ORDER :

1. The petitioner(Husband) is questioning the orders of the learned Additional Family Court Judge dated 29.11.2022 in Crl.M.P.No.44 of 2020 in M.C.No.243 of 2017 directing the him to undergo DNA test to determine whether he is the father of the minor namely Mohammed Rayyam Ahmed/3rd respondent(Son) herein. The said petition was filed by the 2nd respondent herein(Wife) before the Family Court. For convenience the parties will be referred as “Husband’, ‘Wife’ and “Son’.

2. According to wife of the petitioner, after marriage they were blessed with the child on 02.11.2013. On the ground of continued harassment, an application was filed under Section 125 of Cr.P.C by the wife. In the counter affidavit filed by the husband, he denied the marital relationship and also stated that he is not the biological father of the child. For the said reason, to determine the paternity of the child, the wife filed the petition under Section 45 r/w Section 112 of the Indian Evidence Act praying the Court to direct DNA testing to determine the paternity of the child.

3. Learned counsel appearing for the petitioner would submit that as a matter of routine, the courts cannot direct parties to undergo DNA testing. Further no foundation is laid or facts are narrated by the Court to order such test. In support of his contention, he relied on the judgment of the Hon’ble Supreme Court in the case of Inayath Ali v. State of Telangana, Criminal Appeal No.1569 of 2022, dated 15.09.2022. In the said case, the trial Court while trying a case under Sections 498-A, 323, 354, 506 and 509 of IPC, directed DNA testing to determine the paternity of the two minor daughters. In revision, this court held that the orders of the learned trial Court was proper and upheld the said orders. When the matter was carried to the Hon’ble Supreme Court, the Hon’ble Supreme Court held that when the paternity of the children was not in question in the said proceedings, mechanically directing the petitioner therein to subject himself to DNA testing does not arise.

4. Counsel also relied upon the judgment of Hon’ble Supreme Court in the case of In the case of Ashok Kumar v. Raj Gupta, (2022) 1 Supreme Court Cases 20, Davu Gopal Lunani v. Siva Gopal Lunani, 2014 (2) ALD 131 and also in the case of Bhabani Prasad Jena v. Convenor Secretary, Orissa State Commission for Women and others, AIR 2010 SC 2851.

5. In the present case, the petitioner is denying the marriage itself and also that he is the biological father of the ‘son’. Both the wife and son are claiming maintenance from the petitioner herein. While granting maintenance, the competent court has to look into the relationship of spouse and also the relationship of the children. Section 125 of Cr.P.C enables the orders for maintenance of wife, children and parents. The maintenance can be ordered if the wife is unable to maintain herself or children or parents, subject to proof of the necessity to grant maintenance.

6. The Hon’ble Supreme Court in the case of Priyanka Janardhan Patil v. Janardhan Raghunath Patil, 2022 SCCOnLineSC 1047 has refused to interfere with the order of direction by the lower Court to determine the paternity by DNA testing. The Hon’ble Supreme Court held as follows:

“4. Be that as it may, to resolve the dispute once and for all, this Court refrains from interfering with the direction for paternity/DNA Test. The paternity/DNA test may be conducted at the All India Institute of Medical Sciences, New Delhi, for which the petitioner and the respondent shall give samples as required. It is made absolutely clear that if on testing, it is found that the allegations are based on suspicion and the respondent is, in fact, the father of the child, the respondent shall pay compensation of Rs.30,00,000/- (Rupees thirty lakhs only) to the petitioner, in addition to usual maintenance and other costs and charges as the respondent may be directed to pay for the petitioner and for the child.”

7. In the judgment relied by the le