Judicial Magistrates dealing with petitions seeking maintenance amount for minor children under Section 125 of the Code of Criminal Procedure can order a DNA test if the person from whom the amount is claimed disputes the fact of having fathered the children and if there is no conclusive proof for establishing paternity, the Madras High Court Bench here has ruled.
Disposing of a criminal revision case, Justice S. Nagamuthu said that magistrates should generally not allow litigants to drag maintenance proceedings.
However, the judicial officers could order DNA tests in extraordinary cases, such as the present one, where a legal presumption could not be drawn under Section 112 of the Indian Evidence Act with respect to disputed question of paternity.
The judge pointed out that the revision petitioner, a married man and a Hindu by faith, had claimed that he was maintaining an illicit relationship with a woman who had approached a Judicial Magistrate in Sivakasi in Virudhunagar district last year seeking monthly maintenance of Rs. 3,500 for each of her two children. Contesting the case, he had claimed he was the father of only one of her two children.
The petitioner also contended that the woman was already married to another man and that she had not submitted any document to prove that she had obtained divorce from him.
Nevertheless, the Magistrate rejected his plea for ordering a DNA test on the ground that such tests could not be ordered in a proceeding under Section 125 of the Cr.P.C., and hence the present revision.
Pointing out that even illegitimate children were entitled to maintenance, Mr. Justice Nagamuthu said that the fundamental question to be decided in such cases was to determine whether the person, from whom maintenance was claimed for minor children, was their biological father or not.
Courts would have no choice but to order a DNA test when there was no conclusive proof with respect to paternity, he added.
He directed the revision petitioner to deposit Rs. 15,000 for meeting the expenses the poor woman might have to incur for taking her child to the hospital for the DNA test and directed the Magistrate to dispose of the maintenance petition after the receipt of the test results.
“Magistrates should generally not allow litigants to drag maintenance proceedings”
