# Dr. Irfaq @ Mohammad Irfaq Husain v. State of U.P. & Anr

- **Citation:** (2024) 5 ILRA 879
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-24
- **Case number:** Application U/s 482 No. 9294 of 2023
- **Bench:** Rahul Chaturvedi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-irfaq-mohammad-irfaq-husain-v-state-of-u-p-anr-52090
- **Pages:** 16

## Headnote

A. Criminal Law-Criminal Procedure Code,
1973-Section 482 & 125-the applicant
challenged the maintenance order granted
to his estranged wife and their two minor
daughters-the applicant invoking a DNA
test report, contended that he was not the
biological father of one of the daughtersThe
court,
however,
dismissed
the
applicant's plea for a fresh DNA test and
rejected the quashing of the lower court's
orders-the court found that the applicant's
plea for a DNA test was primarily an
attempt to avoid paying maintenancecourt directed the applicant to clear any
outstanding payments within one month
and continue making regular payments
henceforth.(Para 1 to 33)

B. Section 112 of the Indian Evidence Act
presumes the legitimacy of a child born
during a valid marriage unless nonaccess between the spouses is proven.
Bald and unsubstantiated allegations of
adultery, without any concrete evidence
of non-access, are sufficient to rebut the
presumption of legitimacy.(Para 17 to
32)

The application is dismissed. (E-6)

List of Cases cited:

## Text

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5 All. Dr. Irfaq @ Muhammad Irfaq Husain Vs. State of U.P. & Anr.
879
15. In the present case, on the basis
of the complaint, statement and documents
on record, cognizance was taken by the
earlier Court not having jurisdiction, which
was subsequently transferred to the Judicial
Magistrate, Orai; this will not in any way
occasion a failure of justice to the applicant
because transferee court itself has to
consider the same complaint and document
and pass order on the basis of prima facie
satisfaction. Section 461 (k) Cr.P.C. further
provides that if the cognizance is taken by a
Court which is not competent under Section
190(1)(c) Cr.P.C., only then the cognizance
will vitiate the proceeding. However, in the
present case, cognizance was taken under
Section 190 (1) (a) Cr.P.C., not under
Section
190(1)(c)
Cr.P.C.
Therefore,
cognizance will not be vitiated under
Section 461 (k) of Cr.P.C.

16. In the present case, the earlier
Court of Chief Judicial Magistrate, Jalaun at
Orai, after taking evidence on an affidavit
under Section 145 N.I. Act summoned the
accused persons. Subsequently, accused
persons, including applicant no.1, appeared
before the Court below. Therefore, in view
of the above legal position, the transferee
Court will continue to proceed from that
stage instead of hearing the complaint
afresh.

17. In view of the above, there is no
illegality in the impugned order dated
01.02.2024.
Therefore,
the
present
application is dismissed.
----------
(2024) 5 ILRA 879
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.05.2024

BEFORE

THE HON'BLE RAHUL CHATURVEDI, J.
Application U/s 482 No. 9294 of 2023
&
Application U/s 482 No. 1090 of 2023

Dr. Irfaq @ Mohammad Irfaq Husain
 ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri Abhay Mani Tripathi, Sri Nipun Singh

Counsel for the Respondent:
G.A.

A. Criminal Law-Criminal Procedure Code,
1973-Section 482 & 125-the applicant
challenged the maintenance order granted
to his estranged wife and their two minor
daughters-the applicant invoking a DNA
test report, contended that he was not the
biological father of one of the daughtersThe
court,
however,
dismissed
the
applicant's plea for a fresh DNA test and
rejected the quashing of the lower court's
orders-the court found that the applicant's
plea for a DNA test was primarily an
attempt to avoid paying maintenancecourt directed the applicant to clear any
outstanding payments within one month
and continue making regular payments
henceforth.(Para 1 to 33)

B. Section 112 of the Indian Evidence Act
presumes the legitimacy of a child born
during a valid marriage unless nonaccess between the spouses is proven.
Bald and unsubstantiated allegations of
adultery, without any concrete evidence
of non-access, are sufficient to rebut the
presumption of legitimacy.(Para 17 to
32)

The application is dismissed. (E-6)

List of Cases cited:

1. Rambhau & anr.Vs St. of Mah. (2001) 4 SCC
759

2. Nand Lal Wasudeo Badwaik Vs Lata Nandlal
Badwaik & anr.(2014) 2 SCC 576
880 INDIAN LAW REPORTS ALLAHABAD SERIES
3. Deepanwita Ray Vs Ronobroto Roy (2015) 1
SCC 365

4. Priyanka Janardhan Patil Vs Janardhan
Raghunath Patil (2022) SCC Online SC 1047

5. Gautam Kundu Vs St. of W.B. (1993) AIR 2295

6. Aparna Ajinkya Firodia Vs Ajinkya Arun Firodia
(2023) SCC Online SC 161

7. Ashok Kumar Vs Raj Gupta & ors. (2022) 1 SCC
20

8. Inayat Ali & ors.. Vs St. of Telangana, CRLA
No. 1569 of 2022

(Delivered by Hon'ble Rahul Chaturvedi, J.)

