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DNA test in Custody Case

IN THE HIGH COURT OF DELHI AT NEW DELHI
12.05.2008

Present : Mr.K.P. Mavi for the petitioners
Mr. Pawan Sharma/ Ms. Fizani Hussain, APP for the State.
Mr. Kapil Jain for the respondent

Coram: VIPIN SANGHI, J
Crl.M.C.No.1815/2007

This petition under Article 227 of the Constitution of India challenges the order dated
4.5.2007 passed by the learned M.M. on the application of the petitioner praying for the
conduct of DNA test in respect of respondent No.3 Master Ansh who according to the
petitioner, is not his biological son. Respondent No.1 is the wife of the petitioner.
Respondent No.2, admittedly, is the son of respondent No.1, from an earlier marriage.
RespondentNo.1 had preferred an application for seeking maintenance under Section
125Cr.P.C. In those proceedings the petitioner who is the husband ofrespondentNo.1,
preferred the aforesaid application seeking the conduct of DNA test in respect of respondent
No.3 to determine his parentage since, according to him, respondent No.3 is not his
biological child. That application has been rejected by the learned Metropolitan Magistrate
by the impugned order dated4.5.2007.The learned Magistrate has rejected the application by
holding that the DNA test will not have any effect on the merits of the present petition as
the present petition is under Section 125 Cr.P.C. and the provisions of Section 125Cr.P.C.
do not make any difference between legitimate and illegitimate children in order to
maintenance.

The submission of the petitioner is that the learned Magistrate has not appreciated the fact
that respondent No.3 is not alleged to be the legitimate child of the petitioner husband. The
claim of the husband is thatrespondentNo.3 is not his biological child and that he was
conceived by respondent No.1in adultery. He also refers to the order-dated 13.2.2007
wherein, at one stage, counsel for the respondent had recorded his no objection to the prayer
made inthe application of the petitioner. Even the subsequent statement made by learned
counsel for respondent No.1 herein, only pertains to the DNA test that the petitioner had
sought in respect of claimant No.2, who admittedly, is not the biological child of the
petitioner.

Counsel for the petitioner also relies on a decision of this Court in Kanchan Bedi and Anr.
vs. Gurpreet Singh Bedi 2003(67) DRJ 297. In that decision this Court had considered
various earlier decisions on the point and in paragraph 8 thus concluded there is no
impediment or violation of rights in directing persons to submit themselves for DNA test,
especially where the parentage of a child is in controversy for the grant of maintenance.
Submission of learned counsel for the respondent is that a perusal of the memo of parties as
filed by the petitioner shows that he claims himself to be the father of respondent No.3
Master Ansh. He further submits that in various other proceedings the petitioner has not
disowned his parentage qua respondent No.3.

In my view these submissions are of no avail. So far as the memo of parties is concerned the
petitioner has simply adopted the description of the parties as is contained in the application
filed by respondent Under Section 125Cr.P.C. The same is not determinative of the fact
whether the petitioner is the biological father of respondent No.3 or not. The parentage of
respondent No.3can only be determined by the conduct of DNA test. The liability to pay
maintenance under Section 125 Cr.P.C. can be avoided qua respondent No.3 only if it is
established that he is not the biological son of the petitioner. Considering the aforesaid, I am
of the view that the learned Magistrate wrongly rejected the application filed by the
petitioner praying for the conduct of DNA test of respondent No.3 Master Ansh.
Accordingly, I set aside the impugned order dated 4.5.2007 passed by the learned Magistrate
and further direct that DNA test of respondentNo.3 be conducted at All India Institute of
Medical Science, New Delhi. For the drawing of samples for the test, the respondents are
directed to ensure the presence of respondent No.3 before the Medical Superintendent,AIIMS on22.05.2008 at 11 a.m.

Petition stands disposed of.
Dasti.
May 12, 2008 VIPIN SANGHI, J

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