IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1047 of 2008 ARHULA DEVI Versus CHANDRADEO YADAV ----------- 3. 23.9.2008 Heard counsel for the petitioner and the counsel for the opposite party. In the opinion of this Court when the court below had refused the prayer of the petitioner for grant of maintenance under section 125 of the Code of Criminal Procedure (Cr.P.C.) only on the ground that the petitioner was living in adultery, such serious allegation required a concrete proof. In any event the oral evidence alone could not have been sufficient for proving such serious allegation. The boy about whom it is being claimed by the husband opposite party that he was borne out of the adulterous relationship of the petitioner being alive his D.N.A. test could have been one of such clinching proof. The revealing aspect in this case is that the petitioner also had four issues from the husband, opposite party out of whom three of them are still surviving and two of them being sons in fact are still living with the husband opposite 2 party. It would, therefore, be not impossible for the court to ascertain the truth of allegation of alleged adultery on the part of the petitioner. All that was therefore required to be done was that DNA test of two sons living with the husband opposite party and one son Tuntun Yadav living with the petitioner could have been directed to be held and if there was any variance to show in the such test report of all the three sons, the logical conclusion could have been that Tuntun Yadav was not borne out of the relationship between the petitioner and the husband opposite party. That having been not done this Court would not be in a position to sustain the impugned order and accordingly, the same is set aside with a direction to the court below to direct both the petitioner and the husband opposite party to produce their two sons living with the husband and one son living with the petitioner so that their DNA test could be conducted. On production of all these three persons they along with the petitioner and the opposite party will be sent to Bhagalpur 3 Medical College where their D.N.A. test will be conducted. If however there be no such facility for conducting D.N.A. test they would be sent to All India Institute of Medical Science, New Delhi or to any other specialized Government Centre conducting such D.N.A. test and upon receipt of such report, the court below would pass a fresh order in terms of Section 125 Cr.P.C. It is however made clear that the entire expenditure on the head of D.N.A. test of all the five persons i.e. the wife petitioner, the husband opposite party and the three sons including expenses on their journey and stay to such specialized centre will be borne by the husband opposite party who has brought the allegation of adultery against the wife petitioner. In this case the husband opposite party does not deposit the necessary cost for the same within a period of one months from today in the court below and/or does not extend necessary co- operation in this regard, the court below will proceed to pass a fresh order disposing of the application of the petitioner under Section-125 Cr.P.C. in accordance with law 4 in next three months. With the aforesaid observations and directions this application is allowed. (Mihir Kumar Jha,J.) Surendra/