[1] Heard Sri Manish Tiwari, learned
Senior Counsel assisted by Sri Ausim Luthra
and Sri Manu Srivastava, learned counsels
for the applicant, Sri Hari Om Rai and Sri
Hardev Prajapati, learned counsel for the
private opposite party, learned A.G.A. for
the State of U.P. at length and perused the
records.

Since, the pleadings have been
exchanged between the parties and the
matter is ripe for final submissions. Keeping
in view that the applicant/revisionist are the
one and the same person Dr. Ifraq @
Mohammad Ifraq Husain and the gravamen
of both the proceedings are almost akin and
similar and therefore, for the sake of brevity
and convenience, the Court after clubbing
both the proceedings, is proposing to
proceed and decide by the common
judgment.

[2] In the application under section
482 Cr.P.C filed on 24.02.2023, the
applicant is Dr. Ifraq @ Mohammad Ifraq
Husain who has made Smt. Shazia Parveen
his wife, Km. Aleena and her sister Km.
Adeeba through her legal guardian Smt.
Shazia Parveen as opposite party nos.2, 3
and 4 respectively with the following
prayer :-

"Application under section 482
Cr.P.C.
and
quash
the
order
dated
20.01.2023
passed
by
learned
IIIrd
Additional Sessions Judge, Kasganj, in
Criminal Appeal No.19 of 2022 (Dr. Ifraq
Husan Vs. Smt. Shazia Parveen), Police
station-Sector
Ganjdundwara,
DistrictKasganj under section 125 Cr.P.C.
It is further necessary and expedient in the
interest of justice that this Hon'ble Court
may graciously be pleased to order for a
fresh DNA test of the applicant and the
respondent no.3 and 4 during the pendency
of the present Criminal Misc. Application
Under Section 482 Cr.P.C. before this
Hon'ble Court."

[3] On 20.02.2023, yet another
Criminal Revision was filed invoking the
power under section 397/401 Cr.P.C. by the
same Dr. Ifraq @ Mohammad Ifraq Husain
making aforesaid persons who are his wife
and two daughters as respondent nos. 2 to 4
assailing the legality and validity of the
orders dated 07.04.2022 passed by learned
Gram Nyayalay, Patiali, Kasganj while
deciding the case no.100 of 2019 under
section 125 Cr.P.C. so preferred by Smt.
Shazia Parveen against her husband Dr.
Ifraq @ Mohammad Ifraq Husain claiming
maintenance by the impugned order, learned
Magistrate has awarded desired amount as
maintenance to his wife and daughters and
when the same was challenged in Criminal
Appeal No.19 of 2022 (Dr. Ifraq @
Mohammad Ifraq Husain Vs. Smt. Shazia
Parveen), learned IIIrd, Additional Sessions
Judge dismissed the criminal revision
preferred by the revisionist Dr. Ifraq @
Mohammad Ifraq Husain vide impugned
judgment and order dated 30.01.2023.
5 All. Dr. Irfaq @ Muhammad Irfaq Husain Vs. State of U.P. & Anr.
881
The prayer sought is as follows :-

"That in view of the aforesaid facts
and circumstances, of the present case, it is
expedient in the interest of justice that this
Hon'ble Court may graciously be pleased to
allow this Criminal Revision and set-aside
the order dated 07.04.2022, passed by
learned Gram Nyayalaya, Patiali, Kasganj
in Case No.100 of 2019(Smt. Shazia
Parveen and others Vs. Dr. Ifraq) under
section 125 Cr.P.C. and also the order dated
30.1.2023 passed by III Additional Sessions
Judge, Kasganj in Criminal Appeal No.19 of
2022 Police station-Dundwara, DistrictKasganj.
It is further necessary and expedient
in the interest of justice that this Hon'ble
Court may graciously be pleased to stay the
effect and operation of order dated
07.04.2022 passed by learned Gram
Nyayalaya, Patiali, Kasganj in case no.100
of 2019 (Smt. Shazia Parveen and others Vs.
Dr. Ifraq) under section 125 Cr.P.C. and also
the order dated 30.1.2023 passed by III
Additional Sessions Judge, Kasganj in
Criminal Appeal No.19 of 2022 Police
station-Dundwara, District-Kasganj during
the pendency of the present Criminal
Revision before this Hon'ble Court."

[4] Before dissecting the facts and
grounds of the case, it is essential and
imperative to introduce the parties and the
background of the case so as to understand
the controversy involved and its better
appreciation.

