Abhai Kumar, J. - (1.) Heard learned counsel for the appellant, learned A.G.A for the State and perused the record.
(2.) This revision has been filed by the revisionist - Kamlesh Yadav husband of Smt. Sheela Devi against State of U.P and others in Case no. 98 of 2006 (Smt. Sheela Devi v. Kamlesh Yadav) pending before the Court of Principal Judge, Family Court, Varanasi, against the order dated 08.05.2013, whereby prayer of revisionist was dismissed by the Principal Judge, Family Court, Varanasi for conducting D.N.A test of his wife. The record of the present revision reflects that allegations made against the wife by the revisionist that the son of the wife that Umang, who is said to be son of Kamlesh Yadav - husband, is not his son, she had begotten by somebody else, is living in parents house. The husband made an application for getting D.N.A test held of the child, which was opposed by wife. The trial court taken the benefit of Section 112 of Indian Evidence Act, held that presumption of legitimacy of child is there in case spouses are living together, but this can be rebutted by cogent evidence. It is also found by the Judge Family Court that no cogent evidence has been produced by the revisionist that he has divorced the wife - opposite party and she has begotten child after 280 days of that divorce. Hence the trial court rejected the application made by the revisionist - husband for D.N.A test of the child.
(3.) Learned counsel for the revisionist relied upon the judgement passed by Hon'ble Apex Court in the Case of Ramkanya Bai v. Bharatram [2010 (1) CRC 54] . On the basis of that judgement the learned counsel for the applicant argued that application for D.N.A test of the child was moved at earliest stage and that should have been allowed by the Judge, Family Court. The relevant portion of the judgement of Hon'ble Apex Curt is mentioned in para 9 of the judgement, which reads as follows:- On a perusal of the application for grant of an order for DNA test of the child, it would also be evident that there was no allegation made by the husband/respondent that as a consequence of illicit relationship with some third person, the child was born to the wife/appellant. Apart from that, it is an admitted position that during the pendency of the divorce proceedings in trial Court, neither such prayer for performing DNA test to find out the paternity of the child was ever made by the husband/respondent nor any allegation in the plaint was made by him in his pleading. Therefore, it was not open to the High Court at the appellate stage to direct the DNA test to be performed on the child of the wife/appellant. It is also well settled that the presumption of legitimacy is a presumption of law. When a child is born out of a wedlock, there is a presumption in favour of his legitimacy and presumption of legitimacy largely depends on the presumed fact that the parties to a marriage have necessary access to each other when a divorce petition is filed and specially, when the husband/respondent did not assert that the son of the wife/appellant was a consequence of illicit relationship with some third person. The High Court, in the impugned order, has also observed that the son of the wife/appellant has begotten from the husband/respondent, which cannot be disputed at this stage on the basis of mere desire of the husband/respondent to deny such paternity of the child. Although in this case the Hon'ble Apex Court has set aside the impugned order and also rejected the application for D.N.A. test, that was moved by the wife - appellant, but it is argued by learned counsel for the applicant that in the said judgement the Hon'ble Apex Court has clearly asserted that D.N.A test could be a proper method for asserting the paternity of spouse.;