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Allahabad High Court · body

2022 DIGILAW 139 (ALL)

Feroz Khan v. State of U. P.

2022-02-03

SADHNA RANI (THAKUR)

body2022
JUDGMENT : 1. Heard learned counsel for the applicants and learned A.G.A. for the State and perused the record. 2. The present application under Section 482 Cr.P.C. has been filed for quashing the order dated 28.09.2021 and order dated 04.01.2019 whereby application of the applicant for conducting D.N.A. test of the applicant, opposite party no.2 and alleged son Muzaffar was rejected by the lower courts respectively. 3. It is admitted fact that during pendency of suit under Section 12 Domestic Violence Act, 2005 the applicant moved an application for D.N.A. test of the alleged son mentioning that alleged child is not born out of wedlock of the applicant and opposite party no.2 rather the child is the adopted child and that too without consent of the applicant so he has no liability for providing maintenance to the alleged child. Hence, to prove his contention that child is not born out of this wedlock, prayer for D.N.A. test was made by filing application and the application was rejected by Judicial Magistrate, Bisauli Badaun vide order dated 04.01.2019 on the ground that parties have not reached at the stage of evidence in the case and D.N.A. test could be taken as the last resort. Considering pre evidence stage to be the preliminary stage in the light of Section 112 of the Evidence Act application of the applicant was rejected and rejection order for conducting the D.N.A. test was confirmed by the appellate court vide order dated 28.09.2021 and by moving the present application under Section 482 Cr.P.C. both the orders are prayed to be set aside. 4. It is admitted fact that the applicant Feroz Khan and opposite party no.2 were husband and wife who got married 15 years ago before the date of filing the application under Section 12 Domestic Violence Act, 2005 and opposite party no.2 has claimed that from this wedlock alleged son Muzaffar was born on 27.04.2010. The birth of this child has been challenged by the present applicant. According to him, child is the adopted child that too without his consent. Admittedly, parties lived together upto 2013 and it is also alleged that opposite party no.2 solemnized her second marriage with one Mohd. Feroz Khan on 23.02.2016. Thus it is claimed that the child is not born out of their wedlock so he is not liable for providing any maintenance to the child. Admittedly, parties lived together upto 2013 and it is also alleged that opposite party no.2 solemnized her second marriage with one Mohd. Feroz Khan on 23.02.2016. Thus it is claimed that the child is not born out of their wedlock so he is not liable for providing any maintenance to the child. Hence, D.N.A. test was prayed for. 5. Learned A.G.A. submitted that marriage between the applicant and opposite party no.2 is admitted. To avoid maintenance the applicant filed the application for conducting D.N.A. Test so that opposite party no.2 could not get the benefit of suit filed by her. Birth of the child/adoption of the child during marriage life of the applicant and opposite party no.2 is admitted. There is presumption of the child being child of Firoz Khan-present applicant and opposite party no.2. It is not the contention of the applicant that child is the child born out of the second marriage of the opposite party no.2 even in the present application name of the second husband of opposite party no.2 is shown to be Feroz Khan and not Mohd. Feroz Khan as alleged by the applicant. It is admitted fact that application for D.N.A. test was moved in the lower court before the evidence of prosecution. 6. Admittedly, stage of defence evidence had not arrived till the date of passing the order. Lower court has also rejected the application of the applicant with the finding that application is being rejected at this very time as it is initial stage of the evidence of the prosecution side and learned appellate court has dittoed the order of the magistrate. It cannot be said that this is a final order regarding prayer of D.N.A. test of the child. Admittedly, the present applicant has not paid even any single penny to his wife or the alleged child for maintenance. 7. In my opinion, the application lacks merit and is liable to be rejected. 8. Hence the application is rejected.