The
applicant
Dr.
Ifraq
@
Mohammad Ifraq Husain is the husband of
Smt. Shazia Parveen (opposite party no.2)
and father of opposite party nos.3 and 4
who are the minor daughters of the
aforesaid couple during subsistence of
their marriage.
The marriage of Dr. Ifraq @
Mohammad Ifraq Husain and Smt. Shazia
Parveen was solemnized as per Muslim rites
and customs on 12.11.2013. This married
couple and their inter se relationship lasted
up to the year 2017 and thereafter, she
started residing with her parents on account
of maltreatment received by her from her
own husband and in-laws, as a result of
scanty dowry.

[5] On 09.07.2019, she insisted to
be maintained by her husband and therefore,
the proceeding under section 125 Cr.P.C.
was initiated against her husband claiming
maintenance for herself and for her two
minor daughters. After institution of the
proceedings,
learned
trial
Judge
on
04.12.2019, have passed an ex-parte
judgment and order against her husband
fixing
certain
amount
of
monthly
maintenance. It is asserted by the husband
that this ex parte order was passed behind
his back and without having any knowledge.
Left with no other option, an
Application under section 126(2) Cr.P.C.
was moved by the applicant, that as soon as
he came to know about the proceedings, he
moved a recall application and the said
application was eventually allowed at the
cost of Rs.5,000/- in favour of the private
respondents.

[6] While aforesaid proceeding was
pending before Gram Nyayalaya, Patiali,
Kasganj, father-Dr. Ifraq @ Mohammad
Ifraq Husain surreptitiously and without any
knowledge or consent has taken the samples
of her daughter to ascertain the paternity of
those minor girls and has obtained a DNA
report from DNA Labs India Genetic
Research
and
Development
Centre,
Hyderabad on 15.10.2018. This indeed was
shocking
that
the
applicant,
taking
advantage of his profession as a doctor, has
882 INDIAN LAW REPORTS ALLAHABAD SERIES
managed to extract sample of two minor
daughters aged about 5 years and 7 years
respectively. The underline idea for this
exercise was to anyhow avoid maintenance
of two young girls, if it is found that
applicant is not their father. The said report
was filed by means of an Application
No.43B dated 17.12.2021 and the learned
Magistrate vide order dated 02.03.2022 have
passed an order, directing that the said DNA
Report from DNA Labs India Genetic
Research
and
Development
Centre,
Hyderabad be kept on record and the
objections were invited from the wife.

[7] Despite of the fact that the
sufficient material were placed before
learned Gram Nyayalaya, Patiali, Kasganj,
learned Magistrate on 07.04.2022 pleased to
allow the amount of maintenance to all the
three namely Smt. Shazia Parveen from the
date of filing of application for Rs.4,000/-
and from the date of order for Rs.10,000,
Km. Aleena from the date of application for
Rs.3,000/- and from the date of order for
Rs.5,000/-, Km. Adeeba from the date of
application for Rs.3,000/- and from the date
of order for Rs.5,000/-.

[8] Dissatisfied by the aforesaid
judgment, Dr. Ifraq @ Mohammad Ifraq
Husain has preferred Criminal Appeal
No.19 of 2022 before the Sessions Judge
Court No.3, Kasganj against judgment
and order dated 07.04.2022 and also an
application 21B moved under section
391 Cr.P.C. during the pendency of the
same seeking a DNA analysis of his
minor daughters, opposite party nos.3
and 4.

[9] The said appeal was rejected
by the learned Sessions Judge by a well
reasoned order on 30.01.2023 and the
prayer for collecting the additional
evidence in the shape of ordering the
DNA profiling of her daughters.

[10] The aforesaid are the bare
skeleton undisputed facts and thus, the
Court is proposing to decide by the
common judgment after clubbing both
the proceedings.

[11] As it is evident from the
name, the applicant/revisionist-Dr. Ifraq
@ Mohammad Ifraq Husain is a medical
practitioner. From the pleadings, it has
come out that the applicant Dr. Ifraq @
Mohammad Ifraq Husain got married
with opposite party no.2 on 12.11.2013.
It is alleged that after the marriage, she
was
subjected
to
dowry
related
harassment and there was demand of
Rs.5 lacs and motorcycle from the
opposite party no.2 or her family
members and on this score, she was
constant target of humiliation, innuendos
and sometimes, she was subjected to
physical assault upon her by her husband
and in-laws. Even though, she has given
birth to two baby daughters on the
different occasions. Giving birth to two
daughters have escalated the miseries
upon her, as such eventually in the year
2017, she was driven out/left from her
marital place.

[12] As mentioned above, she has
initiated the proceeding under section 125
Cr.P.C on 14.12.2019 and the same was exparte allowed in favour of opposite party
no.2. However, the said order was recalled
in exercise of power under section 126(2)
Cr.P.C. imposing cost of Rs.5,000/-.

