HIRA SINGH Vs. STATE OF U P

JUDGEMENT

(1.) Heard Sri Ikrani Ahmad, learned counsel for the petitioner and learned A. G. A.

(2.) The brief facts of the case as stated in the writ petition are that the petitioner was married to respondent No. 2 in 1978 and 'Gauna' took place in 1982. He is an employee of Border Security Force and after his 'Gauna', he went to Punjab in 1983 to join his duties. He came back to village in 1984 and found that his wife was in advance stage of pregnancy and a male child was born on 8-6-1984. The petitioner filed a matrimonial case for dissolution of marriage. First Appeal No. 619 of 1989 (Heera Singh v. Lalmuni Devi) arising out of the said matrimonial case is pending before this Court. Respondent No. 2 moved an application under Section 125, Cr. P. C. claiming maintenance for her and respondent No. 3 who is minor son. In the said proceedings the petitioner moved an application praying that D. N. A. test of the minor child be conducted to establish that he was not born out of the wedlock and was illegitimate. This application was resisted by respondent No.2 and was dismissed on 7-2-2004. Revision filed against the order was also dismissed by Sessions Judge, Ghazipur.

(3.) It has been contended by the learned counsel for the petitioner that since he was on duty at Punjab as such he had no access to his wife and respondent No. 3 is not his child and in order to establish that, D. N. A. test ought to have been allowed by the Court below. It is also contended that the Court below has rejected the application on flimsy ground without any application of mind and D. N. A. test ought to have been permitted which would conclusively prove that he was not father of respondent No. 3. Learned counsel for the petitioner also contended that the provisions of Evidence Act were enacted when science was not so advanced and D. N. A. test was not even in existence. In this era of modern technology, provisions enacted more than hundred years back have lost their significance.