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2020 DIGILAW 694 (MP)

Badri Prasad Jharia v. Vatsalya Jharia

2020-06-26

B.K.SHRIVASTAVA

body2020
JUDGMENT B.K. Shrivastava, J. - This Criminal Revision has been preferred by the Petitioner / Husband Badri Prasad Jharia on 26.03.2018 U/s. 397 of Cr.P.C read with S.19 of Family Court against the order dated 26.02.2018 passed by Principal Family Court Mandla passed in MJC No.310/2014. 2. It is an admitted fact that the Petitioner Badri Prasad was married with Sita Jhariya, on 23.06.1999 at Village Bhua Bichhiya, District Mandla. The wife is working as teacher and the husband is working as clerk in the Government I.T.I. Chindwada. Out of their wedlock, daughter named Vatsala Jharia [Respondent] was born on 09.06.2009. 3. The wife Sita Jharia filed an application under Section 125 of Cr.P.C before the Family Court on 27.11.2012 for seeking maintenance for her daughter Vatsala aged about 3 years. Husband appeared in the case on 26.02.2013 and filed reply on 02.07.2013. On 26.02.2018 the Court passed the impugned order and granted the maintenance to Vatsala Jharia @ Rs.5000/- P.M. from the date of her entitlement to get the maintenance. 4. It is submitted by the petitioner that the wife was living in adulterous life, having illicit relationship with a person named Vinod Singore. The wife of the aforesaid Vinod Singore (named Kiran Singore) has also initiated the proceedings under Section 494 of IPC against her husband. The petitioner also filed an application against the wife under Section 13 of Hindu Marriage Act for divorce upon the ground of adultery. In that petition the petitioner filed an application for DNA test, but the wife refused it, therefore, Family Court dismissed the application. The petitioner preferred a Writ Petition No.15345/2016 in which order Annexure A/5 was passed and the direction was also given that after adducing evidence the applicant may prefer fresh application for DNA test. The applicant preferred an application in MJC No.310/2014 (U/s 125 Cr.P.C.) for DNA test, but the Family Court dismissed the aforesaid application. It is submitted that the trial Court should draw the presumption against the wife because of her refusal for DNA test. The trial Court misrepresented the evidence of both the parties. The petitioner having no access to her wife Sita Jhariya for 5 years. The petitioner also relied upon the Dipanwita Roy Vs. Ronobroto Roy, (2015) 1 SCC 365 . It is submitted that the trial Court should draw the presumption against the wife because of her refusal for DNA test. The trial Court misrepresented the evidence of both the parties. The petitioner having no access to her wife Sita Jhariya for 5 years. The petitioner also relied upon the Dipanwita Roy Vs. Ronobroto Roy, (2015) 1 SCC 365 . Upon the aforesaid ground it is requested to set aside the impugned order and dismissed the petition filed under Section 125 of Cr.P.C. 5. After service of the summon, on behalf of the respondent, 7 Advocates have filed their joint Vakalatnama on 04.02.2019, but thereafter on 20.11.2019, 04.12.2019 and 05.12.2019, no one was appeared on behalf of the respondent. Therefore, matter has been heard ex-party against the respondent. 6. The main grievance of the petitioner is that the trial Court failed to draw the presumption under Section 114 of Evidence Act against the wife, while wife was not agreed for the DNA test. Because the wife refused to DNA test, therefore, her refusal should be taken for the purpose of presumption against her. 7. It necessary to understand about the DNA test and its accuracy. It has been said in Nandlal Wasudeo Badwaik Vs. Lata Nandlal Badwaik & Anr., (2014) 3 MPHT 326 = (2014) 2 SCC (Civ) 145 = (2014) 4 SCC (Cri) 65 [S.C.] = (2014) 2 SCC 576 }. that all living beings are composed of cells which are the smallest and basic unit of life. An average human body has trillion of cells of different sizes. DNA (Deoxyribonucleic Acid), which is found in the chromosomes of the cells of living beings, is the blueprint of an individual. Human cells contain 46 chromosomes and those 46 chromosomes contain a total of six billion base pair in 46 duplex threads of DNA. DNA consists of four nitrogenous bases adenine, thymine, cytosine, guanine and phosphoric acid arranged in a regular structure. When two unrelated people possessing the same DNA pattern have been compared, the chances of complete similarity are 1 in 30 billion to 300 billion. Given that the Earth's population is about 5 billion, this test shall have accurate result. It has been recognized by the Court that the result of a genuine DNA test is scientifically accurate. 8. Section 112 of the Indian Evidence Act says: "112. Given that the Earth's population is about 5 billion, this test shall have accurate result. It has been recognized by the Court that the result of a genuine DNA test is scientifically accurate. 8. Section 112 of the Indian Evidence Act says: "112. Birth during marriage, conclusive proof of legitimacy - The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten." 9. Based on the aforesaid provision, the Privy Council in Karapaya Servai v. Mayandi, (1934) AIR PC 49 , was held, that the word 'access' used in Section 112 of the Evidence Act, connoted only the existence of an opportunity for marital intercourse, and in case such an opportunity was shown to have existed during the subsistence of a valid marriage, the provision by a fiction of law, accepted the same as conclusive proof of the fact that the child born during the subsistence of the valid marriage, was a legitimate child. The determination of the Privy Council in Karapaya Servai's case (supra) was approved by Apex Court in Chilukuri Venkateshwarly v. Chilukuri Venkatanarayana, (1954) SCR 424 : ( AIR 1954 SC 176 ) . In Goutam Kundu v. State of West Bengal and another, (1993) 3 SCC 418 : AIR 1993 SC 2295 : 1993 AIR SCW 2325 , supreme Court, held that this section requires the party disputing the paternity to prove non-access in order to dispel the presumption. "Access" and "non-access" mean the existence or non-existence of opportunities for sexual intercourse; it does not mean actual "cohabitation". In Kamti Devi and another v. Poshi Ram, (2001) AIR SC 2226 : 2001 AIR SCW 2100 = (2001) 5 SCC 511 , the Apex Court said :- "10. But Section 112 itself provides an outlet to the party who wants to escape from the rigour of that conclusiveness. The said outlet is, if it can be shown that the parties had no access to each other at the