[13] On 18.01.2021, husband has
filed detailed objection stating therein that
the opposite party no.2 has left the marital
home because the applicant was unable to
5 All. Dr. Irfaq @ Muhammad Irfaq Husain Vs. State of U.P. & Anr.
883
fulfil her exorbitant demands and her
demand for separate living. It is alleged that
the applicant has divorced her as she was
involved in extra-marital relationship with a
boy Saleem. Not only this, applicant-Dr.
Ifraq @ Mohammad Ifraq Husain is not a
biological father of one of the girl relying
upon the so-called DNA report dated
15.10.2018.

[14] After getting convinced, the
applicant-Dr. Ifraq @ Mohammad Ifraq
Husain using his medical skills, in a
clandestine fashion, has taken out the
sample from his minor daughter Km. Aleena
claiming that he is not his biological father
and sent the said sample for the DNA
profiling. The sample were sent to DNA
LABS
India
Genetic
Research
and
Development
Centre,
Hyderabad
on
15.10.2018 and the said result of the DNA
profiling is as follows :-

"The alleged father is excluded as
the biological father of the tested child.
Based on testing results obtained from
analysis of the DNA loci listed, the
probability of Paternity is 0." meaning
thereby the applicant is not a biological
father of the aforesaid girl.

The applicant wanted to bring on
record the DNA report and other co-related
documents in the proceedings. Accordingly,
the aforesaid application was taken on
record. However, time was granted to
opposite party no.2 to file its rebuttal by the
next date fixed.

[15] The said DNA report from
Hyderabad Lab was filed by the applicant
before the learned Magistrate and vide order
dated 02.03.2022, the said report was taken
on record by the order of the concerned
Magistrate by the application no.43B.
Thus, the entire tussle is to direct the
opposite party no.2, 3 and 4 to give its
samples by the order of the Court so that the
paternity of the girl may be established.

Section 391 of Cr.P.C. and its
applicability

The Court has an occasion to peruse
the provisions of Section 391 of Cr.P.C.
which reads thus :-
"391. Appellate Court may take
further evidence or direct it to be taken.-
(1) In dealing with any appeal under this
Chapter, the Appellate Court, if it thinks
additional evidence to be necessary, shall
record its reasons and may either take such
evidence itself, or direct it to be taken by a
Magistrate, or when the Appellate Court is a
High Court, by a Court of Session or a
Magistrate.
(2) When the additional evidence is
taken by the Court of Session or the
Magistrate, it or he shall certify such
evidence to the Appellate Court, and such
Court shall thereupon proceed to dispose of
the appeal.
(3) The accused or his pleader shall
have the right to be present when the
additional evidence is taken.
(4) The taking of evidence under
this section shall be subject to the provisions
of Chapter XXIII, as if it were an inquiry."

[16] On a plain reading of the aforesaid
provision, it empowers the Appellate Court
to take further evidence or direct it to be
taken. The catch expression of this provision
is ".....the Appellate Court, if it thinks
additional evidence to be necessary, shall
record its reasons and ........" .

While elaborating the aforesaid
expression, it is evident that it is the
complete and undiluted judicial discretion of
884 INDIAN LAW REPORTS ALLAHABAD SERIES
the Appellate Court that such additional
evidence is necessary. It is not, either of the
contesting parties may pre-empt or suggest
that the additional evidence is required in
this case. As it is evident from the expression
itself that in the event, the Appellate Court
so feels or decides to have additional
evidence, he shall record its reason for doing
so and then only ask for the additional
evidence. In the judgment of Rambhau and
another Vs. State of Maharashtra, reported
in 2001 4 SCC 759, it is said that there is
available a very wide discretion in the matter
of obtaining additional evidence in terms of
Section 391 Cr.P.C. But this additional
evidence cannot and ought not to be
received in such a way so as to cause any
prejudice to the accused. It is not a disguise
for a retrial or to change the nature of the
case against the accused. The order must not
ordinarily be made if the prosecution has
had a fair opportunity and has not availed of
it. However, it is the concept of justice
which ought to prevail and in the event, the
same dictates exercise of power as conferred
by the Code, there ought not to be any
hesitation in that regard. Section 391 Cr.P.C.
was introduced in the statute-Book for the
purpose of making it available to the Court,
not to fill up any gap in the prosecution case
but to oversee that the concept of justice
does not suffer." Needless to mention here
that it is exclusive domain of Appellate
Court to have or not to have such additional
evidence. None of the parties before him can
compel the Appellate Court to give
directions in this regard.

