Legitimacy of a child born during marriage is conclusive proof under Section 112 of the Indian Evidence Act unless access is disproven.

1. This revision is directed against the order dated 30.11.2013 passed by Family Court, Korba in MJC No. 100/2010 whereby the application under S.125 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C. - ) filed by respondent herein has been allowed granting Rs.500/- monthly allowance for maintenance.

2. The application was filed by minor Sohan Kumar stating inter alia that marriage of Smt. Ratna was solemnized with Taresh Kumar applicant herein according to prevalent custom and the marital dispute between the parties was settled in MJC No. 179/2008 on 28.1.2009 before the Family Court and the Family Court directed them to live together, accordingly, the respondent's mother Smt. Ratna Bai started living with Taresh Kumar with effect from 16.02.2009; and became pregnant in the month of April, 2009 and thereafter, on the pretext of treatment, Taresh Kumar sent her to her parental house and, since then applicant has neither taken care of respondent nor respondent's mother; she was admitted to Govt. District Hospital, Korba on 8.1.2010 and on the same day, she delivered a male child namely Sohan Kumar, respondent herein, information of which was given by Smt. Ratna Bai over telephone to the applicant, despite that the applicant did not come there to see and did not care to maintain him leading to filing of the application as he is unable to maintain himself and the applicant is working in the BALCO and earning 8,000/- per month.

3. The applicant herein has filed reply and opposed the application and denied the paternity of minor Sohan Kumar.

4. The trial Court, after appreciating the evidence of the parties, came to the conclusion that pursuant to the order dated 28.1.2009 passed by Family Court passed in MJC No. 179/2008, Smt. Ratna started living with applicant - Taresh Kumar as a husband and wife with effect from 16.2.2009 and delivered a male child namely Sohan Kumar on 8.1.2010 in the District Hospital, Korba. The Family Court further recorded a finding relying upon the provisions of S.112 of the Indian Evidence Act, 1872 (henceforth 'Act, 1972') that minor Sohan respondent herein was born during the continuance of a valid marriage between Ratna and present applicant Taresh Kumar and within 280 days from 16.02.2009; and further recorded a finding that as minor Sohan Kumar has no source of income and he is unable to maintain himself, granted Rs.500/- per month as maintenance to him. Against this order of the Family Court, instant revision has been filed challenging the order as unsustainable in law.

5. Shri Vinod Kumar Tekam, learned counsel appearing for the applicant would submit that order passed by the Family Court granting maintenance allowance to the extent of Rs.500/- is bad in law as the application for DNA test filed by the applicant was rejected by the Family Court on 28.7.2011 on unsustainable grounds, and as such the impugned order deserves to be set aside.

6. I have heard learned counsel appearing for the applicant and perused the order impugned with utmost circumspection.

7. The short question that arises for consideration is whether the Family Court is justified in rejecting the application for DNA test holding the respondent to be legitimate son of applicant in view of provisions contained in S.112 of the Indian Evidence Act ?

8. S.112 of the Indian Evidence Act, 1872 states as under: -
''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