Dubagunta Subrahmanyam, J.
1. This revision is filed against the order dated 14.11.2000 in Criminal Revision Petition No. 33 of 2000 on the file of Sessions Judge, Vizianagaram, setting aside the order of the maintenance dated 26.6.2000 in M.C. No. 1 of 1996 on the file of Judicial Magistrate of I Class, Chipurupalli.
2. The petitioner is a minor representated by his mother Kanthamma. His mother filed a petition under Section 125, Cr.P.C. in M.C. No. 1 of 1996, seeking maintenance at the rate of Rs. 500/- per month to her and another sum of Rs. 500/- per month to the petitioner herein, on the ground that respondent is the father of the petitioner herein. The mother Kanthamma is legally married wife of Y. Khurmaiah @ Khurma Rao. According to her she gave divorce to her, husband Khurma Rao on 1st December, 1991 under divorce document Ex. P-1. It is her version that while she was living in her parents' house, she developed contact with the respondent, who promised to marry her, and he had sexual intercourse with her and as a result, she became pregnant. It is also her version that when she was five months pregnant, she asked the respondent to marry her and he refused to marry her. According to the revision petitioner's mother the revision petitioner was born to her through the respondent. Even according to the revision petitioner's mother, there is no marriage whatsoever between her and the respondent. Even according to her, the revision petitioner is an illegitimate child of the respondent. The respondent clearly pleaded in his counter that he has no illicit intimacy with the mother of the revision petitioner. He also denied that the revision petitioner is his illegitimate son. He de denied the divorce between the mother and her husband Khurma Rao. Both parties adduced oral and documentary evidence before the Court. The learned Magistrate held that as there is no marriage between the respondent and the mother of the petitioner, she is not entitled for maintenance from the respondent. However, holding that the revision petitioner is the illegitimate child of the respondent, the Magistrate granted maintenance at the rate of Rs. 200/- per month from the date of petition, payable by the respondent herein. The revision petitioner's mother did not question the order of the Magistrate, refusing to grant maintenance to her. The respondent preferred a revision petition before the Sessions Judge, Vizianagram. The Sessions Judge, Vizianagram, held that there is no proof to show that the petitioner is the illegitimate son of the respondent. The learned Sessions Judge allowed the revision petition and set aside the order passed by the Magistrate. Aggrieved thereby, this revision.
3. Regarding the plea of divorce between Kanthamma and her husband Khurma Rao, except producing to so-called divorce document Ex. P-1, no other evidence is adduced by Kanthamma to prove that there is a divorce between her and her husband Khurma Rao and it is a valid divorce. It is already noticed that the respondent disputed the factum of divorce between Kanthamma (P,W. 1) and her husband Khurma Rao. The divorce is said to have taken place in the presence of a number of persons, who attested the document Ex. P-1. P. W. 1 did not examine any of those persons to prove the divorce between her and her husband Khurma Rao. None of the persons, who are associated with Ex. P-1 are examined as witnesses. P.W. 2 and P.W. 3 are not the persons at the time of divorce between P.W. 1 and her husband Khurma Rao. Therefore, it is clear that P.W. 1 failed to prove that there is any divorce between her and her husband Khurma Rao.
4. It is necessary to point out that even according to P.W. 1 there is no marriage whatsoever between her and the respondent. Therefore, the revision petitioner is not born out of any wedlock between P.W 1 and the respondent. Therefore, the burden is heavy on the mother Kanthamma to prove that revision petitioner is born to her through the respondent alone. In my considered opinion, evidence adduced by P.W. 1 in this regard is quiet unsatisfactory and cannot be relied upon. To prove that the revision petitioner is born to her through the respondent, P.W. 1 has to prove that there was no access to her former husband to meet her. She must also prove that at the time of conception, except the respondent no other person had any access to her. These two aspects are not at all proved by P.W. 1. According to her whenever an opportunity comes, she was meeting the respondent in resident house belonging to the brother of the respondent. It is not the residence of respondent. It is in her evidence that the said brother of the respondent was living with his wife and grown up children. It is also in her evidence that the said house consists of only 11/2 rooms. I do not think that in such a residential house not belonging to the respondent, P.W. 1 would be having opportunity to cohabit with respondent and become pregnant and subsequently give birth to the revision petitioner.