[17] Any insistence by the appellant
would be construed that he is stepping in the
shoes of the Appellate Court or usurping the
powers of the Appellate Court to give a
direction to the Appellate Court so that a DNA
profiling of two young daughters may be done
as the applicant is under some unfounded
impression ? that he is not their biological
father. The Appellate Court should not have
exercised this power to clear off the perception
of appellant exercising his powers under
section 391 Cr.P.C. This is not a true import of
Section 391 Cr.P.C. as it is evident from the
aforesaid observation by the Hon'ble Apex
Court in the case of Rambhau's case (supra)
and the learned Magistrate and learned
Appellate Court has rightly rejected the
application under section 391 Cr.P.C.

As mentioned above, when the matter
was pending before the Gram Nyayalaya,
Patiali, Kasganj, the applicant using his
profession, has managed to take out a blood
samples of his own blood and blood of his
daughter Aleena and sent it to DNA Labs India
as it is evident from its report, that by the order
of Dr.Ifraq, this DNA report entitling
"Personal Piece of Mind Paternity Test" was
conducted to establish as to whether the
applicant is biological father of a girl or not
and after holding the so-called test by the DNA
Labs India, has given its report "The allged
father is excluded as the biological father of
the tested child. Based on testing results
obtained from analysis of the DNA loci listed,
the probability of Paternity is 0".

Since, the said report was conducted
by the order of applicant-Dr. Ifraq @
Mohammad Ifraq Husain and not at the
behest of any judicial order and therefore,
no importance could be attached to the
said application and that is the reason
behind requesting the Appellate Court to
exercise its power under section 391
Cr.P.C. to hold a DNA profiling of his
daughter-Aleena.

[18] Per contra, Sri Hari Om Rai,
learned counsel for the respondent has
drawn the attention of the Court to Section
112 of Evidence Act, which reads thus :-
5 All. Dr. Irfaq @ Muhammad Irfaq Husain Vs. State of U.P. & Anr.
885
112.
Birth
during
marriage,
conclusive proof of legitimacy.
"The fact that any person was born
during the continuance of a valid marriage
between his mother and any man, or within
two hundred and eighty days after its
dissolution,
the
mother
remaining
unmarried, shall be conclusive proof that he
is the legitimate son of that man, unless it
can be shown that the parties to the
marriage had no access to each other at any
time when he could have been begotten."
The aforesaid provision of Evidence
Act is in two parts. (i) a person was born
during the continuation of valid marriage
between his mother and any man or within
280 days after its dissolution, and the mother
is remained unmarried, then it shall be a
conclusive proof that he is a legitimate son
of that man ;(ii) Unless it can be shown that
the parties to their marriage has no access to
each other at any time when he could have
been begotten.
The Section is based on the
principles that when a particular relationship
such as marriage, is shown to exist, then its
continuation must prima facie be presumed
under the section of fact that any person was
born :-
(I) During the continuation of valid
marriage between the mother and any man
OR
(ii)
Within
280
days
of
its
dissolution
and
the
mother
remain
unmarried, shall be conclusive proof that he
is legitimate son of that man unless the
parties had no access to each other at any
time when he could have begotten.
The evidence that a child is born
during wedlock is sufficient to establish its
legitimacy and shift the burden of proof to
the parties seeking to establish the contrary.
The presumption under this Section
is conclusive presumption of law which can
be displaced only by the proof of non access
between the parties to the marriage at a time
when according to the ordinary course of
nature, husband could have been the father
of the child. This expression conclusive
proof " is used in the section means proof as
lay down under section 4 of the Indian
Evidence Act. Access and non-access
connote existence and non-existence of
opportunities for marital intercourse.
It is the principle of law that
"Odiosa et inhonesta non sunt in lege prae
sumenda"
(Nothing
odious
or
dishonourable will be presumed by the law).
So the law presumes against vice and
immorality.
One
of
the
strongest
illustrations of the principle, is the
presumption in favour of legitimacy of
children in a civilized society. But, where
illegitimacy seems as common as marriage
and legitimacy, a presumption of legitimacy
cannot be drawn and legitimacy or
illegitimacy will have to be proved like any
other fact in issue."
The provision of Section 112 of
Indian Evidence Act is based on principles.
Peter est quem nuptiae demonstrant(father
is one whom marriage indicates). When
child was born during valid marriage, it is a
conclusive proof of its legitimacy unless
strong and cogent evidence is led to prove
otherwise.

[19] By dissecting the aforesaid
provision of Section 112 of Evidence Act, it
reveals that :

(a) During the continuation of a
valid marriage between his mother and any
man
;
(b) Within 280 days after its
dissolution, the mother remain unmarried ;
(c) Unless it can be shown that the
parties to the marriage had no access to each
other
886 INDIAN LAW REPORTS ALLAHABAD SERIES
[20] The presumption as to
paternity in this section only arises in
connection with the offspring of the married
couple. The section applies to legitimacy of
children of a married person only, On the
birth
of
child during
marriage,
the
presumption of legitimacy is conclusive no
matter how soon the birth occurs after the
marriage.

