IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR MCRC No. 15806 of 2024 (SMT. DEEPA MISHRA AND OTHERS Vs ASHUTOSH SHARMA)

Dated : 02-07-2024 Shri Aditya Sharma - Advocate for the petitioner.

Smt. Uma Kushwah - Advocate for R-1.

The present petition under Section 482 of Cr.P.C is preferred against the order dated 23.03.2024 passed by Fourth Additional Sessions Judge, Dabra District Gwalior in CRR No.10/2024, whereby the order dated 02.11.2022 passed by Judicial Magistrate, First Class, Dabra District Gwalior in Maintenance Case No.112/2020, wherein the application under Section 45 of the Indian Evidence Act for conducting the DNA test for the paternity of petitioner no.2 was denied, was reversed and the DNA test was directed to be conducted.

2. Aggrieved by the aforesaid order, a revision was preferred on the ground that the learned Lower Court has misdirected itself in not construing the provisions of Section 112 of the Indian Evidence Act in its right perspective wherein it has been specifically provided that any person born during the continuance of valid marriage between his or her mother and any men or within 280 days after its dissolution, the mother remaining unmarried, it would be a conclusive proof that he or she is the legitimate child of that man, unless it can be shown that the parties to the marriage has no access to each other at any time and in the present case, admittedly, the marriage between the parties had taken place on 22.01.2019 and the Signature Not Verified Signed by: CHANDNI respondent/husband himself had admitted that they are living separately only since 19.07.2019 and petitioner no.2/daughter was born on 20.02.2020, which was well within 280 days of alleged separation, therefore, she was a legitimate child of respondent/husband.

2. Learned counsel for the petitioner has also submitted that the petitioner no.2/daughter was born during the continuance of the valid marriage between petitioner and respondent/husband and even in the application under Section 45 of the Indian Evidence Act, this fact has not been brought by respondent/husband that he had no access to the petitioner/wife during that period.

3. While taking this Court through the application under Section 45 of the Indian Evidence Act filed on behalf of respondent/husband it has been contended that except for the fact that the parties have no physical relations after the marriage no dates or events have been mentioned in the entire application to bring the application within the purview of provisions of Section 112 of the Indian Evidence Act.

4. It has further been contended that Section 112 of the Indian Evidence Act specifically lays down that if the child is born during the continuance of valid marriage or within 280 days after dissolution of marriage the conclusivity of the legitimacy of the child is to be presumed as per the aforesaid provision and since this fact has not been rebutted in any manner by the present respondent/husband, therefore, the revisional order dated 23.03.2024 impugned herein is not sustainable and is liable to be set aside.

Signature Not Verified Signed by: CHANDNI

5. While placing reliance on the order passed by the learned Trial Court it has been argued that the learned Trial Court had in detail discussed about the conclusive proof of the legitimacy of petitioner no.2 keeping in consonance with provisions of Section 112 of the Indian Evidence Act, therefore, there was no occassion for the revisional court to have set aside the order and to direct the DNA test to be conducted with regard to paternity of petitioner no.2. Thus, it was prayed that the present petition deserves to be allowed and the order passed by the revisional court dated 23.03.2024 deserves to be set aside.

6. Per contra, Smt. Uma Kushwah, appearing for the respondent/husband submits that in reply to the application under Section 125 of Cr.P.C the fact of respondent no.1 being on duty at the time when petitioner no.1 became pregnant has been averred and furth