Himachal Pradesh High Court
Chet Ram vs Inder Dev on 10 September, 2024
Neutral Citation No. ( 2024:HHC:8285 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No. 220 of 2023 Reserved on : 09.08.2024 .
Date of decision :10.09.2024
Chet Ram ....Petitioner
Versus
Inder Dev ....Respondent
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting? No
For the Petitioner : M/s Nitin Soni and Sunil Dutt Gautam,
r Advocates.
For the Respondent : Ms. Tejasvi Thakur, Advocate as Court
Guardian.
Rakesh Kainthla, Judge
The present petition is directed against the order dated 04.04.2023, passed by learned Additional Principal Judge, Family Court, Kullu, (learned Trial Court) in Case No.22/2022 titled Inder Dev versus Chet Ram. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).
2. Briefly stated, the facts giving rise to the present petition are that petitioner-Inder Devfiled a petition before the learned Trial Court for seeking maintenance @₹ 10,000/- per month. He asserted that his mother Devki Devi married the respondent on 01.05.2011 as ::: Downloaded on - 11/09/2024 20:30:39 :::CIS 2 Neutral Citation No. ( 2024:HHC:8285 ) per Hindu Rites and Customs at Vaishno Mata Temple Kullu District Kullu. Respondent-Chet Ram and Devki Devi resided together as .
husband and wife. The petitioner was born to them on 06.09.2012.
The differences arose between the petitioner's parents and the petitioner and his mother were forced to live separately. The respondent neglected to maintain the petitioner. The petitioner is a minor having no source of income. The respondent being a father is duty bound to maintain the petitioner. Hence, the petition seeking maintenance.
3. The petition was opposed by filing a reply taking preliminary objection regarding lack of maintainability. The contents of the petition were denied on merits. It was specifically denied that Devki Devi is the legally wedded wife of the respondent and the petitioner was born to respondent and Devki Devi. It was asserted that the respondent was married to Pushpa Devi. A false plea has been taken by the petitioner; hence, it was prayed that the present petition be dismissed.
4. The respondent filed an application for a DNA profile to ascertain the petitioner's paternity. It was asserted that the respondent was married to Pushpa Devi and they obtained a divorce on 26.02.2015. Devki Devi was the wife of somebody else in the year ::: Downloaded on - 11/09/2024 20:30:39 :::CIS 3 Neutral Citation No. ( 2024:HHC:8285 ) 2011. There was a proposal of marriage between the respondent and Devki Devi but the same did not materialize. Naresh Kumar is the .
real father of the petitioner. Devki Devi got a false entry recorded in the various documents showing the respondent as the father of the petitioner. Hence, it is necessary to carry out a DNA test to ascertain the paternity of the petitioner.
5. The application was opposed by filing a reply taking preliminary objection regarding lack of maintainability. The contents of the application were denied on merits. It was asserted that the respondent is recorded as the father of the petitioner in the Birth Certificate issued by MC Kullu and in the records of Government Primary School, Khokhan. The respondent cannot deny the paternity of the petitioner after the lapse of 11 years. Sufficient documentary evidence was brought on record to show that the petitioner is the son of the respondent. Hence, it was prayed that the application be dismissed.
6. The learned Trial Court held that the petition was at an initial stage. The proceedings under Section 125 of Cr.P.C. are summary in nature. The respondent is recorded as the father of the petitioner in various documents placed on record. Respondent has also filed the documents to show that he was married to Pushpa and ::: Downloaded on - 11/09/2024 20:30:39 :::CIS 4 Neutral Citation No. ( 2024:HHC:8285 ) not to Devki. The petitioner has, prima facie, shown that the respondent is his father. The evidence was yet to be led and if a .
proper case was made out for a DNA test, the same would be considered after leading the evidence. Consequently, the application was dismissed.
7. Being aggrieved from the order passed by the learned Trial Court, the present petition has been filed asserting that the learned Trial Court erred in dismissing the application. The relationship between the petitioner's mother and the respondent was denied. The presumption under Section 112 of the Indian Evidence Act would not apply to the present case. The DNA report would prove the paternity. A person who is not the father of the child cannot be burdened with liability to maintain the child. DNA profiling is permissible in the proceedings under Section 125 of Cr.
P.C., therefore, it was prayed that the present petition be allowed and the petitioner and the respondent be subjected to DNA profiling to determine the paternity of the petitioner.