The section does not lay down the
maximum period of gestation and therefore,
does not bar the proof of legitimacy of a
child born more than 280 days after
dissolution of marriage, the affect of section
being nearly that no presumption in favour
of legitimacy is raised and question must be
decided simply upon the evidence for and
against legitimacy. A person born within 280
days after the death of his father, is
presumably legitimate son when a person
claims under this section, to be a son of
deceased person, he must prove that he was
born within 280 days after the death of his
father.

Under this section, child born in a
wedlock, should be treated as a child of the
person who was, at the time of his birth, the
husband of mother unless it is shown that he
had no access to the mother at the time of its
conception. Quite irrespective of the
question whether the mother was married
woman or not at the time of conception,
where the wife was pregnant on the date of
marriage and the husband had no access to
the wife before the marriage, there was no
question of calling aid the presumption
under Section 112 of Evidence Act. By
"having no access" is meant having no
opportunity of sexual intercourse and in
order
to
displace
the
conclusive
presumption, it must be shown that no such
opportunity occurred down to a point of time
so near to the birth as to render paternity
impossible. To rebut the legal presumption
under this Section, it is for those, who
dispute the paternity of a child, to prove nonaccess of the husband to his wife during the
period when with respect to the date of its
birth, it must, in ordinary course of nature,
have been begotten. Mere fact that husband
and wife were residing separately in the
close proximity of the distances, is not a
sufficient proof of non-access.

[21] The Supreme Court observed
that the presumption which under section
112 of Evidence Act contemplates, is
conclusive presumption of law which can be
displaced only by the proof that the
particular fact mentioned in the Section,
namely, non-access between the parties to
the marriage at the time when according to
ordinary course of nature, the husband could
have been the father of the child. Non-access
can be established not merely by positive or
the direct evidence, it can be proved
undoubtedly like any other fact by evidence,
either direct or circumstantial which is
relevant to the issue, though as presumption
of legitimacy is highly favoured by the law,
it is necessary that proof of non-access is
clear and satisfactory. The non-access would
include incapability of access on account of
impotency, want of virility or masculinity
because of immature age or other physical
incompetency.

Sri Manish Tiwary, learned counsel
for the applicant while buttressing his
contention, has relied upon the following
citations in his favour :-

(i) Nand Lal Wasudeo Badwaik Vs.
Lata Nandlal Badwaik and another
reported in (2014) 2 SCC 576 ;

(ii) Deepanwita Roy Vs. Ronobroto
Roy reported in (2015) 1 SCC 365;
5 All. Dr. Irfaq @ Muhammad Irfaq Husain Vs. State of U.P. & Anr.
887
(iii) Priyanka Janardhan Patil Vs.
Janardhan Raghunath Patil reported in
2022 SCC Online SC 1047 ;

[22] Let us examine the aforesaid
cases one by one. In paragraph no.14, in
Nand Lal Wasudeo Badwaik case, the
Hon'ble Apex Court, in no uncertain terms,
have clearly spelled out that a child born
during the continuation of a valid marriage,
shall be conclusive proof that a child is a
legitimate child of a man to whom the lady
giving birth as married. The provision
makes legitimacy of a child to be a
conclusive proof if the condition aforesaid
are satisfied. It can be denied only if it is
shown that the parties to the marriage had no
access to each other at any time when the
child could have begotten. Paragraph no.16,
17 and 18 of the aforesaid judgment
deserves special by the Court, which is
quoted hereinbelow :-

16. As stated earlier, the DNA test is
an accurate test and on that basis it is clear
that the appellant is not the biological father
of the girl child. However, at the same time,
the condition precedent for invocation of
Section 112 of the Evidence Act has been
established and no finding with regard to the
plea of the husband that he had no access to
his wife at the time when the child could
have been begotten has been recorded.
Admittedly, the child has been born during
the continuance of a valid marriage.
Therefore, the provisions of Section 112 of
the Evidence Act conclusively prove that
Respondent 2 is the daughter of the
appellant. At the same time, the DNA test
reports, based on scientific analysis, in no
uncertain terms suggest that the appellant is
not
the
biological
father.
In
such
circumstances, which would give way to the
other is a complex question posed before us.
17. We may remember that Section
112 of the Evidence Act was enacted at a
time
when
the
modern
scientific
advancement and DNA test were not even in
contemplation of the legislature. The result
of DNA test is said to be scientifically
accurate. Although Section 112 raises a
presumption
of
conclusive
proof
on
satisfaction of the conditions enumerated
therein but the same is rebuttable. The
presumption may afford legitimate means of
arriving at an affirmative legal conclusion.
While the truth or fact is known, in our
opinion, there is no need or room for any
presumption. Where there is evidence to the
contrary, the presumption is rebuttable and
must yield to proof. The interest of justice is
best served by ascertaining the truth and the
court should be furnished with the best
available science and may not be left to bank
upon presumptions, unless science has no
answer to the facts in issue. In our opinion,
when there is a conflict between a
conclusive proof envisaged under law and a
proof based on scientific advancement
accepted by the world community to be
correct, the latter must prevail over the
former.
18.
We
must
understand
the
distinction between a legal fiction and the
presumption of a fact. Legal fiction assumes
existence of a fact which may not really
exist. However, a presumption of a fact
depends
on
satisfaction
of
certain
circumstances.
Those
circumstances
logically would lead to the fact sought to be
presumed. Section 112 of the Evidence Act
does not create a legal fiction but provides
for presumption.