time when the child could have been begotten the presumption could be rebutted. But Section 112 itself provides an outlet to the party who wants to escape from the rigour of that conclusiveness. The said outlet is, if it can be shown that the parties had no access to each other at the time when the child could have been begotten the presumption could be rebutted. In other words, the party who wants to dislodge the conclusiveness has the burden to show a negative, not merely that he did not have the opportunity to approach his wife but that she too did not have the opportunity of approaching him during the relevant time. Normally, the rule of evidence in other instances is that the burden is on the party who asserts the positive, but in this instance the burden is cast on the party who pleads the negative. The raison d'etre is the legislative concern against illegitimatizing a child. It is a sublime public policy that children should not suffer social disability on account of the laches or lapses of parents. 12.....Its corollary is that the burden of the plaintiff-husband should be higher than the standard of preponderance of probabilities. The standard of proof in such cases must at least be of a degree in between the two as to ensure that there was no possibility of the child being conceived through the plaintiff-husband.'' 10. Now we see the importance and applicability of DNA Test in family matters. In Goutam Kundu v. State of West Bengal and another, (1993) 3 SCC 418 : AIR 1993 SC 2295 : 1993 AIR SCW 2325 , supreme court Court, held as under: "26. From the above discussion it emerges- (1) That courts in India cannot order blood test as a matter of course; (2) wherever applications are made for such prayers in order to have roving inquiry, the prayer for blood test cannot be entertained. (3) there must be a strong prima facie case in that the husband must establish non-access in order to dispel the presumption arising under Section 112 of the Evidence Act. (4) the court must carefully examine as to what would be the consequence of ordering the blood test; whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman. (5) no one can be compelled to give sample of blood for analysis." 11. In Kamti Devi and another Vs. (4) the court must carefully examine as to what would be the consequence of ordering the blood test; whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman. (5) no one can be compelled to give sample of blood for analysis." 11. In Kamti Devi and another Vs. Poshi Ram, (2001) AIR SC 2226 = 2001 AIR SCW 2100 = (2001) 5 SCC 511 , following observations made by the Apex Court :- "11. We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancements with Dioxy Nucleric Acid (DNA) as well as Ribonucleic Acid (RNA) tests were not even in contemplation of the legislature. The result of a genuine DNA test is said to be scientifically accurate. But even that is not enough to escape from the conclusiveness of Section 112 of the Act, e.g., if a husband and wife were living together during the time of conception but the DNA test revealed that the child was not born to the husband, the conclusiveness in law would remain unrebuttable. This may look hard from the point of view of the husband who would be compelled to bear the fatherhood of a child of which he may be innocent. But even in such a case the law leans in favour of the innocent child from being bastardized if his mother and her spouse were living together during the time of conception. Hence the question regarding the degree of proof of non-access for rebutting the conclusiveness must be answered in the light of what is meant by access or non-access as delineated above." (Underlined by me) 12. The aforesaid case of Kamti Devi (Supra) has been followed in the case of Banarsi Dass v. Teeku Dutta, (2005) 4 SCC 449 . 13. In Sham Lal alias Kuldeep Vs. Sanjeev Kumar and others, (2009) 12 SCC 454 = AIR 2009 SC 3115 = 2009 AIR SCW 5006 , the Supreme Court held as under: "Once the validity of marriage is proved then there is strong presumption about the legitimacy of children born from that wedlock. The presumption can only be rebutted by a strong, clear, satisfying and conclusive evidence. The presumption cannot be displaced by mere balance of probabilities or any circumstance creating doubt. The presumption can only be rebutted by a strong, clear, satisfying and conclusive evidence. The presumption cannot be displaced by mere balance of probabilities or any circumstance creating doubt. Even the evidence of adultery by wife which though amounts to very strong evidence, it by itself, is not quite sufficient to repel this presumption and will not justify finding of illegitimacy if husband has had access. In the instant case, admittedly the plaintiff and Defendant 4 were born to D during the continuance of her valid marriage with B. Their marriage was in fact never dissolved. There is no evidence on record that B at any point of time did not have access to D." (Underlined by me) 14. In Bhabani Prasad Jena v. Convenor Secretary, Orissa State Commission for Women and another, (2010) 8 SCC 633 = AIR 2010 SC 2851 = 2010 AIR SCW 4603 , Supreme Court held as under: "21. In a matter where paternity of a child is in issue before the court, the use of DNA test is an extremely delicate and sensitive aspect. One view is that when modern science gives the means of ascertaining the paternity of a child, there should not be any hesitation to use those means whenever the occasion requires. The other view is that the court must be reluctant in the use of such scientific advances and tools which result in invasion of right to privacy of an individual and may not only be prejudicial to the rights of the parties but may have devastating effect on the child. Sometimes the result of such scientific test may bastardise an innocent child even though his mother and her spouse were living together during the time of conception. 