A DNA test to determine paternity is permissible in maintenance claims under Section 125 of the Cr.P.C. when paternity is disputed, provided a compelling reason exists.

ORAL ORDER

The petitioner is before this Court calling in question an order dated 22.02.2025 passed in Criminal Revision Petition No.10041/2024 affirming the order dated 18.05.2024 passed by the concerned Court in Crl.Misc.No.26/2018.

2. Heard Sri. Rakshith Kumar, learned counsel appearing for the petitioner.

3. The petitioner is the husband and respondent No.1, the wife and respondents No.2 and 3, the children born from the wedlock of the petitioner and respondent No.1. The petitioner and respondent No.1 get married on 15.09.2010. The relationship between the two appears to have floundered after the birth of two children/respondent Nos.2 and 3. The wife invokes Section 125 of the Code of Criminal Procedure , 1973 ('the Cr.P.C.' for short) and files Crl.Misc.No.26/2018. The petitioner then files a Miscellaneous First Appeal challenging an order passed by the Family Court in MC.No.294/2015 where the validity of the marriage between the petitioner and respondent No.1 was pending adjudication. Therefore, the two proceedings that sprang from a floundered relationship are one seeking maintenance under the Cr.P.C. and the other an order passed in MC.No.294/2015. In the proceeding under Section 125 of the Cr.P.C., the respondent files an application seeking DNA test of the petitioner to know the paternity, which comes to be opposed by the petitioner. The concerned Court allows the application and directs conduct of a DNA test. The said order comes to be challenged before the Court of Session in Crl.RP.No.10041/2024, which also comes to be dismissed, thereby permitting the DNA test of the petitioner to be conducted.

4. The learned counsel appearing for the petitioner would vehemently contend that the concerned Court has committed a grave error in law by directing a DNA test failing to appreciate the limited scope of its powers under Section 125 of the Cr.P.C. The power to order a test cannot be exercised as a matter of course. The learned counsel would submit that the concerned Court has erred in overlooking the legal presumption of legitimacy in terms of Section 112 of the Indian Evidence Act , 1872. The marriage between the parties was solemnized on 15.09.2010 and the children were born during the subsistence of a valid marriage. Therefore, the concerned Court ought not to have as a matter of course permitted conduct of a DNA test upon the petitioner contrary to the legal presumption.

5. I have given my anxious consideration to the submissions made by the learned counsel appearing for the petitioner and have perused the available material on record.

6. The afore-narrated dates linked in the chain of events are a matter of record. The relationship between the two is not in dispute. The wife invokes Section 125 of the Cr.P.C. and files Crl.Misc.No.26/2018 seeking maintenance at the hands of the husband. The husband denied the relationship and made several allegations against the wife that the children are not born from the wedlock of the petitioner and respondent No.1. In that circumstance, the wife files an application seeking conduct of DNA test to ascertain the paternity of the minor children. The learned Magistrate in Crl.Misc.No.26/2018, by rendering cogent reasons, permits conduct of the DNA test in a peculiar facts and circumstances of the case, which reads as follows:

"12. There is no conflict in the three decisions of the Hon'ble Supreme Court, namely,Goutam Kundu vs. State of West Bengal [ (1993) 3 SCC 418 ], Sharda vs. Dharmpal [ (2003) 4 SCC 493 ], and Ashok Kumar vs.Raj Gupta and Ors [(2022 SAR (civ) 109)]. In Goutam Kundu's case, it has been laid down that courts in India cannot order blo