IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD MONDAY, THE TWENTY FIFTH (25TH) DAY OF JULY, TWO THOUSAND AND ELEVEN Present: HON’BLE SRI JUSTICE G.V.SEETHAPATHY Criminal Revision Case No.138 of 2011 Between: Smt Bikkavolu Laxmi … Petitioner And: State rep. by Public Prosecutor, High Court of A.P., Hyderabad & another … Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY Criminal Revision Case No.138 of 2011 JUDGMENT: This revision case is directed against the order dated 15.11.2010 in Crl.M.P.No.4387 of 2010 in MC No.9 of 2008 on the file of the Additional Judicial First Class Magistrate, Yellamanchili, wherein the said application filed by the 2nd respondent herein under section 45 of the Indian Evidence Act seeking a direction to the parties to undergo DNA test to determine the paternity of the children, was allowed. 2. Heard both sides. Perused the record. 3. The first petitioner herein filed MC No.9 of 2008 under Section 125 Cr.P.C. claiming maintenance of Rs.5000/- per month to herself and Rs.1,000/- each to the petitioners 2 and 3. According to the first petitioner, her marriage with the 2nd respondent took place in the year 1965 and out of the lawful wedlock, petitioners 2 and 3 were born and that since 2006 when the 2nd respondent transferred to Yeleswaram Depot of RTC, he stopped coming to the petitioners and neglected to maintain them. The petitioners further pleaded that the 2nd respondent is working as driver in APSRTC and drawing salary of more than Rs.10,000/- per month. The 2nd respondent filed counter in the maintenance case. 4. The 2nd respondent herein filed Crl.M.P.No.4387 of 2010 seeking direction to the parties to undergo DNA test on the ground that the first petitioner is not his wife and the petitioners 2 and 3 are not his children. According to the 2nd respondent, one Bikkavolu Muralidevi is his wife and through her, he begot two sons Jogarao and Pradeep, who are now aged 24 and 25 years respectively. He further alleged that the first petitioner married one Jorigala Apparao. The petitioners herein filed counter in the MP, opposing the application, but without raising any specific objections for undergoing DNA test. 5. Learned counsel for the petitioners would mainly contend that the petitioners have adduced oral evidence through PWs.2 to 5, who deposed that the first petitioner herein is the wife of 2nd respondent and in the reply notice, 2nd respondent admitted his marriage with the first petitioner and he has raised false plea, denying the marriage only to avoid payment of maintenance. 6. As seen from the copy of the reply notice got issued by the 2nd respondent herein on 21.04.2008 in reply to the petitioners notice dated 09.04.2008, the 2nd respondent admitted his marriage with the first petitioner in 1965. It is further stated in the said reply notice that at that time both were minors, the 2nd respondent was aged 11 years and first petitioner was aged 8 years and the marriage might have performed at the instance of the elders. He further alleged that after he attained majority, he expressed his dislike towards first petitioner and that the marriage was not consummated and hence, petitioners 2 and 3 were not born to him. In the said reply notice, 2nd respondent has further alleged that even otherwise the said marriage was not valid under law and the caste elders dissolved the same as per the caste custom and thereafter, first petitioner herein was married to one J. Apparao and through him, she gave birth to the petitioners 2 and 3 and the 2nd respondent herein married one Muralidevi in 1984 and begot two sons Jogarao and Pradeep. The 2nd respondent therefore contends that as the marriage was dissolved about 35 years back, he need not pay any maintenance to the first petitioner. 7. In view of the categorical admission in the reply notice about the factum of marriage that has taken place between the first petitioner and the 2nd respondent, the contention of the 2nd respondent that the first petitioner is not his wife, is prima-facie untenable. The further contention of the 2nd respondent that the marriage was dissolved by the caste elders as per the caste custom is a matter for consideration by the trial Court on due appreciation of the evidence that is being adduced during the enquiry, which is stated to be in progress. 8. Section 112 of the Evidence Act states that ‘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 legitimate son of that man, unless it can be shown that the parties to the marriage had no access to any time when he could have been begotten.’ 9. Thus the law presumes in favour of the marriage and the presumption can be rebutted if it is shown that the husband has severed all physical relationship with the wife and there was no access at the relevant time. The presumption of legitimacy is so favoured that the proof of non-access should be clear and satisfactory. Once the factum of marriage is admitted or proved, the burden of showing that the parties to the marriage had no access to each other when the child could have been born is on the person, who challenges its legitimacy. Simply because, the 2nd respondent has chosen to deny the marriage with the first petitioner and also birth of petitioners 2 and 3 in the maintenance proceedings, the petitioners cannot be compelled to undergo DNA test, especially when the 2nd respondent has admitted the factum of marriage in the reply notice, which admission prima-facie leads to presumption in favour of legitimacy of birth of the petitioners 2 and 3 till the same is rebutted by the 2nd respondent. 10. The various contentions raised by the 2nd respondent as to the alleged dissolution of the marriage by way of customary divorce and the alleged remarriage of the first petitioner, are all matters to be considered on evidence and cannot be gone in to in the present revision case, especially, when the enquiry is in progress before the trial Court. The impugned order does not disclose any valid or justifiable reasons for giving the direction as prayed for except observing that ‘as the 2nd respondent herein denied the paternity, DNA test may remove the misunderstandings between the parties and bring them to terms’. The impugned order does not deal with the admission of marriage contained in the reply notice nor refer to the legal implications of subjecting the parties to the DNA test in the light of the presumption contained in Section 112 of the Evidence Act. In the circumstances, it is held that the impugned order is not sustainable and the same is accordingly set aside. 11. In the result, the criminal revision case is allowed. __________________ G.V.SEETHAPATHY, J Date: 25.07.2011 bss