22. In our view, when there is apparent conflict between the right to privacy of a person not to submit himself forcibly to medical-examination and duty of the court to reach the truth, the court must exercise its discretion only after balancing the interests of the parties and on due consideration whether for a just decision in the matter, DNA test is eminently needed. DNA test in a matter relating to paternity of a child should not be directed by the court as a matter of course or in a routine manner, whenever such a request is made. DNA test in a matter relating to paternity of a child should not be directed by the court as a matter of course or in a routine manner, whenever such a request is made. The court has to consider diverse aspects including presumption under Section 112 of the Evidence Act; pros and cons of such order and the test of "eminent need" whether it is not possible for the court to reach the truth without use of such test. 23. There is no conflict in the two decisions of this Court, namely, Goutam Kundu v. State of West Bengal, (1993) 3 SCC 418 : ( AIR 1993 SC 2295 : 1993 AIR SCW 2325 ) and Sharda v. Dharmpal, (2003) 4 SCC 493 . In Goutam Kundu, it has been laid down that courts in India cannot order blood test as a matter of course and such prayers cannot be granted to have roving inquiry; there must be strong prima facie case and the court must carefully examine as to what would be the consequence of ordering the blood test. In Sharda, while concluding that a matrimonial court has power to order a person to undergo a medical test, it was reiterated that the court should exercise such a power if the applicant has a strong prima facie case and there is sufficient material before the court. Obviously, therefore, any order for DNA test can be given by the court only if a strong prima facie case is made out for such a course. 24. ...........High Court overlooked a very material aspect that the matrimonial dispute between the parties is already pending in the court of competent jurisdiction and all aspects concerning matrimonial dispute raised by the parties in that case shall be adjudicated and determined by that court. Should an issue arise before the matrimonial court concerning the paternity of the child, obviously that court will be competent to pass an appropriate order at the relevant time in accordance with law. In any view of the matter, it is not possible to sustain the order passed by the High Court.'' (Underlined by me) 15. 15(i). In Nandlal Wasudeo Badwaik Vs. In any view of the matter, it is not possible to sustain the order passed by the High Court.'' (Underlined by me) 15. 15(i). In Nandlal Wasudeo Badwaik Vs. Lata Nandlal Badwaik and another, (2014) 2 SCC 576 = AIR 2014 SC 932 = 2014 AIR SCW 506 = 2014 {4} MPHT 326 (SC) = (2014) 2 SCC (Civ) 145 = (2014) 4 SCC (Cri) 65 [S.C.] , Petitioner was the husband of respondent no.1, Lata Nandlal Badwaik and alleged to be the father of girl child Netra alias Neha Nandlal Badwaik, respondent no.2. The marriage between them was solemnized on 30th of June, 1990 at Chandrapur. Wife filed an application for maintenance under Section 125 of the Code of Criminal Procedure, but the same was dismissed by the learned Magistrate by order dated 10th December,1993. Thereafter, the wife resorted to a fresh proceeding under Section 125 of the Code of Criminal Procedure, claiming maintenance for herself and her daughter, inter alia, alleging that she started living with her husband from 20th of June, 1996 and stayed with him for about two years and during that period got pregnant. She was sent for delivery at her parents' place where she gave birth to a girl child (respondent no. 2). Petitioner-husband resisted the claim and alleged that the assertion of the wife that she stayed with him since 20th of June, 1996 is false. He denied that respondent no. 2 is his daughter. According to the husband, After 1991, he had no physical relationship with his wife. The learned Magistrate accepted the plea of the wife and granted maintenance to the wife and daughter. The challenge to the said order in revision has failed. Thereafter, Husband filed a petition under Section 482 of the Code, against those orders. 15(ii). Court by order dated 10th of January,2011, allow the petitioner's prayer for conducting DNA test for ascertaining the paternity of the child. In the light of the aforesaid order, the Regional Forensic Science Laboratory, Nagpur has submitted the result of DNA testing and opined that appellant "Nandlal Vasudev Badwaik is excluded to be the biological father of Netra alias Neha Nandlal Badwaik", respondent no. 2 . Wife, not being satisfied with the aforesaid report, made a request for re-test. In the light of the aforesaid order, the Regional Forensic Science Laboratory, Nagpur has submitted the result of DNA testing and opined that appellant "Nandlal Vasudev Badwaik is excluded to be the biological father of Netra alias Neha Nandlal Badwaik", respondent no. 2 . Wife, not being satisfied with the aforesaid report, made a request for re-test. The said prayer of the wife was accepted and Court by order dated 22nd of July, 2011, said that prayer may be allowed having regard to the serious consequences of the Report which has been filed. Accordingly, Court direct that a further DNA Test be conducted at the Central Forensic Laboratory, Ministry of Home Affairs, Government of India at Hyderabad. The Central Forensic Science Laboratory, Hyderabad submitted its report and on that basis opined that the appellant, "Nandlal Wasudeo Badwaik can be excluded from being the biological father of Miss Neha Nandlal Badwaik". 15(iii). The respondents submits before the Supreme Court that the appellant/ Husband having failed to establish that he had no access to his wife at any time when she could have begotten respondent no.2, the direction for DNA test ought not to have been given and the result of such a test is fit to be ignored. In support of the submission wife placed reliance on a judgment of this Court in Goutam Kundu v. State of W.B., (1993) 3 SCC 418 , Banarsi Dass v. Teeku Dutta, (2005) 4 SCC 449 , and Bhabani Prasad Jena v. Orissa State Commission for Women, (2010) 8 SCC 633 . Appellant / Husband submits that the Court twice ordered for DNA test and, hence, the question as to whether this was a fit case in which DNA profiling should or should not have been ordered is academic. After taking in to consideration the arguments of both parties , the Court said that the respondents, in fact, had not opposed the prayer of DNA test when such a prayer was being considered. It is only after the reports of the DNA test had been received, which was adverse to the respondents, that they are challenging it on the ground that such a test ought not to have been directed. It is only after the reports of the DNA test had been received, which was adverse to the respondents, that they are challenging it on the ground that such a test ought not to have been directed. Therefore court declined to go into the validity of the orders passed by a coordinate Bench and said that it has attained