Case Note & Summary
The petitioners, Sangita Gosavi (wife) and her minor son Ajinkya, filed a petition under Article 227 of the Constitution read with Section 482 CrPC challenging the judgment of the Additional Sessions Judge, Ahmednagar dated 02.09.2010, which set aside the order of the Judicial Magistrate First Class (JMFC), Shrigonda directing a DNA test. The petitioners claimed that Sangita married respondent Arjun Gosavi on 09.05.2001 and Ajinkya was born on 20.04.2003. The respondent refused maintenance and denied the marriage and paternity. The JMFC, after recording evidence, passed an order directing a DNA test to determine paternity. The respondent challenged this order in revision, and the Additional Sessions Judge set it aside, holding that the petitioners failed to prove marriage and paternity. The High Court examined the facts and legal provisions. It noted that the marriage was alleged to have taken place on 09.05.2001 and the child was born on 20.04.2003, i.e., during the subsistence of the alleged marriage. Under Section 112 of the Evidence Act, a child born during wedlock is presumed legitimate. The court held that the Magistrate's order for DNA test was proper to ascertain the truth and that the revisional court erred in interfering. The High Court allowed the petition, set aside the revisional order, and restored the Magistrate's order directing a DNA test. The court directed the respondent to submit to the DNA test and the Magistrate to decide the maintenance application afresh after receiving the test results.
Headnote
A) Criminal Procedure Code - Maintenance - Section 125 CrPC - Entitlement to Maintenance - Wife and child claimed maintenance - Husband denied marriage and paternity - Court held that for grant of maintenance, strict proof of marriage is not required; a prima facie case is sufficient - Held that the Magistrate erred in dismissing the petition solely on ground of failure to prove marriage and paternity (Paras 1-10). B) Evidence Act - Paternity - Section 112 Evidence Act - Presumption of Legitimacy - Child born during wedlock is presumed legitimate - Court held that the child born on 20.04.2003 while marriage was subsisting (allegedly on 09.05.2001) is entitled to the presumption under Section 112 - Held that the respondent's denial of paternity does not rebut the presumption without evidence (Paras 5-8). C) Criminal Procedure Code - DNA Test - Section 125 CrPC - Direction for DNA Test - Court held that in maintenance proceedings, if paternity is disputed, the court can direct DNA test to ascertain the truth - Held that the revisional court erred in setting aside the Magistrate's order for DNA test; such test is in the interest of justice and to determine the real controversy (Paras 9-10).
Issue of Consideration
Whether the petitioners are entitled to maintenance under Section 125 CrPC when the respondent denies marriage and paternity, and whether a DNA test can be ordered to determine paternity.
Final Decision
The High Court allowed the petition, set aside the impugned judgment dated 02.09.2010 of the Additional Sessions Judge, Ahmednagar, and restored the order of the JMFC Shrigonda directing the respondent to undergo DNA test. The JMFC was directed to decide the maintenance application afresh after receiving the DNA test report.
Law Points
- Maintenance under Section 125 CrPC
- DNA test in paternity disputes
- presumption of legitimacy under Section 112 Evidence Act
- standard of proof for marriage in maintenance proceedings
