MOHAMMED MUNAWAR Vs. STATE OF TELANGANA

JUDGEMENT

(1.) The petitioner(Husband) is questioning the orders of the learned Additional Family Court Judge dtd. 29/11/2022 in Crl.M.P.No.44 of 2020 in M.C.No.243 of 2017 directing the him to undergo DNA test to determine whether he is the father of the minor namely Mohammed Rayyam Ahmed/3rd respondent(Son) herein. The said petition was filed by the 2nd respondent herein(Wife) before the Family Court. For convenience the parties will be referred as "Husband', 'Wife' and "Son'.

(2.) According to wife of the petitioner, after marriage they were blessed with the child on 2/11/2013. On the ground of continued harassment, an application was filed under Sec. 125 of Cr.P.C by the wife. In the counter affidavit filed by the husband, he denied the marital relationship and also stated that he is not the biological father of the child. For the said reason, to determine the paternity of the child, the wife filed the petition under Sec. 45 r/w Sec. 112 of the Indian Evidence Act praying the Court to direct DNA testing to determine the paternity of the child.

(3.) Learned counsel appearing for the petitioner would submit that as a matter of routine, the courts cannot direct parties to undergo DNA testing. Further no foundation is laid or facts are narrated by the Court to order such test. In support of his contention, he relied on the judgment of the Hon'ble Supreme Court in the case of Inayath Ali v. State of Telangana,Criminal Appeal No.1569 of 2022, dtd. 15/9/2022. In the said case, the trial Court while trying a case under Ss. 498-A, 323, 354, 506 and 509 of IPC, directed DNA testing to determine the paternity of the two minor daughters. In revision, this court held that the orders of the learned trial Court was proper and upheld the said orders. When the matter was carried to the Hon'ble Supreme Court, the Hon'ble Supreme Court held that when the paternity of the children was not in question in the said proceedings, mechanically directing the petitioner therein to subject himself to DNA testing does not arise.