finality and also said that "when the order for DNA test has already been passed, at this stage, we are not concerned with this issue and we have to proceed on an assumption that a valid direction for DNA test was given." As regards the Goutam Kundu (supra), Banarsi Dass (supra) and Bhabani Prasad Jena (supra), the the court said that same have no bearing in the facts and circumstances of the case. In all these cases, the court was considering as to whether facts of those cases justify passing of an order for DNA test. 15(iv). Counsel for Husband submits that in view of the opinions, based on DNA profiling that appellant is not the biological father, he cannot be fastened with the liability to pay maintenance to the girl-child born to the wife. Counsel for wife however, submits that the marriage between the parties has not been dissolved, and the birth of the child having taken place during the subsistence of a valid marriage and the husband having access to the wife, conclusively prove that the girl-child is the legitimate daughter of the appellant. According to him, the DNA test cannot rebut the conclusive presumption envisaged under Section 112 of the Evidence Act. According to him, respondent no. 2, therefore, has to be held to be the appellant's legitimate daughter. In support of the submission, reliance was placed on Kamti Devi v. Poshi Ram, (2001) 5 SCC 311 [ AIR 2001 SC 2226 = 2001 AIR-SCW 2100 ]. 15(v). The Court Consider the question as to whether the DNA test would be sufficient to hold that the appellant is not the biological father of respondent no.2, in the face of what has been provided under Section 112 of the Evidence Act, and said that From a plain reading of the aforesaid, it is evident that a child born during the continuance of a valid marriage shall be a conclusive proof that the child is a legitimate child of the man to whom the lady giving birth is married. The provision makes the legitimacy of the child to be a conclusive proof, if the conditions aforesaid are satisfied. It can be denied only if it is shown that the parties to the marriage have no access to each other at any time when the child could have been begotten. The Court said that in such circumstance, which would give way to the other is a complex question, and further observed :- "15. Here, in the present case, the wife had pleaded that the husband had access to her and, in fact, the child was born in the said wedlock, but the husband had specifically pleaded that after his wife left the matrimonial home, she did not return and thereafter, he had no access to her. The wife has admitted that she had left the matrimonial home but again joined her husband. Unfortunately, none of the courts below have given any finding with regard to this plea of the husband that he had not any access to his wife at the time when the child could have been begotten. 16. As stated earlier, the DNA test is an accurate test and on that basis it is clear that the appellant is not the biological father of the girl child. However, at the same time, the condition precedent for invocation of Section 112 of the Evidence Act has been established and no finding with regard to the plea of the husband that he had no access to his wife at the time when the child could have been begotten has been recorded. Admittedly, the child has been born during the continuance of a valid marriage. Therefore, the provisions of Section 112 of the Evidence Act conclusively prove that Respondent 2 is the daughter of the appellant. At the same time, the DNA test reports, based on scientific analysis, in no uncertain terms suggest that the appellant is not the biological father. In such circumstances, which would give way to the other is a complex question posed before us. 17. We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancement and DNA test were not even in contemplation of the legislature. The result of DNA test is said to be scientifically accurate. In such circumstances, which would give way to the other is a complex question posed before us. 17. We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancement and DNA test were not even in contemplation of the legislature. The result of DNA test is said to be scientifically accurate. Although Section 112 raises a presumption of conclusive proof on satisfaction of the conditions enumerated therein but the same is rebuttable. The presumption may afford legitimate means of arriving at an affirmative legal conclusion. While the truth or fact is known, in our opinion, there is no need or room for any presumption. Where there is evidence to the contrary, the presumption is rebuttable and must yield to proof. The interest of justice is best served by ascertaining the truth and the court should be furnished with the best available science and may not be left to bank upon presumptions, unless science has no answer to the facts in issue. In our opinion, when there is a conflict between a conclusive proof envisaged under law and a proof based on scientific advancement accepted by the world community to be correct, the latter must prevail over the former. 18. We must understand the distinction between a legal fiction and the presumption of a fact. Legal fiction assumes existence of a fact which may not really exist. However, a presumption of a fact depends on satisfaction of certain circumstances. Those circumstances logically would lead to the fact sought to be presumed. Section 112 of the Evidence Act does not create a legal fiction but provides for presumption. 19. The husband's plea that he had no access to the wife when the child was begotten stands proved by the DNA test report and in the face of it, we cannot compel the appellant to bear the fatherhood of a child, when the scientific reports prove to the contrary. We are conscious that an innocent child may not be bastardised as the marriage between her mother and father was subsisting at the time of her birth, but in view of the DNA test reports and what we have observed above, we cannot forestall the consequence. It is denying the truth. "Truth must triumph" is the hallmark of justice." 15(vi). We are conscious that an innocent child may not be bastardised as the marriage between her mother and father was subsisting at the time of her birth, but in view of the DNA test reports and what we have observed above, we cannot forestall the consequence. It is denying the truth. "Truth must triumph" is the hallmark of justice." 