- (1.) Heard learned Counsel for the revisionist and learned Counsel for the caveators/respondents and perused the record. The instant revision has been preferred against the order dated 27.11.2012 whereby the applications 46-C and 48-C of respondents-plaintiffs seeking permission to file papers and praying for D.N.A., test respectively have been allowed. In Original Suit No. 740 of 2008 by learned Additional District judge, Court No. 3, Hardoi. It has been submitted by learned Counsel for the revisionist that the respondents filed Original Suit No. 740 of 2008 for maintenance against the revisionist claiming that respondent No. 1 is legally wedded wife of the revisionist while respondent No. 2 is their daughter. It has been contended in the plaint that the alleged marriage between the revisionist and respondent No. 1 had taken place about 40 years ago and respondent No. 2 was born out of this wedlock. It is also stated in the plaint that the respondents were turned out of the house by the revisionist nearly 27 years ago and the revisionist is residing with a lady Uma as his keep. The suit was contested by the revisionist in which he denied his alleged marriage with respondent No. 1 and stated that respondent No. 2 is not his daughter. He also categorically stated that Smt. Uma is his wedded wife who was married with him and he has three children from Smt. Uma. The eldest child is a daughter while the other two are sons. All of them have been married. Evidence was recorded and after the evidence 46-C application seeking permission to file papers and another application C-48 for D.N.A. test were moved and vide the impugned order the said two applications have been wrongly and arbitrarily allowed by the learned Additional District Judge. Further submission is that an application under section 125, Cr.P.C., has also been moved by the respondents in the Court of Judicial Magistrate in which an interim order was passed awarding interim maintenance against the revisionist which was challenged under section 482, Cr.P.C., by the revisionist and in the order dated 13.4.2011 another Bench of this Court has found prima facie that it was established by the revisionist herein on the basis of the record produced, that Uma Devi is the legally wedded wife of the revisionist.
(2.) In this view, it was ordered that the impugned order shall not be imposed till the final decision of the Court.
(3.) Learned Counsel has also submitted that in the case of Rajni Aggarwal v. Sushma Aggarwal, 2010 111 RevDec 464 Hon'ble Single Judge of this Court has held that dispute in respect of a valid marriage does not fall in the category where D.N.A., test is required. The relevant guidelines have been summarized in this judgment. In Banarasi Das v. Tiku Dutta, 2005 4 SCC 449, the Hon'ble Supreme Court has held that D.N.A., test should not be directed as a matter of routine and only in the deserving cases such a direction should be given. Lastly, the learned Counsel for the revisionist has submitted through the D.N.A. test, the fact that marriage between the revisionist and respondent No. 1 was solemnized cannot be proved. The Court below without due application of mind has allowed both the applications and the impugned orders are not sustainable.;