Judgment reserved on 4.4.2018 Judgment delivered on 30.05.2018
In Chamber
Case :- CRIMINAL REVISION No. - 1497 of 2011 Revisionist :- Yogendra Awasthi Opposite Party :- State Of U.P. And Others Counsel for Revisionist :- Jayant Kumar Counsel for Opposite Party :- Govt. Advocate,Gyan Prakash Mishra,Saurabh Srivastava
Hon'ble Umesh Chandra Tripathi,J.
1. Heard the arguments of Sri Jayant Kumar, learned counsel for the revisionist, Sri Saurabh Srivastava, learned counsel for the opposite party and Sri L.D. Rajbhar, learned A.G.A., for the State.
2. This criminal revision has been preferred against order dated 31.1.2011 passed by Additional Principal Judge, Family Court, Kanpur Nagar in Case No. 124 of 2006 (Raj Kumari Awasthi Vs. Yogendra Kumar Awasthi) under Section 125 Cr.P.C., whereby application of the revisionist for DNA test of revisionist and Km. Akanchha Awasthi was rejected on the ground that illegitimate child may claim maintenance under Section 125 Cr.P.C.
3. Learned counsel for the revisionist contended that Km. Akanchha Awasthi is not daughter of revisionist but she is daughter of Smt. Rajkumari Awasthi and third person Devendra Awasthi. Accordingly she is neither legitimate daughter nor illegitimate daughter of the revisionist and is not entitled to get maintenance from the revisionist under Section 125 Cr.P.C. Relying upon the judgments of Hon'ble Supreme Court in case of Bhabani Prasad Jena Vs. Convenor Secretary Orissa State Commissioner for Women and Another, reported in (2010) 8 SCC 633 and Dipanwita Roy Vs. Ronobroto Roy reported in (2015) 1 SCC 365 contended that whether Km. Akanchha Awasthi was born from cohabitation of revisionist and Smt. Rajkumari Awasthi, the DNA test of revisionist and Km. Akanchha Awasthi is essential. There is no other evidence on the basis of which it can be proved that Km. Akanchha Awasthi is not his daughter.
4. Learned counsel for the opposite party nos. 2 and 3 contended that Km. Akanchha Awasthi was born during the subsistence of valid marriage of revisionist (Yogendra Awasthi) and opposite party no. 2 (Rajkumari Awasthi). Accordingly, it shall be presumed that Km. Akanchha Awasthi is daughter of revisionist (Yogendra Awasthi) and opposite party no. 2 (Rajkumari Awasthi). As per provision of Section 112 of the Indian Evidence Act, she is legitimate daughter of revisionist and Smt. Rajkumari Awasthi. Revisionist has applied for DNA test only to delay the summary proceedings of Section 125 Cr.P.C. Accordingly, there is no any illegality in the impugned order passed by the learned Trial Court.
5. Learned Trial Court has passed the impugned order presuming that Km. Akanchha Awasthi is either legitimate daughter of revisionist (Yogendra Awasthi) or his illegitimate daughter. It is pleaded by the revisionist Yogendra Awasthi that Km. Akanchha Awasthi was born from cohabitation of one Devendra Awasthi and Smt. Rajkumari Awasthi. She was not born from his cohabitation with Smt. Rajkumari Awasthi. If it is proved that Km. Akanchha Awasthi was not born from the cohabitation of Smt. Rajkumari Awasthi and revisionist Yogendra Awasthi, then she will be neither legitimate daughter of Yogendra Awasthi nor his illegitimate daughter.
6. Accordingly, learned Trial Court has rejected the application for DNA test on unsustainable ground. Learned Trial Court has not considered on merit of the case whether DNA test in this particular case is essential or not. DNA test may be permitted, if it is immensely needed after balancing the interest of the parties. Since, this issue has not been considered by learned Trial Court. It is not appropriate for this Court to record any finding or observation in this reference.
7. In view of above, order dated 31.1.2011 passed by Additional Principal Judge, Family Court, Kanpur Nagar is not sustainable. Accordingly, this criminal revision is allowed and the order dated 31.1.2011 passed by Additional Principal Judge, Family Court, Kanpur Nagar in Case No. 124 of 2006 (Raj Kumari Awasthi Vs. Yogendra Kumar Awasthi) under Section 125 Cr.P.C., is set aside. The Principal Judge/Additional Principal Judge, Family Court, Kanpur Nagar is directed to pass order afresh after considering the merit of the particular application within a period of sixty days from the date of production of a certified copy of this order.
Order Date :- 30.05.2018 Jaswant