1. Heard learned counsel for the applicant and learned Additional Government Advocate.
2. By means of this application the applicant has challenged the order dated 13-12-2007 passed by the Additional Principal Judge, Family Court, Kanpur Nagar whereby the learned Judge has rejected the application of the applicant for getting the DNA test of his son Ishan conducted. It was mentioned in the application that on 1-3-2004 the opposite party No. 1 had gone with her brother to her maternal home in Kanpur Nagar, then she became pregnant. She returned on 13-3-2004 at the residence of the husband and informed that she was pregnant and it did not appear to the applicant and the child was born from the union of the applicant with opposite party No. 1.
3. It is argued by the learned counsel for the applicant that opposite party No. 1 had herself shown willingness to get the DNA conducted, but she was pleading for interim maintenance. It is not disputed that the applicant and opposite party No. 1 were married.
4. Learned Trial Judge has observed that on the mere suspicion that child was not born from the union of the parties, the DNA test could not be conducted and for this purpose he has relied on the judgement of a learned Single Judge of this Court in Heera Singh v. State, 2005 ACJ 1486 : (2005 All LJ 2147), where the request for DNA test was rejected because there was no prima facie evidence that the proof of paternity was doubtful.
5. Learned counsel for the applicant submits that the said authority was distinguishable because in that case there was no concession by opposite party to get the DNA test conducted.
6. I need not go into this question as this case can be decided on different points.
7. Under Section 125(1)(b) of the Code of Criminal Procedure, the duties lies on a person having sufficient means to maintain his legitimate or illegitimate minor child, whether married or not, unable to maintain itself.
8. That being the position, it is not at all material whether the child was legitimate or illegitimate.
9. I also think that no useful purpose would be served in this proceeding under Section 125 Cr.P.C for trying to elicit a finding about the legitimacy or illegitimacy of the child.
10. Learned counsel for the applicant has referred to Section 125(4) of Cr.P.C for the proposition that if the wife is living in adultery, without any sufficient reason and refuses to live with her husband or if they are living separately by mutual consent, then she is not entitled to maintenance.
11. That provision is also wholly irrelevant for advancing the applicant's argument that DNA test should be conducted to determine the paternity of the child.
12. In this view of the matter, there is no force in this application. It is accordingly rejected.
13. Application rejected.