8. I have heard M/s Nitin Soni and Sunit Dutt Gautam, learned counsel for the respondent and Ms Tejasvi Thakur, Court Guardian for the petitioner.
::: Downloaded on - 11/09/2024 20:30:39 :::CIS 5Neutral Citation No. ( 2024:HHC:8285 )
9. Mr. Nitin Soni, learned counsel for the respondent submitted that the relationship between the parties is in dispute. The .
petitioner has claimed that he is the son of the respondent, whereas the respondent has denied the paternity of the petitioner. This dispute can be resolved by the DNA analysis, which is the scientific proof, therefore, he prayed that the present petition be allowed and the order passed by the learned Trial Court be set aside. He relied upon the judgment of Sachin Aggarwal versus State of U.P., 2024:
AHC:100046, Vijay Kumar versus Renu, 2019:DHC:76, Minor Seema Mahato vs. Alot Mahato and anr., 2018 STPL 7926 Calcutta, and Ram Gopal versus Vidya Devi, 2024:HHC:456 in support of his submission.
10. Ms Tejasvi Thakur, learned Court Guardian for the respondent submitted that a DNA test cannot be allowed to displace the presumption contained in Section 112 of the Indian Evidence Act.
She relied upon the judgment of Satya Roopa Sinha versus Sarwan Kumar Mehto in CRR (F) No.117 of 2019 decided on 02.06.2022 in support of her submission.
11. I have given considerable thought to the submissions made at the bar and have gone through the records carefully.
::: Downloaded on - 11/09/2024 20:30:39 :::CIS 6Neutral Citation No. ( 2024:HHC:8285 )
12. The respondent specifically asserted that he was married to Pushpa and had taken a divorce from her on 26.02.2015. A copy of .
the decree passed by learned District Judge, Kullu in HMP No. 76/2014 decided on 26.02.2015 between Pushpa Devi and Chet Ram has been filed. This shows that the marriage subsisted between Pushpa Devi and Chet Ram which was dissolved on 26.02.2015. The copy of the Pariwar Register also shows Pushpa as the wife of Chet Ram. An entry has been recorded that the name of Pushpa was deleted after the divorce. The name of Maan Dassi was recorded as a wife due to the marriage solemnized on 16.01.2016. These documents prima facie show that the averments made in the petition that a valid marriage between Devki and respondent Chet Ram was solemnized on 01.05.2011 are not correct because a marriage solemnized during the subsistence of a valid marriage is void and cannot be called to be a valid marriage. Thus, the submission that the presumption under Section 112 of the Indian Evidence Act applies to the present case and DNA test cannot be conducted to determine the paternity of the petitioner is not acceptable.
13. It was laid down in Rohit Shekhar v. Narayan Dutt Tiwari, 2010 SCC OnLine Del 4573 that there is a difference between legitimacy and paternity. While Section 112 of the Indian Evidence ::: Downloaded on - 11/09/2024 20:30:39 :::CIS 7 Neutral Citation No. ( 2024:HHC:8285 ) Act recognises legitimacy, it does not deal with paternity. It was observed:
.
26. A distinction has to be drawn here between 'legitimacy' and 'paternity' of the child. Section 112 of the Act was a provision enacted by the British directed at safeguarding the interests of the child by securing its legitimacy. This provision was modelled around a rigid English law system, which may be aptly summarized in the majority opinion in the case of Russel v. Russel, (1924) AC 687 where it was held that neither the declarations of the wife nor her testimony that the child was the child of a man other than her husband were admissible as evidence to prove or disprove paternity.
Similarly, the evidence of the husband that he was not the father of the child was also inadmissible in that regard.
However, it was the dissenting opinion of Lord Summers that gained more importance over the years. He held that:
"in the administration of justice, nothing is of higher importance than that all relevant evidence should be admissible and should be heard by the tribunal that is charged with deciding according to the truth."
27. The law in England is now guided by the Family Reforms Act, 1969 (later replaced by the 1987 Act); it enables the Court to draw a distinction between parentage and paternity thus allows the conduct of tests to determine who is the biological father of the child. In highlighting the importance of the right of the child to know the truth of its paternity the court, in W. v. W, 1973 (1) WLR 1115 explained:
"The interests of justice in the abstract are best served by the ascertainment of the truth and there must be few cases where the interests of children can be shown to be best served by the suppression of the truth."