15(vi). Court also said that in the case of Kamti Devi v. Poshi Ram, (2001) 5 SCC 311 = AIR 2001 SC 2226 = 2001 AIR-SCW 2100 , on appreciation of evidence the court came to the conclusion that the husband had no opportunity whatsoever to have liaison with the wife. There was no DNA test held in the case. In the said background i.e. non-access of the husband with the wife, Court held that the result of DNA test "is not enough to escape from the conclusiveness of Section 112 of the Act". The judgment has to be understood in the factual scenario of the said case. The said judgment has not held that DNA test is to be ignored. In fact, Court has taken note of the fact that DNA test is scientifically accurate. 16. In Dipanwita Roy v. Ronobroto Roy, (2015) AIR SC 418 = [2015] 1 SCC 365 the court said that i n m atrimonial dispute, DNA test to be avoided as such test puts legitimacy of child at peril. Depending on the facts and circumstances of the case, it would be permissible for a Court to direct the holding of a DNA examination, to determine the veracity of the allegation(s), which constitute one of the grounds, on which the concerned party would either succeed or lose, There can be no dispute, that if the direction to hold such a test can be avoided, it should be so avoided . The reason, is that the legitimacy of a child should not be put to peril. 17. In the aforesaid Dipanwita Roy (Supra) case, marriage was solemnised on 25.01.2003 which was registered on 09.02.2003. Husband filed the petition under Section 13 of the Hindu Marriage Act, 1955 seeking dissolution of the marriage. One of the grounds for seeking divorce was, based on the alleged adulterous life style of the petitioner-wife and her extra marital relationship with Mr. Deven Shah,. Husband filed the petition under Section 13 of the Hindu Marriage Act, 1955 seeking dissolution of the marriage. One of the grounds for seeking divorce was, based on the alleged adulterous life style of the petitioner-wife and her extra marital relationship with Mr. Deven Shah,. In order to substantiate his claim, in respect of the infidelity of the petitioner-wife, and to establish that the son born to her was not his, the respondent-husband moved an application on 24.07.2011 seeking a DNA test of himself (the respondent-husband) and the male child born to the petitioner-wife. In the written statement wife expressly asserted the factum of cohabitation during the subsistence of their marriage, and also denied the accusations leveled by the respondent-husband of her extra marital relationship, as absolutely false, concocted, untrue, frivolous and vexatious. She also asserted, that she had a continuous matrimonial relationship with the respondent-husband, and that, the respondent-husband had factually performed all the matrimonial obligations with her, and had factually cohabited with her. The Family Court by an order dated 27.08.2012 dismissed the prayer made by the husband, for conducting the DNA test. Husband approached the High Court at Calcutta. The High Court allowed the petition filed by the respondent-husband vide an order dated 6.12.2012. 17(i).Before the Supreme Court appellant-wife, in the first instance, invited attention of the Cort to Section 112 of the Indian Evidence Act and also place the reliance upon Goutam Kundu v. State of West Bengal and another, (1993) 3 SCC 418 : AIR 1993 SC 2295 : 1993 AIR SCW 2325 , Kamti Devi and another v. Poshi Ram, (2001) AIR SC 2226 : 2001 AIR SCW 2100 = (2001) 5 SCC 511 , & Sham Lal alias Kuldeep v. Sanjeev Kumar and others, (2009) 12 SCC 454 : AIR 2009 SC 3115 : 2009 AIR SCW 5006 . But Court said that a ll the judgments relied upon by the learned counsel for the appellant were on the pointed subject of the legitimacy of the child born during the subsistence of a valid marriage. The court observed that question which arises for consideration in the appeal, pertains to the alleged infidelity of the appellant-wife. It is not the husband's desire to prove the legitimacy or illegitimacy of the child born to the appellant . The court observed that question which arises for consideration in the appeal, pertains to the alleged infidelity of the appellant-wife. It is not the husband's desire to prove the legitimacy or illegitimacy of the child born to the appellant . The purpose of the respondent is, to establish the ingredients of Section 13(1)(ii) of the Hindu Marriage Act, 1955, namely, that after the solemnisation of the marriage of the appellant with the respondent, the appellant had voluntarily engaged in sexual intercourse, with a person other than the respondent. There can be no doubt, that the prayer made by the respondent for conducting a DNA test of the appellant's son as also of himself, was aimed at the alleged adulterous behavior of the appellant. In the determination of the issue in hand, undoubtedly, the issue of legitimacy will also be incidentally involved. Therefore, insofar as the present controversy is concerned, Section 112 of the Indian Evidence Act would not strictly come into play. 17(ii). Court also referred para 21 to 24 of Bhabani Prasad Jena v. Convenor Secretary, Orissa State Commission for Women and another, (2010) 8 SCC 633 : AIR 2010 SC 2851 : 2010 AIR SCW 4603 and said that it is apparent, that despite the consequences of a DNA test, this Court has concluded, that it was permissible for a Court to permit the holding of a DNA test, if it was eminently needed, after balancing the interests of the parties. The court again refereed para 15 to 19 of Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik and another, (2014) 2 SCC 576 : AIR 2014 SC 932 : 2014 AIR SCW 506 : 2014 {4} MPHT 326 (SC) and said that the Court has clearly opined, that proof based on a DNA test would be sufficient to dislodge, a presumption under Section 112 of the Indian Evidence Act. Court said in Para 10 :- "10. It is borne from the decisions rendered by this Court in Bhabani Prasad Jena (supra), and Nandlal Wasudeo Badwaik (supra), that depending on the facts and circumstances of the case, it would be permissible for a Court to direct the holding of a DNA examination, to determine the veracity of the allegation(s), which constitute one of the grounds, on which the concerned party would either succeed or lose. There can be no dispute, that if the direction to hold such a test can be avoided, it should be so avoided. The reason, as already recorded in various judgments by this Court, is that the legitimacy of a child should not be put to peril." The Apex Court disposed of the petition by saying in Para 11 and 12:- "11. The