The Allahabad High Court while disposing of an application observed right to maintenance is not merely a legal provision but is deeply rooted in fundamental human rights. The Universal Declaration of Human Rights recognizes the right to an adequate standard of living, which includes food, clothing, housing, and medical care. Denying maintenance due to unresolved paternity issues would be a violation of their basic human rights.
A Single Bench of Justice Prashant Kumar passed this order while hearing an application under section 482 filed by Sachin Agarwal.
The application under Section 482 of Cr.P.C has been filed by the applicant praying for quashing of the order dated 03.11.2021 passed by Additional Civil Judge/Family Court, District Mathura, in case under Section 125 Cr.P.C, Police Station Vrindavan, District Mathura.
Counsel for the applicant submits that there is matrimonial dispute between the parties.
It is alleged that earlier the opposite party no 2 was married to one Sunil Kumar. After the disappearance of Sunil Kumar for many years, the opposite party no 2 re-married the applicant and out of their wedlock two children were born. Thereafter there was some matrimonial discord and hence the opposite party no 2 had filed an application under Section 125 Cr.P.C for maintenance. In the pending proceedings under Section 125 Cr.P.C, applicant had filed an application stating therein that the children are not of his and hence there was no question of paying any maintenance.
On the request of opposite party no 2, to ascertain the parentage sought for a DNA test, the trial Court by order dated 03.11.2021 ordered for DNA test.
By means of the application, the applicant has challenged the impugned order dated 03.11.2021, by which, the court had ordered for the DNA Test of the applicant.
Arvind Kumar, counsel for the applicant submitted that the opposite party no 2 is not his legally wedded wife so there is no question of paying any maintenance under Section 125 Cr.P.C.
He further submitted that the opposite party no 2 had earlier initiated the proceedings under Section 498A IPC against the applicant no.1 which was dismissed as they are not legally married. Thereafter the opposite party no 2 had filed a case under Sections 12, 18, 19, 20, 21 and 22 of the Protection of Women from Domestic Violence Act, 2005, which was also rejected on the same ground.
He also submitted that in various documents the opposite party no 2 has been stating the name of her husband as Sunil Kumar.
He said that no court can force the applicant to undergo a DNA test, without his consent. To buttress his argument, he placed reliance upon the judgment of the Apex Court in the case of Goutam Kundu Vs State of West Bengal reported in 1993 SCC (3) 418, in which it has been held that the Court cannot order for blood test.
He further placed reliance upon the judgment of Apex Court in the case of Ashok Kumar Vs Raj Gupta and others reported in 2021 0 Supreme (SC) 534. Hence the order issued to undergo a DNA test is completely contrary to the prevailing law.
Rajesh Rai, counsel appearing for the opposite party no 2 submitted that the marriage of opposite party no 2 and the applicant was solemnized in the month of May, 2007. Out of the wedlock two children were born, in the birth certificates of the children, the name of the applicant has been recorded as father of the children. In fact the entire expenses of the delivery of the children was borne by the applicant. Even in the school the name of the father of the children is recorded as Sachin Agarwal (present applicant).
He further submitted that thereafter the name of the father of the children was changed in connivance of the applicant and the headmistress of the school, for which, the opposite party no 2 has lodged an FIR against the applicant and others. Against the said FIR, the applicant had approached this Court for staying his arrest by filing a criminal writ petition, which was dismissed.
He also submitted that the applicant is the biological father of the children of the opposite party no 2, and just to avoid paying any maintenance the applicant has taken a stand that he is not the father of the children of opposite party no 2. On his denial, to find out the truth the trial Court had ordered for a DNA test, which the applicant is opposing. The applicant cannot oppose to undergo the DNA test on the ground that no DNA test can be undertaken without his consent
After considering the submissions and examining the relevant legal principles and precedents, the court in determining the appropriateness of ordering a DNA test in the case, it is crucial to consider the provisions of the Act as well as the principles and precedents established by the Supreme Court, the Court said.
A DNA test can serve as a decisive tool in resolving paternity disputes, which directly impacts the question of maintenance for the children involved. The primary aim of such testing is to arrive at the truth regarding paternity, which is essential for the just adjudication of maintenance claims, the Court found that the paramount consideration in such cases is maintenance and the welfare of the children.
“In this case, it is essential to consider the broader implications of directing a DNA test. The court is mindful of the potential trauma and stigma that might affect the children, should the paternity dispute be subjected to public scrutiny. The principle that the best interests of the children should be of the paramount consideration in all matters concerning them, as enshrined in Article 3 of the Convention on the Rights of the Children. The right to maintenance is not merely a legal provision but is deeply rooted in fundamental human rights. The Universal Declaration of Human Rights recognizes the right to an adequate standard of living, which includes food, clothing, housing, and medical care. In the context of children, maintenance is indispensable for their survival, growth, and development. Denying maintenance due to unresolved paternity issues would be a violation of their basic human rights.
In this case though the applicant is refusing the maintenance and the paternity of the children, however, when the court ordered for the DNA test, the applicant has assailed that order in this application. The applicant cannot be allowed to blow hot and cold at the same time. He cannot deny the paternity of the children and at the same time he refuses to undergo the DNA test. If he is doubting paternity the only way to prove his case is by DNA testing. Moreover, the applicant cannot equate the DNA test with the other tests like Narco test which needs a prior consent”, the Court observed while disposing the application.
Accordingly, the Court ordered the applicant to either fulfil his obligation of providing maintenance or undergo a DNA test, thereby dispelling any adverse inference drawn pursuant to Section 114, Illustration (h) of the Indian Evidence Act, 1872.