28. English law on this point has no doubt undergone a major change. No such distinction has been statutorily created in Indian law and it is not in this Court's domain to do so. However, this Court is of the opinion that the object of Section 112 of the Act was to determine 'legitimacy' and not 'paternity'. Such an interpretation of this provision would be ::: Downloaded on - 11/09/2024 20:30:39 :::CIS 8 Neutral Citation No. ( 2024:HHC:8285 ) in accordance with both the UN Declaration on Human Rights and the Conventions on the Rights of the Child. India is a ratifying party to both these international instruments and as such, they constitute an obligation on the State under Article .
51(c) of the Constitution. Where the provisions of law may be interpreted in different ways, the law is to be interpreted in a manner that would ensure compliance with the State's international obligations, if it is consistent with provisions of Part III of the Constitution of India. Such a construction assumes special importance in cases where the human rights of the individuals are concerned. The Supreme Court has sought to use this rule of construction to harmonize India's domestic laws with its international obligations in matters dealing with valuable human rights in many instances. This rule assumes relevance in instances where there has either been legislative inactivity leading to a lacuna in the law, or law has become so archaic that it is not in conformity with the existing system of rights.
14. This judgment was carried in appeal and was upheld in Rohit Shekhar Vs. Narayan Dutt Tiwari, AIR 2012 Delhi 151and it was held:
"26. Though in the light of what we have held, it is not strictly relevant, but we are unable to restrain ourselves from recording what the Court of Appeal (Civil Division) observed in Re H and A (Children) (Paternity: Blood Tests) [2002] EWCA Civ 383:--1721 "Over thirty years ago in his speech in S v. Mc C Lord Hodson said:
"The only disadvantage to the child which is put forward as an argument against the use of a blood test, not for therapeutic purposes but to ascertain paternity, is that the child is exposed to the risk that he may lose the protection of the presumption of legitimacy. Without seeking to depreciate the value of this presumption it is, I think, fair to say that whatever may have been the position in the past the general attitude ::: Downloaded on - 11/09/2024 20:30:39 :::CIS 9 Neutral Citation No. ( 2024:HHC:8285 ) towards illegitimacy has changed and the legal incidents of being bom a bastard are now almost non- existent. I need not dilate upon this, for I recognise that it is impossible to say that there is no stigma of bastardy .
even though it be no more than the indirect stigma of the imputation of unchastity to the mother of the child so described. On the other hand, it is difficult to conceive of cases where, assuming illegitimacy in fact, it is to the advantage of the child that this legal status of legitimacy should be preserved only perhaps to be displaced by firm evidence of illegitimacy decided later in his or her life from a blood test.
The interests of justice in the abstract are best served by the ascertainment of the truth and their must be few cases where the interests of children can be shown to be best served by the suppression of truth. Scientific evidence of blood groups has been available since the early part of this century and the progress of serology has been so rapid that in many cases certainty or near certainty can be reached in the ascertainment of paternity. Why should the risk be taken of a judicial decision being made which is factually wrong and may later be demonstrated to be wrong?"
Those principles have been consistently applied in subsequent cases, including Re H (A Minor) (Blood Tests:
Parental Rights), [1996] WLR 506 and Re T (A Child) (DNA Tests: Paternity) [2001] 3 FCR 577. The judge sought to distinguish those two authorities in his concluding paragraph, which I have cited above. It draws the distinction that in those two cases there were serious doubts as to the husband's procreative capacities. I do not consider that that factual distinction begins to displace the points of principle to be drawn from the cases, first that the interests of justice are best served by the ascertainment of the truth and second that the court should be furnished with the best available science and not confined to such unsatisfactory alternatives as presumptions and inferences. It seems to me obvious that all that Lord Hodson expressed in the passage that I have cited applies with even greater force and logic in ::: Downloaded on - 11/09/2024 20:30:39 :::CIS 10 Neutral Citation No. ( 2024:HHC:8285 ) a later era. First, there have been huge scientific advances with the arrival of DNA testing. Scientists no longer require blood, thus removing what for some is the unbearable process of its extraction. Of even greater importance is the abandonment of .
the legal concept of legitimacy achieved by the Family Law Act 1987."
