SMT.RAMESHWARIBAI Vs. ISHWAR LAL SAHU

JUDGEMENT

(1.) Heard Challenge in this revision is to the order dated 06.08.2014 passed by the Principal Judge, Family Court, Balod in Misc. Criminal Case No.33/2010, wherein an application preferred on behalf of Prakash Kumar & Harendra Kumar, who are minors, in a proceeding for claim of maintenance along with their mother for DNA test to confirm the paternity was dismissed.

(2.) The facts, which are involved in this case, are that, initially, an application under section 125 of Cr.P.C., 1973 was filed by the petitioner No.1 Smt. Rameshwari Bai, claiming to be wife of Ishwar Lal Sahu. The petitioner No.2 Prakash Kumar and petitioner No.3 Harendra Kumar had also joined in that petition and claimed maintenance against his father Ishwar Lal Sahu. The said application for 125 of Cr.P.C. claiming maintenance was rejected by an order dated 08.12.2010 in entirety. Against such order of rejection of the application under section 125 of Cr.P.C., 1973 a Criminal Revision bearing No.21/2011 was preferred, which was decided by an order dated 31.03.2011 by the High Court. The High Court came to a finding that the wife Smt. Rameshwari Bai could not establish that she is legally wedded wife and upheld the finding to that extent but in respect of claim of the minor sons Prakash Kumar and Harendra Kumar, the application was remanded with a finding that the family Courts are under obligation to provide complete opportunity and sufficient assistance to the parties to prove their pleading and claim. Thereby, the revision was partly allowed and the finding of rejection for maintenance relating to Prakash Kumar and Harendra Kumar both the minor sons were set aside and direction was given to decide the case afresh.

(3.) The records as would show the proceeding again commenced before the family Court Balod on 06.09.2011. During such proceeding, an application was filed by minor sons who were represented by amicus curie for test of DNA of non-applicant father as the father had denied the paternity. The family Court rejected such application on the ground that the respondent has acceded his consent for such DNA test, therefore, the Court cannot compel the non-applicant (father) to go for DNA test. Thereafter, the proceedings continued. Subsequently, another application for DNA test of non-applicant was filed wherein it was pleaded that the applicant sons can only prove their paternity through the DNA test and no other means are left out. It was further pleaded that the earlier rejection of the application for DNA test was informed by amicus curie who had represented the minors at the relevant time. Therefore, the DNA test is required to be carried out to prove the paternity of the child. Subsequently, the said application was decided by the order dated 06.08.2014 wherein the learned family Court rejected the application on the ground that on 07.02.2012 an application for DNA test was rejected, therefore, the said prayer cannot be repeated again and the application was dismissed.