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.

ORDER :

This Criminal Revision has been filed challenging the order dated 14/02/2018 passed in MJCR No.299/2015 by Principal Judge, Family Court, Sihore by which the Family Court has directed the present petitioner to pay a sum, of Rs.4,000/- per month as maintenance to respondent No.1.

2. Learned counsel for the petitioner submits that respondent No.2 approached the Family Court by way of an application under Section 125 of Cr.P.C. in which the present respondents were arrayed as applicant No.1 and 2. It was submitted in the application that after marriage of the petitioner with respondent No.2 on 07/05/2009, respondent No.1 was born out of their wedlock. Thereafter, respondent No.2 at her matrimonial house was subjected to cruelty, therefore, subsequent events ensued in filing of an application under Section 125 of Cr.P.C. which has been allowed in respect of respondent No.1.

3. It is contended by the counsel that the order passed by the Family Court, Sehore suffers from perversity as the Court was required to appreciate as to whether respondent No.1 is biological daughter of the present petitioner or not. It is contended by the counsel that respondent No.2 was suffering from a gynecological disease known as Fibriod and on account of said disease, the respondent No.2 was unable to conceive, therefore, she could not have delivered the child. It is contended by the counsel that in response to the application filed under Section 125 of Cr.P.C., it was specifically averred by the present petitioner that he was not a biological father of respondent No.1. It is contended by the counsel that an application was also moved during pendency of the proceedings and the said application was registered as IA No.2 and was taken up for consideration by the Family Court on 12/05/2017. While dealing with the said application, the Court considering the rival stand of the parties issued direction for conducting DNA test of respondents.

4. It is contended by the counsel that the respondent No.2 did not appear before the Doctor at Apollo Pathology, Kolar Road, Bhopal for the purpose of DNA test and resultantly, no test could be conducted. It is contended by the counsel that as the factum of petitioner being father of respondent No.1 was specifically refuted, therefore, conduct of DNA test was the only option to ascertain the conflicting issue. It is further contended by the counsel that even in the birth certificate, name of the father of respondent No.1 was mentioned as Kishore Sharma whereas name of the present petitioner is Kaushal Sharma. This aspect was also required to be taken into consideration but the Family Court did not appreciate this important aspect and proceeded to pass the impugned order in favour of the respondents. Thus, the impugned order deserves to be set aside.

5. Per contra, learned counsel for the respondents submits that the impugned order does not require any interference. The Court after considering the evidence adduced by the parties, have arrived at the findings which are based on cogent reasons and therefore, no interference is warranted with the order passed by the Family Court. It is further submits that in the present case there is a presumption in terms of Section 112 of the Evidence Act in favour of the respondents, therefore, the petitioner could not have disputed the legitimacy of the child i.e respondent No.1. Thus, the Revision filed by the petitioner deserves to be dismissed.

6. No other point is pressed or argued by the parties.

7. Heard rival submissions of the parties and perused the record.

8. Learned counsel for the petitioner is assailing the order passed by the Family Court on the ground that he is not a biological father of respondent No.1 and the respondent No.1 does not belong to natal family. The contention is based on the pleadings as well as the evidence so adduced by the petitioner. The said argument is also based on the birth certificate in which the name of father of respondent No.1 was mentioned as