It was further observed that the paternity of any child is to be established by science and not by legal presumption or inference or by a long and acrimonious trial. xxxxxxxxxx
34. We may highlight that as per the dicta of the Supreme Court noticed by the learned Single Judge also, a direction for DNA testing can be issued only after the test of eminent need is satisfied. The order dated 23rd December 2010 directed DNA testing of respondent no. 1 only after holding the said test to be satisfied in the facts of the present case. The impugned judgment though also holding that the test of eminent need is satisfied has declined to enforce the order. It is thus not as if the order for DNA testing is made or has been made in the present case on the asking or in a routine manner for the consequence only of adverse inference to flow from non-
compliance thereof. We find inherent contradiction in the Court on the one hand holding eminent need for such a test and in the same breath allowing the need to remain unsatiated. We also find the drawing of adverse inference from refusal to comply with the direction for medical examination to be not sufficient to satiate the need found by the Court. A legal fiction under Section 114 of the Evidence Act, as adverse inference is, is not reality but which the said provision requires the Court to accept as reality. The Court is not bound to or obliged to draw such adverse inferences (see Emperor v. Sibnath Banerjee, AIR 1943 FC 75, Dhanvantrai Balwantrai Desai v. State of Maharashtra, AIR 1964 SC 575 and Fakir Mohd. (Dead) by LRs. v. Sita Ram, (2002) 1 SCC 741:
AIR 2002 SC 433). A presumption is not in itself evidence but only makes a prima facie case for parties in whose favour it exists (see Sodhi Transport Co. v. State of U.P., (1986) 2 SCC
486). As far back as in Damisetti Ramchendrudu v. Damisetti Janakiramanna, AIR 1920 PC 84 it was held that presumption ::: Downloaded on - 11/09/2024 20:30:39 :::CIS 11 Neutral Citation No. ( 2024:HHC:8285 ) cannot displace adequate evidence. The Supreme Court also in Mohanlal Shamji Soni v. Union of India, 1991 Supp (1) SCC 271 held that it is the rule of law in evidence that the best available evidence should be brought before the Court to prove a fact or .
the points in issue and the Court ought to take an active role in the proceedings in finding the truth and administering justice. Recently in Maria Margarida Sequeria Fernandes v. Erasmo Jack de Sequeria (Dead), 2012 (3) SCALE 550, it was reiterated that the truth is the guiding star and the quest in the judicial process and the voyage of trial. The trend world over of full disclosure by the parties and deployment of powers to ensure that the scope of factual controversy is minimized was noticed. We are therefore of the opinion that adverse inference from non-compliance cannot be a substitute to the enforceability of a direction for DNA testing. The valuable right of the appellant under the said direction, to prove his paternity through such DNA testing cannot be taken away by asking the appellant to be satisfied with the comparatively weak 'adverse inference'.
15. The matter reached the Hon'ble Supreme Court in N.D. Tiwari vs. Rohit Shekhar 2012 (12) SCC 554 and the judgment was modified. It was held that the right to privacy is not absolute and can be curtailed in certain situations. It was observed:
"31. The learned Single Judge has in paras 74, 78, 79 and 80 of the impugned judgment [Rohit Shekhar v. Narayan Dutt Tiwari, IA No. 10394 of 2011 in CS (OS) No. 700 of 2008, decided on 23- 9-2011 (Del)] also held that the right of privacy is subject to such action as may be lawfully taken for the protection of rights of others; that the level of privacy protection depends on the context; that human rights law justifies carrying out of compulsory and mandatory medical examination which may be bodily invasive and that the right to privacy is not absolute and can be reasonably curtailed. The learned Single Judge having held so, we are unable to fathom how the same factors could impede the enforceability and implementability of the ::: Downloaded on - 11/09/2024 20:30:39 :::CIS 12 Neutral Citation No. ( 2024:HHC:8285 ) order. What is not an impediment to the making of the order, cannot become an impediment to the enforceability of the order and would be tantamount to saying that the Court order is violative of the rights of the litigant .
16. It was further held that presumption is evidence but only makes a prima facie case and the directions were justified : -
55. A presumption is not in itself evidence but only makes a prima facie case for parties in whose favour it exists (see Sodhi Transport Co. v. State of U.P. [(1986) 2 SCC 486: 1986 SCC (Tax) 208]). As far back as in Damisetti Ramchendruduv. Damisetti Janakiramanna [AIR 1920 PC 84] it was held that presumption cannot displace adequate evidence. The Supreme Court also in Mohanlal Shamji Soniv.Union of India [1991 Supp (1) SCC 271:
1991 SCC (Cri) 595] held that it is the rule of law in evidence that the best available evidence should be brought before the court to prove a fact or the points in issue and the court ought to take an active role in the proceedings in finding the truth and administering justice.
