allegations. He has also denied that Abid had ever divorced the respondent no.2. According to him, he was not the father of the child. Abid is father of the child of the respondent no.2, who was born on 28.11.2022. According to the revisionist, in the hospital records, in the discharge slip, the name of the father of the child is recorded as Abid.

5. In the case an application for interim maintenance was filed by the respondent no. 2, which was rejected on 21.08.2023. In that order, the court recorded that it appears that Abid was the father of the child born on 28.11.2022 by the respondent no.2. It appears that at this stage, the respondent no.2 filed an application seeking direction of the court that the revisionist may be directed to undergo DNA examination so as to ascertain the paternity of the child. This application was objected to by the revisionist, but by the impugned order, it has been allowed.

6. Learned counsel for the revisionist would submit that although the revisionist and the respondent no.2 were married, but their marriage was not valid, as saptpadi was not done. The respondent no.3 is a Muslim. She did not convert before marriage as per the existing law. In the discharge slip of the hospital, Abid has been shown as the father of the child born on 28.11.2022. The revisionist is not the father of the child. It is also argued that Section 112 of the Indian Evidence Act, 1872 (“the Act”) makes provision for presumption only in the cases of valid marriage, whereas, it is argued that, instant case is not a case of valid marriage. Therefore, it is argued that in the instant case, DNA examination ought not to have been conducted.

7. Section 112 of the Act deals with legitimacy of birth during marriage. It reads as follows:-

“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.”

8. Whether DNA examination may be ordered as and when application is fi