In maintenance proceedings under Section 125 Cr.P.C., the standard of proof for marriage is not as strict as under Section 494 IPC; a presumption of marriage can be drawn if parties lived together, and refusal to undergo a DNA test may justify an adverse inference regarding paternity.

ORDER

This criminal revision under section 397 read with section 401 of the Cr.P.C., 1973 is preferred being aggrieved by judgment dated 05.09.2022 in Criminal Appeal No.58/2018 by the First Additional Sessions Judge, Rajgarh (Biaora) (MP) arising out of order dated 01.11.2018 in Misc. Criminal Case No.29/2014 by Nyayadhikari, Gram Nyayalaya, Biaora Rajgarh (MP) whereby claim of maintenance of the revision petitioners under section 125 of the Cr.P.C., 1973 has been denied on the ground that revision petitioner no.1 is not legally wedded wife of the respondent and petitioner no.2 is not proved to be the son of the respondent.

2. Facts of the case in brief are that:- revision petitioners filed an application under section 125 of the Cr.P.C., 1973 before the Nyayadhikari, Gram Nyayalaya, Biaora Rajgarh (MP) on 24.07.2014 on the ground that revision petitioner no.1 was married to respondent 14-15 years ago as per the hindu rituals at village Dhanyakhedi and revision petitioner no.2 was born out of the wedlock. revision petitioner no.2 is residing with mother i.e. revision petitioner no.1 in the year 2006 to 2017. revision petitioners were ousted from the matrimonial home and no provision for maintenance was made. revision petitioners are not able to maintain themselves and they requires Rs.5,000/- per month to both the revision petitioner in total Rs.10,000/- as maintenance. Respondent is a government servant and earns Rs.40,000/- per month. He also have income of Rs.5 lac to Rs.6 lac per annum from 15 Bigga of irrigated agricultural land.

3. The application was replied and the factum of marriage was denied. It was stated that the respondent was married to Krishnabai and two children namely Rajnandani and Shubham were born from the said wedlock. Due to disputes with Krishnabai, she moved to her maternal home and did not return to the matrimonial home. The respondent was working as a teacher and had engaged revision petitioner No. 1 for domestic help at a remuneration of Rs.1,000 per month. It was further alleged that revision petitioner No.1 committed theft in his house and left the house along with revision petitioner No.2. Revision petitioners have filed this applications only to blackmail the respondent as he is in government job. Respondent is not liable to maintain the revision petitioners.

4. Gram Nyayalaya, Biaora examined revision petitioner no.1 as PW-1, her maternal uncle as PW-2 and paternal uncle as PW-3 and maternal uncle as PW-4 and her brother as PW-5 and adduced the documents Exhibit P/1 and P/2. Respondent examined as DW-1 and her brother-in-law as DW-2 and Phool Singh as DW-3 and Kailash as PW-4 and adduced the documents Exhibit-D/1 to D/8.

5. Appreciating the evidence Nyayadhikari, Gram Nyayalaya, Biaora Rajgarh (MP) recorded the finding that he has not proved that revision petitioner no.2 is not proved as son of the respondent and dismissed the application. The appeal preferred by the revision petitioners was also dismissed by the 1st Additional Sessions Judge, Biaora Rajgarh affirming the finding recorded by the trial court and also rejected the application of additional evidence.

6. Challenging both the orders this revision petition has been preferred.

7. During the pendency of the revision petition, the revision petitioners preferred I.A. No. 3769/2024 seeking permission to conduct a DNA fingerprinting test to establish the paternity of revision petitioner No.2 with the respondent. The said application was opposed by filing Document No. 2759/2024. Vide order dated 14.03.2024 the application was rejected on the ground that the respondent was not willing to undergo