56. Recently in Maria Margarida Sequeira Fernandesv. Erasmo Jack de Sequeira [(2012) 5 SCC 370] it was reiterated that the truth is the guiding star and the quest in the judicial process and the voyage of trial. The trend world over of full disclosure by the parties and deployment of powers to ensure that the scope of factual controversy is minimised was noticed. We are therefore of the opinion that adverse inference from non-
compliance cannot be a substitute to the enforceability of a direction for DNA testing. The valuable right of the appellant under the said direction, to prove his paternity through such DNA testing cannot be taken away by asking the appellant to be satisfied with the comparatively weak "adverse inference".
57. The impugned judgment refers extensively to the law in this regard in other countries. We are however of the opinion that once the Supreme Court in the judgments supra has held the civil court entitled to issue such a direction, the law in other jurisdictions pales into insignificance.
::: Downloaded on - 11/09/2024 20:30:39 :::CIS 13Neutral Citation No. ( 2024:HHC:8285 )
17. It was held by the Delhi High Court in Vijay Kumar v. Renu, 2019 SCC OnLine Del 6458 that in case of paternity dispute in a .
proceedings under Section 125 of CrPC, the Courts can order a DNA test. It was observed:
"3. Upon hearing and on perusal of impugned order and decision in Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik, (2014) 2 SCC 576, I find that Supreme Court in Nandlal Wasudeo Badwaik (Supra) has clarified that if the issue of paternity arises before the matrimonial court, then the said court is competent to pass appropriate orders. Supreme Court in Nandlal Wasudeo Badwaik (Supra) has reiterated that DNA is an accurate test. In the instant case, the occasion to pass the impugned order had arisen while considering the application under Section 125 Cr. P.C., which requires that maintenance has to be paid even to an illegitimate minor child.
4. In such a situation, conclusive proof of marriage cannot be made the basis to repel the impugned order, which directs the petitioner and the minor child to be subjected DNA test. In the considered opinion of this Court, the impugned order does not suffer from any illegality or infirmity."
18. Similarly, Allahabad High Court held in Sachin Aggarwal (supra) that the DNA test can be ordered to determine paternity. It was observed:
11. 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, this Court finds that the paramount consideration in such cases is maintenance and the welfare of the children.::: Downloaded on - 11/09/2024 20:30:39 :::CIS 14
Neutral Citation No. ( 2024:HHC:8285 )
12. In Sharda v. Dharampal, (2003) 4 SCC 493, para 80, the Hon'ble Apex Court held that the court must balance the interests of the parties and ensure that the children's welfare is not compromised. The DNA test, although invasive, is .
necessary to conclusively determine paternity, which directly impacts the children's right to maintenance.
13. I must also refer back to the substance of the decision in Sharda V. Dharmpal (supra), which upheld the authority of a civil court to order a medical examination in the exercise of the inherent powers vested in it by Section 151 of the Code of Civil Procedure, 1908. The same reasoning cannot be readily applied in the criminal context. Despite the absence of a statutory basis, it is tenable to hold that criminal courts should be allowed to direct the impugned tests with the subject's consent, keeping in mind that there is no statutory prohibition against them either.
14. Furthermore, the presumption of legitimacy under Section 112 of the Indian Evidence Act places the burden of disproving paternity on the person alleging illegitimacy. However, the use of DNA testing can provide a scientific basis for resolving such disputes definitively. In Banarsi Dass v. Teeku Datta (2005) 4 SCC 449, the Hon'ble Supreme Court acknowledged that while the presumption of legitimacy is strong, it can be rebutted by clear and convincing evidence. A DNA test, being a reliable and conclusive method, can either confirm or negate the presumption, thereby ensuring that the maintenance obligations are accurately determined.
15. For the pursuit of justice, the court must employ all available means to uncover the truth and safeguard the rights of all individuals. The fundamental duty of the judiciary is to ensure that justice prevails by utilizing the most accurate and reliable methods, thus upholding the principles of fairness and equity for everyone involved. In the case of Nandlal Wasudeo Badwaik Vs. Lata Nandlal Badwaik & Anr (2014) 2 SCC 576, the Hon'ble Supreme Court in para 17, highlighted the reliability and scientific accuracy of DNA tests. The Court emphasized that while Section 112 of the Evidence Act creates a presumption of conclusive proof under certain conditions, ::: Downloaded on - 11/09/2024 20:30:39 :::CIS 15 Neutral Citation No. ( 2024:HHC:8285 ) this presumption is rebuttable. The Supreme Court asserted that in the interest of justice, the truth must be ascertained using the best available science, stating: - "In our opinion, when there is a conflict between a conclusive proof envisaged .
under the law and a proof based on scientific advancement accepted by the world community to be correct, the latter must prevail over the former."