5. The learned Counsel for the revision petitioner contended that the Trial Magistrate passed an order directing the parties to undergo D.N.A. test and the respondent did not undergo the said D.N.A. test and, therefore, an adverse inference to be drawn against the respondent. Before considering the said aspect, it is necessary to point out that the same Magistrate directed all the parties to undergo blood-grouping test, all the persons including the respondent underwent the said test, the Doctor concerned opined that it is not possible to ascertain whether the revision petitioner herein was torn through the respondent or not. Thereafter, D.N.A. test was ordered and the respondent did not undergo the test. Just because the respondent did not undergo D.N.A. test in the circumstances of the present case, no adverse inference can be drawn against his conduct inasmuch as he had already undergone blood-grouping test ordered by the Court concerned.
6. The learned Counsel for the revision petitioner relied upon three decisions. The first decision is a decision of the Supreme Court in Dwarika Prasad Satpathy v. Bidyut Prava Dixit, : 2000CriLJ1 . In this case Their Lordships held that after not disputing the paternity of the child and after accepting the fact that the marriage ceremony was performed, though not legally perfect as contended, it would hardly lie in the month (mouth?) of the appellant to contend in a proceeding under Section 125, Cr.P.C. that there was no valid marriage as essential rites were not performed at the time of the said marriage and the provision under Section 125, Cr.P.C. is not to be utilized for defeating the rights conferred by the Legislature on the destitute women, children or parents who are victims of the social environment. In the present case admittedly there is no marriage whatsoever between respondent and P.W. 1. Non-access to her husband is not established by P.W. 1. Similarly exclusive access to the respondent alone is also not established by P.W. 1.
7. The second decision relied upon is a decision of the Supreme Court reported in Goutam Kundu v. State of West Bengal, : 1993CriLJ3233 . This decision is of no assistance to the revision petitioner. In this case Their Lordships held that Section 112, Evidence Act requires the party disputing the paternity to prove non-access in order to dispel the presumption. It is rebuttable presumption of law under Section 113, Evidence Act that a child born during, the lawful wedlock is legitimate, and that access occurred between the parents. In the present case divorce between P.W. I and her husband Khurma Rao is not established. There was scope for access between P.W. I and her husband Khurma Rao. The non-access in the circumstances of the present case is to be proved by P.W. 1. The Supreme Court held that the Court must carefully examine as to what would be the consequence of ordering the blood test whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman and no one can be compelled to give sample of blood for analysis.
8. The third decision relied upon is a judgment of this Court reported in Anil Kumar v. T. Kondala Rao, II (1999) DMC 683=1999(1) ALT (Cri.) 44 (A.P.). In this case the D.N.A. analysis report certified that the 1st respondent is biological father of petitioner and petitioner's mother is his biological mother. This decision does not deal with any presumption to be drawn if a person refuses to undergo D.N.A. test. In this regard it is necessary to point out that the Apex Court in a decision reported in Amarjit Kaur v. Harbhajan Singh, 2002(8) SCALE (sic) held that the law in the matter governing the consideration and passing any order in respect of a claim for DNA test has sufficiently been laid down by said Court and if a party to a proceeding cannot be compelled against his/her wish to undergo any such test defaulting by a Court, while directing a party to appear for a DNA test.
9. The date of birth of the revision petitioner is not proved in the present case. There is no plea regarding the date of birth. Similarly there is no proof regarding the actual date of birth. It is therefore not possible to hold that the revision petitioner was born after a lapse of more than 9 or 10 months after his mother P.W. I allegedly gave divorce to her husband Khurma Rao.
10. P.W. 2 and P.W. 3 are examined to prove that in a mediation the respondent admitted that the revision petitioner was born to him. P.W. 2 deposed that in that mediation respondent denied any relationship between him and P.W. 1. P.W. 3 deposed that respondent agreed about his relationship with P.W. 1. As evidence of P.W. 2 and P.W. 3 is contradictory in nature and as there is no other evidence, it is to be held that respondent did not admit that he was having illicit intimacy with P.W. 1 at any time. It is in the evidence of P.W. 2 that as respondent denied any relationship between him and P.W. 1, the elders advised P.W. I to approach the police. It appears that P.W. I gave a complaint to the police under Section 376 of the Indian Penal Code against the respondent. There is no dispute that the Sessions Court acquitted the respondent of the offence under Section 376 of the Indian Penal Code.
11. The learned Counsel for the revision petitioner contended that P.W. I married her husband Khurma Rao before she attained the age of puberty and subsequently the divorce was given. It is to be stated that in her evidence P.W. I admitted that after she attained her age of puberty, her husband used to visit her in her parents house. It is an important fact to reject the contention that her husband had no access to her after she attained her age of puberty. In view of these circumstances, it is clear that there are no reasons to set aside the impugned order passed by the Sessions Judge.
12. In the result this revision case is dismissed.