SURAJ SINGH TOMAR Vs. MEENAKSHI TOMAR

JUDGEMENT

(1.) This petition under Section 482 of Criminal Procedure Code has been filed questioning legality, validity and propriety of the order dt.11.02.2020 passed by the Additional Principal Judge, Family Court, Gwalior in Case No.151/2019 Mu.Fau. (Criminal), whereby the application filed by the petitioner/non-applicant under Section 45 of the Indian Evidence Act, 1872 for performing the DNA test has been rejected.

(2.) The brief facts leading to filing of this case are that the respondents No.1 and 2 had filed an application under Section 125 of Cr.P.C. before the Family Court. During the pendency of the application, the petitioner filed an application under Section 45 of the Indian Evidence Act alleging that from the date of marriage, the petitioner and the respondent No.1 were not in any kind of physical relationship but despite that the respondent No.1 gave birth to the respondent No.2. The respondent No.1 herself has admitted that the respondent No.2 is not the son of the petitioner. Respondent No.1 is having illicit relationship with some other person and therefore the respondent No.2 being the illicit child can not be granted maintenance under Section 125 of the Cr.P.C. In such circumstances, DNA test of respondent No.2 and the petitioner may be conducted by the authorized Medical Board.

(3.) Shri Ankit Saxena, learned counsel for the petitioner submitted that the order passed by the learned Family Court is totally illegal, arbitrary and against the settled position of law, therefore, the impugned order deserves to be set aside. Learned family Court also did not consider the fact that prior to filing of the case under Section 125 of Cr.P.C. by the respondent No.1, the petitioner had filed an application under Section 13 of the Hindu Marriage Act on the ground of illicit relationship, cruelty and adultery but this fact has been overlooked by the learned Family Court.