KULDEEP SINGH Vs. JOGINDER KAUR

JUDGEMENT

(1.) ORDER dismissing the revision petition for non- prosecution is recalled.

(2.) I have heard learned counsel for the petitioner on merits.

(3.) THERE is no merit in the submission. The order granting maintenance was passed on 9.11.1993. The event which took place prior to the said date cannot be put in issue in subsequent proceedings and that too after eight years. Under Section 112 of the Evidence Act, 1872, birth during marriage is conclusive proof of the legitimacy of the child. In Dwarka Prasad Satpathay v. Bidyut Prava Dixit, (1999)7 SCC 675 and Smt. Kamti Devi v. Poshi Ram, AIR 2001 SC 2226, it was held that the court has to keep in view the provisions of Section 112 of the Evidence Act and it is only the party who disputes the legitimacy of the child, has to undergo the DNA test and not the mother of the child who is not disputing the legitimacy of the child unless a clear prima facie case is made out. As held in Sharda v. Dharmapal, 2003(2) RCR(Civil) 795 (SC) and Goutam Kundu v. State of West Bengal and another, 1993(2) RCR(Crl.) 497 (SC) : (1993)3 SCC 418, in a given case, a direction for an appropriate test could be issued but such a direction could not be issued mechanically on a mere allegation of illegitimacy of child. Such a direction ought to be issued if it was in the interest of the child. It was also observed in Sharda (supra) that power to direct a medical test should be issued only if a prima facie case was independently made out.