[23] Adopting the aforesaid ratio of
the aforesaid case of Nand Lal Wasudeo
Badwaik,
the
case
of
Deepanwita
Roy's(supra) was also decided. While
888 INDIAN LAW REPORTS ALLAHABAD SERIES
deciding the case of Deepanwita Roy, the
Court has adopted the reasoning in toto.

The Court has occasion to peruse
the facts of the aforesaid case in which Lata
Nand Lal Badwaik has filed an application
under
section
125
Cr.P.C.
claiming
maintenance for herself and his daughter
inter alia alleging that she started living with
her husband from 20.06.1996 and stayed
with him for about two years and during that
period, she got pregnant from the applicant.
She was sent for delivery at her parent's
place where she has given birth to a baby
girl. However, this claim of the girl was
resisted by her husband and also denied that
the baby girl does not belong to him.
According to her husband, he has got no
physical relationship with his wife. The
Court while allowing the maintenance at the
rate of Rs.900/- to the wife and Rs.500/- to
the daughter on 10.01.2011, passed an order
and under the directions of the Court, the
DNA test was carried out in which, it has
come out that the appellant Nand Lal
Badwaik is excluded to be the biological
father of Neha Nand Lal Badwaik, baby girl.
The Court has given direction to conduct her
DNA test.

However,
it
is
evident
that
comparing the facts of the present case, is
entirely different from the aforesaid case as
there is no order by any of the learned court
below to go for any DNA test as there is no
pleading
of
non-access
by
the
husband/applicant with her wife Ms. Shazia.

[24] In the present case, as
mentioned above, the prayer is to quash the
order dated 20.01.2023 passed by IIIrd
Additional Sessions Judge, Kasganj while
deciding the Criminal Appeal No.19 of 2022
Dr. Ifraq @ Mohammad Ifraq Husain Vs.
Smt. Shazia Parveen, Police Section-Sector
Ganjdundwara, Kaganj, under section 125
Cr.P.C. and also order for fresh DNA test of
the applicant, respondent nos.2 to 4 in the
present case.

The details of the present case has
already been spelled out in the earlier part of
the judgment which needs no repetition.
However, it is clear that the marriage
between the applicant and respondent no.2
was solemnized as per Muslim rites on
12.11.2013. On account of scanty dowry,
she was subjected to cruel and inhuman
treatment. Resultantly, she was compelled to
leave the company of her husband in the
year 2017. During the subsistence of the
marriage, she gave birth to two baby girls
namely Km. Aleena and Km. Adeeba. In
paragraph no.12 of the petition, it has been
mentioned that opposite party no.2 was
leading adulterous life as counter allegation
upon the chastity of his wife, and, therefore,
in a most clandestine fashion without taking
consent of opposite party no.2, Ms. Shazia
Parveen or her daughter Km. Aleena, taken
the relevant sample and sent for DNA Labs
India Genetic Research and Development
Centre, Hydrabad to check his paternity,
while taking the advantage of his profession,
and obtained the certificate that the
applicant is not a biological father of
opposite party no.3, Km. Aleena.

There is no order of the Court to
conduct such test. The interesting feature of
this case is that in the entire pleading of the
case, there is not a whisper that the applicant
has got no access to his wife during the
subsistence of the marriage i.e. 12.11.2013
to 2017, the date of her desertion from the
company of her husband. A bald allegation
has been pasted upon his wife that she was
leading
adulterous
life,
is
of
no
consequence. The requirement of the law is
otherwise. It is the applicant, who has to
5 All. Dr. Irfaq @ Muhammad Irfaq Husain Vs. State of U.P. & Anr.
889
establish that during the subsistence of
marriage, he has got no access to his wife
which has resulted to the birth of two baby
girls. After she diserted the company of her
husband, one fine morning, a brain wave
attached the applicant and he has managed
to take the samples in a surreptitious way
without any information or consent and sent
the aforesaid sample to the Centre. The
report from the aforesaid DNA Centre is the
base on which he wants to shun away from
his
responsibility
of
her
father. As
mentioned above, there is not a whisper in
the entire pleadings that the applicant has
got no access to his wife during this period.