question that has to be answered in this case, is in respect of the alleged infidelity of the appellant-wife. The respondent-husband has made clear and categorical assertions in the petition filed by him under Section 13 of the Hindu Marriage Act, alleging infidelity. He has gone to the extent of naming the person, who was the father of the male child born to the appellant-wife. It is in the process of substantiating his allegation of infidelity, that the respondent-husband had made an application before the Family Court for conducting a DNA test, which would establish whether or not, he had fathered the male child born to the appellant-wife. The respondent feels that it is only possible for him to substantiate the allegations levelled by him (of the appellant-wife's infidelity) through a DNA test. We agree with him. In our view, but for the DNA test, it would be impossible for the respondent-husband to establish and confirm the assertions made in the pleadings. We are therefore satisfied, that the direction issued by the High Court, as has been extracted hereinabove, was to told DNA test in circumstances is fully justified. DNA testing is the most legitimate and scientifically perfect means, which the husband could use, to establish his assertion of infidelity. This should simultaneously be taken as the most authentic, rightful and correct means also with the wife, for her to rebut the assertions made by the respondent-husband, and to establish that she had not been unfaithful, adulterous or disloyal. If the appellant-wife is right, she shall be proved to be so. 12. We would, however, while upholding the order passed by the High Court, consider it just and appropriate to record a caveat, giving the appellant-wife liberty to comply with or disregard the order passed by the High Court, requiring the holding of the DNA test. In case, she accepts the direction issued by the High Court, the DNA test will determine conclusively the veracity of accusation levelled by the respondent-husband, against her. In case, she accepts the direction issued by the High Court, the DNA test will determine conclusively the veracity of accusation levelled by the respondent-husband, against her. In case, she declines to comply with the direction issued by the High Court, the allegation would be determined by the concerned Court, by drawing a presumption of the nature contemplated in Section 114 of the Indian Evidence Act, especially, in terms of illustration (h) thereof. Section 114 as also illustration (h), referred to above, are being extracted hereunder: "114. Court may presume existence of certain facts - The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustration (h) - That if a man refuses to answer a question which he is not compelled to answer by law, the answer, if given, would be unfavourable to him." This course has been adopted to preserve the right of individual privacy to the extent possible. Of course, without sacrificing the cause of justice. By adopting the above course, the issue of infidelity alone would be determined, without expressly disturbing the presumption contemplated under Section 112 of the Indian Evidence Act. Even though, as already stated above, undoubtedly the issue of legitimacy would also be incidentally involved." 18. Various dates are important in this case. The application under Section 125 of Cr.P.C. was filed by the non-applicant / wife on 27.11.2012, which was registered as MJC No.310/2014. Petitioner / husband was appeared in the aforesaid case on 26.02.2013. He filed the reply of the application for interim maintenance on 10.04.2013 and reply to the original application on 02.07.2013. Thereafter final order was passed on 26.02.2018. During the pendency of aforesaid application, Case No.33/2015 was filed by the husband on 17.03.2015 under Section 13 of Hindu Marriage Act. 19. The petitioner mainly relied on the proceedings of aforesaid case under Hindu Marriage Act. In that case No.33/2015, an application under Order XXVI Rule 10(A) read with Section 151 of CPC for conducting DNA test was filed on 13.04.2016. The wife filed the reply of the aforesaid application on 28.07.2016. The Court heard arguments on 24.08.2016 and passed the order and dismissed the aforesaid application. In that case No.33/2015, an application under Order XXVI Rule 10(A) read with Section 151 of CPC for conducting DNA test was filed on 13.04.2016. The wife filed the reply of the aforesaid application on 28.07.2016. The Court heard arguments on 24.08.2016 and passed the order and dismissed the aforesaid application. It is also mentioned in the aforesaid order that refusal of the wife will be taken into consideration at the time of passing of the judgment. The aforesaid order dated 24.08.2016 shows that wife submitted before the Court that she is not agreed for DNA test. In the margin of the order sheet she written in her handwriting that "Main DNA nahi Karana Chahati Aanavedika". The husband preferred Writ Petition No.15345/2016 before the High Court against the aforesaid order. A Single Bench of the High Court dismissed the aforesaid petition on 21.04.2017. It may be useful to quote para 17, 18 and 19 of the aforesaid order which are as under:- "17. In the light of para 18 of the judgment passed by the Apex Court in Dipanwita Roy Vs. Ronobroto Roy, (supra) the impugned order cannot be held to be illegal. It has been held by the Apex Court that a person cannot be compelled for the DNA test, though, the DNA test is most legitimate and scientifically perfect means which the husband can use to establish and ascertain the paternity and infidelity, but at the same time the Court has evolved the principle of balance by directing for preservation and the right of individual privacy to the extent possible and, therefore, the Court itself has held that in case, the wife declines for the DNA test, the Court can draw presumption as contemplated in Section 114 of the Evidence Act, without disturbing the presumption envisaged in Section 112 of the Evidence Act. 18. However, as discussed above in the light of facts and the law in respect of directions for DNA test and also taking into consideration the submission of respondent that the petitioner can file an application for DNA test after recording of evidence, the petitioner will have an opportunity to make a request for DNA test after recording of evidence or, to request the Court to draw adverse inference against the respondent for refusing the DNA test in terms of Section 114 of the Indian Evidence Act. 19. 