16. In Jamshed Vs. State of U.P. [1976 Cri L J 1680 (All)], wherein it was held that a blood sample can be compulsorily extracted during a "medical examination" conducted under Section 53 Cr.P.C. At that time, the collection of blood samples was not expressly contemplated in the said provision. Nevertheless, the Court had ruled that the phrase "examination of a person"
should be read liberally so as to include an examination of what is externally visible on a body as well as the examination of an organ inside the body.
17. In light of the Hon'ble Supreme Court's decision in Aparna Ajinkya Firodia v. Ajinkya Arun Firodia 2023 LiveLaw (SC) 122, this court recognizes the significance and sensitivity surrounding the order for a DNA test. It is imperative to acknowledge that while a DNA test is a powerful tool in ascertaining biological relationships, its deployment must be carefully weighed against potential misuse, the resultant social stigma, and the psychological impact on the children. The court must be cautious to avoid directing such tests in a routine or casual manner, and instead should assess the necessity based on the specific facts and circumstances of each case.
18. The Supreme Court in the matter of Selvi Vs. State of Karnataka, 2010 (7) SCC 263 has categorically held that the civil court can direct for conducting a medical examination to ascertain the mental state of a party of a divorce proceeding.
19. Furthermore, the applicant's refusal to undergo the DNA test, a procedure deemed essential for determining paternity and safeguarding the child's welfare, could warrant an adverse inference under Section 114, Illustration (h) of the Indian Evidence Act. This provision allows the court to infer that evidence which could be and is not produced would if ::: Downloaded on - 11/09/2024 20:30:39 :::CIS 16 Neutral Citation No. ( 2024:HHC:8285 ) produced, be unfavourable to the person withholding it. In Rohit Shekhar v. Narayan Dutt Tiwari 2011 SCC OnLine Delhi 4076, the Delhi High Court affirmed this principle, stating that refusal to undergo a DNA test in a paternity dispute can lead to .
an adverse inference against the refusing party. Such an inference, while not conclusive, strengthens the court's ability to arrive at a just decision based on the available evidence and the best interests of the children.
20. The psychological and social implications of unresolved paternity disputes cannot be ignored. A definitive determination of paternity through a DNA test can provide closure and stability for all parties involved, particularly the children. Ensuring that the children receive rightful maintenance that not only fulfils their financial needs but also affirms their social and legal status.
21. In the present 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 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."
19. A heavy reliance was placed by Ms. Tejasvi Thakur, learned Court Guardian upon the judgment of Satya Roopa Sinha (supra), however, in the cited case, the parties were married to each other and the presumption under Section 112 applied to their case. In ::: Downloaded on - 11/09/2024 20:30:39 :::CIS 17 Neutral Citation No. ( 2024:HHC:8285 ) the present case, since there was prima facie no valid marriage between the petitioner's mother and the respondent; hence, the .
presumption under Section 112 of Indian Evidence Act does not apply to the present case and the cited judgment would not assist the petitioner.
20. The learned Trial Court also noticed that the respondent was validly married at the time of the alleged marriage between the respondent and the petitioner's mother but failed to see the implication of this fact; hence, the order passed by the learned Trial Court cannot be sustained.
21. Consequently, the present petition is allowed and the order passed by learned Trial Court on 04.04.2023 is ordered to be set aside.
22. The application filed by the respondent is allowed and it is ordered that the petitioner and respondent shall go for DNA test to determine the paternity of the petitioner. The respondent will bear the expenses of the test. The modalities of the test would be worked out by the learned Trial Court in consultation with the parties and their respective counsel.
::: Downloaded on - 11/09/2024 20:30:39 :::CIS 18Neutral Citation No. ( 2024:HHC:8285 )
23. The parties through their respective counsel are directed to appear before the learned Trial Court on 27th September, 2024.
.
24. Record be sent forthwith so as to reach the learned Trial Court well before the date fixed.
(Rakesh Kainthla) Judge 10th September, 2024 (saurav pathania) ::: Downloaded on - 11/09/2024 20:30:39 :::CIS