[25] In a celebrated judgment in the
case of Gautam Kundu vs. State of West
Bengal AIR 1993 2295, Hon'ble the Apex
Court
has
boiles
down
following
conditions :-

(1) that courts in India cannot order
blood test as matter of course;
(2) wherever applications are made
for such prayers in order to have roving
inquiry, the prayer for blood test cannot be
entertained.
(3) There must be a strong
primafacie case in that the husband must
establish non-access in order to dispel the
presumption arising under section 112 of the
Evidence Act.
(4)
The
court
must
carefully
examine as to what would be the
consequence of ordering the blood test;
whether it will have the effect of branding a
child as a bastard and the mother as an
unchaste woman.
(5) No one can be compelled to give
sample of blood for analysis.
Examined in the light of the above,
we find no difficulty in upholding the
impugned order of the High Court,
confirming the order of the Addl. Chief
Judicial Magistrate, Alipore in rejecting the
application for blood test. We find the
purpose of the application is nothing more
than to avoid payment of maintenance,
without making any ground whatever to
have recourse to the test. Accordingly
Criminal Appeal will stand dismissed. Cr,
M.P.No. 2224/93 in S.L.P.(cr No. 2648/92
filed by Respondent No. 2 will stand
allowed. She is permitted to withdraw the
amount without furnishing any Security.

[26] Weighing the facts of the
present case, with the aforesaid guidelines,
it goes without saying that the base of the
entire case, the said DNA report obtained by
the applicant is nothing but a trash and
cannot be relied upon. The DNA test cannot
be ordered as a matter of course. There must
be strong prima facie case that husband must
establish non-access with his wife in order
to dispel the presumption under section 112
of the Evidence Act and the Court has to
weigh on an iron balance, far reaching
implications and consequence ordering the
blood test/DNA test, whether it will affect of
branding a child as a bastard and the mother
as unchaste woman. No one can be
compelled to give sample of the blood for
analysis. On these parameters, the applicant
has failed to establish or even plead in his
pleadings that he has got no access to his
wife during subsistence of marriage from
12.11.2013 to the year 2017. Mere making a
baseless and bald allegation that his wife is
an unchaste woman, leading adulterous life,
would have no consequence and would be
construed that this crude attempt on his part,
is nothing more than to avoid payment of
maintenance to the kids.

[27] In the recent case of Aparna
Ajinkya Firodia Vs. Ajinkya Arun Firodia
reported in 2023 SCC Online SC 161,
Hon'ble the Apex Court has examined this
890 INDIAN LAW REPORTS ALLAHABAD SERIES
tricky legal question from the point of view
of a young boy or girl and its adverse impact
on the psyche of that boy, whose legitimacy
is under challenge by none other than his
own father. In this small world, where every
information is one's finger tip, the child has
to quest to find out his real father. He also
has to cope up with confused state of mind
whether a person to whom he considers his
father is shunning away and anyhow wants
to get rid of this relationship.

It is undeniable that the finding as to
illegitimacy, if revealed in the DNA test,
would at very least adversely effect the
child's tender mind. It can cause not only
confusion in the mind of the child but quest
to find out who the real father is and a mixed
feeling towards to a person who may have
nurtured the child but is not a biological
father. Not knowing who is one's father,
would create a mental trauma in that child.
One can imagine if after coming to know the
identity of the biological father, what greater
trauma and stress would impact on a young'
s mind proceeding which are in realm have
a real impact on not only child but also on
the relationship between the mother and the
child itself, which is otherwise sublime. It
has been said that the parent of a child may
have illegitimate relationship but a child
borne out of such relationship cannot carry a
stamp of illegitimacy on his forehead. As
such, a child has no role to play in its birth.
An innocent child cannot be traumatized and
subjected to extreme stress and tension in
order to discover its paternity and that is
why Section 112 of the Evidence Act speaks
about the conclusive presumption regarding
the paternity of the child subjected to
rebuttal as provided in the second part of the
aforesaid Section. A child should not be lost
in its search of paternity. The precious
childhood and youth cannot be lost in quest
to know one's paternity. Therefore, the
wholesome object of Section 112 of
Evidence Act which confers the legitimacy
of the child born during the subsistence of
valid marriage subjected to the same being
rebutted by strong and cogent evidence and
perceived. Children of today are citizens and
the future of a nation. The confidence and
happiness of a child who is showered with
love and affection by both parents is totally
distinct from that of a child who has no
parents or has lost a parent and still worse,
is that of a child whose paternity is in
question without there being any cogent
reason for the same. The plight of a child
whose paternity and thus his legitimacy, is
questioned would sink into a vortex of
confusion which can be confounded if
Courts are not cautious and responsible
enough to exercise discretion in a most
judicious and cautious manner. following
paragraph are relevant for consideration of
the present case which are as follows :-