19. Thus, in view of the aforesaid enunciation of law discussed in preceding paragraphs, I do not find any illegality and perversity of approach in the impugned order warranting interference of this Court in exercise of jurisdiction under Article 227 of the Constitution of India and the arguments advanced by the counsel for the petitioner cannot be countenanced at this stage." 20. The petition for divorce is still pending before the Family Court. During the pendency of the MJC No.310/2014, filed by the wife under Section 125 of Cr.P.C., an application under Order XXVI Rule 10(A) read with Section 151 of CPC was filed by the husband on 07.12.2016. The wife filed the reply on 16.12.2016 thereafter Family Court decided the aforesaid application on 04.01.2017. It is mentioned in the aforesaid order that the revision against the order of Family Court refused for DNA test is pending before the High Court and in this case DNA test is not only way to decide the paternity. Relationship of mother and father may be proved by oral evidence also and it may be proved that when the wife became pregnant at that time the husband was in the position to make the relationship with his wife. 21. The aforesaid order was not challenged by the petitioner. Thereafter, trial Court recorded statement of both the parties. Petitioner / wife Sita Jharia, examined herself as [PW-1], Savitri Jharia [PW-2] and Pramodani Soni [PW-3]. Respondent also examined himself as DW-1 and witness Kiran Singore [DW-2]. When the case was listed for final arguments on 16.01.2018, the application under Order XXVI Rule 10(A) of CPC was filed by the husband. The wife filed reply on the same day. The Family Court dismissed the aforesaid application on 18.01.2018. The Court said that as per provision of Section 125(1)(B) of Cr.P.C the legitimate and illegitimate child both are entitled to get the maintenance, therefore, DNA test is not necessary. 22. It appears from the aforesaid discussion that the wife filed the application under Section 125 of Cr.P.C for granting the maintenance for her daughter aged about 3 years. During the pendency of the application the husband filed the petition for divorce under Section 13 of the Hindu Marriage Act. There is no any refusal by the wife for DNA test, in the case of MJC under Section 125 of Cr.P.C. The proceedings of 125 are quasi-judicial proceedings. During the pendency of the application the husband filed the petition for divorce under Section 13 of the Hindu Marriage Act. There is no any refusal by the wife for DNA test, in the case of MJC under Section 125 of Cr.P.C. The proceedings of 125 are quasi-judicial proceedings. In this case first application was dismissed by the trial Court on 04.01.2017, but the petitioner did not challenge the aforesaid order before any superior Court. The wife refused the DNA test in the another case filed under Section 13 of Hindu Marriage Act, therefore, her refusal in that case cannot be taken into consideration in this case. In the present case the reply dated 16.01.2018 filed by the wife shows that in her reply she did not refuse to face the DNA test. She opposed the application upon the ground that the application has been filed upon the baseless grounds and the applicant was having the intention to linger on the case. Sufficient opportunity for adducing the evidence has been granted. Daughter is a minor girl, therefore, adverse effect may be caused upon her mind. 23. The position of law is different in the case of Section 13 of Hindu Marriage Act and the application filed under Section 125 of Cr.P.C. "Adultery" is a ground for "Divorce" under Section of 13 of Hindu Marriage Act. For proving adultery, the DNA test will definitely be useful as per the established law discussed above. If the wife is refusing for DNA test, then her refusal may be considered as a ground for drawing adverse inference against her. But the position under Section 125 of Cr.P.C is different. Section 125 (1)(b) of Cr.P.C. provides that the person is also liable to grant the maintenance to his illegitimate minor child. The section says - "125 - Order for maintenance of wives, children and parents- (1) If any person having sufficient means neglects or refuses to maintain- (a) ....... (b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or.." 24. In the case filed under Section 125 of Cr.P.C the DNA test is not mandatory in each and every case. (b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or.." 24. In the case filed under Section 125 of Cr.P.C the DNA test is not mandatory in each and every case. For proving paternity under Section 125 of Cr.P.C, it is sufficient to proved that the child is the legitimate child of the husband if :- (i) Relationship of husband and wife is in existence, (ii) During their relationship the child was born. (iii) If the marriage between the parties has not been dissolved. (iv) The birth of the child having taken place during the subsistence of valid marriage and the husband having access to his wife. In this case the application was dismissed by the Court and the order was not challenged by the husband. Wife did not refuse in this case and her refusal in Hindu Marriage Act case cannot be considered in this case for drawing presumption against her. 25. Pleadings and evidence are also relevant in this case. In the reply dated 07.09.2017, the husband / petitioner mentioned in para-1 that he is not in contract with Sita Jhariya since 26.04.2006. The scope of interference in the case of revision is limited. If the findings of the trial Court is based upon the proper appreciation of evidence, then this Court cannot interfere upon the ground that another view may be possible. The interference can only be done in the case of improper Marshalling of the evidence and ignorance of the important evidence. In this case, it appears that the trial Court discussed the entire evidence and no any infirmity is found in the appreciation of the evidence. 26. The trial Court mentioned in para-15 that the application under Section 125 of Cr.P.C was filed on 27.11.2012. The husband appeared in the case on 26.02.2013, who filed the reply of interim application on 10.04.2013 and the main application on 02.07.2013, therefore, the husband was having the knowledge of the fact that the application has been filed by showing him as the father of Vatsala Jharia, but the husband did not made any complaint or not initiated any proceedings against the aforesaid status alleged by her wife. The observation is supported by the record of the case, which shows that the husband was appearing before the trial Court on 26.02.2013 while he filed application (Annexure A/2) under Section 13 of Hindu Marriage Act on 17.03.2015. 27. The trial Court also mentioned in para-16 that the respondent/ husband did not specifically deny the fact that Vatsala Jharia is his daughter. The trial Court also observed that previously the husband mentioned the date 26.04.2007, but thereafter he filed an application for amendment and corrected the date as 26.04.2006 in place of 26.04.2007. The trial Court observed that non-applicant husband filed his reply on 02.07.2013 in which he mentioned that he is living separately since 5 years back, therefore, if counting of 5 years is started from 02.07.2013 then it is clear that the husband is showing that he is separated from his wife since July 2008, while the daughter Vatsala Jharia was born on 09.06.2009. Therefore, prima facie, it appears from the aforesaid pleadings and evidence that when the child could have been begotten at that time the husband was having access to her. Trial Court further mentioned the evidence of husband in which he admitted that he did not take any step for correcting the aforesaid mistake in his reply. 28. The wife Sita Jharia (PW-1) stated in her evidence that the daughter Vatsala Jharia was born during the wedlock of their marriage and the petitioner Badri Prasad is the father of the aforesaid girl. The statement of wife is also supported by the evidence of PW-2 and PW-3. The trial Court also discussed the aforesaid fact in para-12 of the judgment. 29. For showing the adultery of wife the petitioner / husband examined the witness Smt Kiran Singore who is wife of Vinod Singore. If we see the reply of the husband then it appears that in para-2, husband mentioned that Kiran Singore made a complaint against his husband then he came to know the fact. There is no any specific allegation in the written statement of husband that the wife having any illicit relationship with Vinod Singore. Husband only said that the wife of Vinod Singore made a complaint against Sita Jharia (wife of the petitioner). The aforesaid pleading is not sufficient. There is no any specific allegation in the written statement of husband that the wife having any illicit relationship with Vinod Singore. Husband only said that the wife of Vinod Singore made a complaint against Sita Jharia (wife of the petitioner). The aforesaid pleading is not sufficient. The petitioner said in para-3 of his statement that Kiran Singore filed a petition under Section 13 of Hindu Marriage Act (Ex.D/1) against her husband Vinod Singore. Ex.D/2 is the affidavit, Ex.D/3 is the written statement and Ex.D/4 is the affidavit supported to the written statement. But it appears that the aforesaid document has not been proved by Smt Kiran Singore (DW-2) herself. Documents were related to Kiran Singore, therefore, they should be proved by Kiran Singore herself. Kiran Singore said in Para-3 of her statement that her husband was having illicit relationship with Sita Jharia and he arranged a rented house for Sita Jharia. She said that she also made complaint to Rajya Mahila Ayog and Superintendent of Police, Mandla and Mandla Police recorded her statement. 30. In the light of the statement of Kiran Singore, if we examine the documents, then it appears that Vinod Singore filed a petition under Section 13 of Hindu Marriage Act (Ex. D/1) against his wife Kiran Singore. Kiran Singore filed reply / written statement (Ex.D/3) in which in para-10 it is mentioned that Vinod Singore is having illicit relationship with the woman named Sita Jharia. No evidence has been produced to prove the aforesaid fact. Only upon the basis of suspicion, the aforesaid allegation has been made. The petitioner also did not produce any sufficient evidence for showing the illicit relationship of the wife with another person. During arguments the learned Advocate for husband also said that there are various photographs showing the illicit relationship, but it appears from the record that no any photo graphs have been produced by the husband and no any positive evidence has been led by the husband showing the fact that he was not in the position to met her wife at the time when she became pregnant. Therefore, the presumption under Section 112 of Evidence Act rightly applied by the trial Court against the husband. 31. Therefore, the presumption under Section 112 of Evidence Act rightly applied by the trial Court against the husband. 31. As far as the amount is concerned, the petitioner draws attention towards para-26 of the judgment and submit that Ex.D/12 is the pay slip of the wife, while the Court treated it as pay slip of husband / petitioner. It is true that the aforesaid document is related to Sita Jharia showing her pay for the month of January, 2017 as Rs.34,707/-. But it is also appeared that the husband is also working as Assistant Grade-II in ITI. In the case of 125 of Cr.P.C the burden lies upon the husband to prove his income and liability, but the husband did not proved any document for showing his monthly pay and deduction etc. In para-6, husband said that he produced Ex.D/12, which is the pay slip of Sita Jharia. In para-7 he said that he is working as Assistant Grade-II in the Government ITI and he gets Rs.26,127/- P.M. He did not produce any pay slip, therefore, it cannot be ascertained that what is the total income of the husband and which deductions have been made from the pay. But looking to the amount of Rs.26,127/- it can be said that Rs.5,000/- is not a higher amount for the maintenance of the daughter. Husband and wife both are earning member, therefore, both are responsible for maintenance of their daughter. Trial Court also considered this aspect and granted maintenance of Rs.5,000/- P.M. In view of this Court that amount is not higher, therefore, no any interference is required. 32. Therefore, it appears that in this case no any adverse inference against wife can be drawn because in this case wife did not refuse for DNA Test. In addition, DNA is not mandatory in proceeding of 125 of Cr.P.C., because, legitimate and illegitimate both type of children are entitled to get the maintenance under section 125 of Cr.P.C. Husband was unable to prove the fact that he is not having asses the wife at the time when she become pregnant. Looking to the present status of the economy, amount granted by the trial Court is also not higher. 33. Therefore, this revision having no force, hence dismissed.