SHAFIQURRAHMANversusSTATE OF U.P. AND 2 OTHERS

       HIGH COURT OF JUDICATURE AT ALLAHABAD
           CRIMINAL REVISION No. - 3354 of 2024

Shafiqurrahman
                                                  …..Revisionist(s)

                             Versus

State of U.P. and 2 others
                                              …..Opposite Party(s)


Counsel for Revisionist(s)    : B.s. Pandey, Kartikey Pandey
Counsel for Opposite Party(s) : Akhilesh Kumar Mishra, G.A.


                               Judgment Reserved on 30.07.2026
                               Judgment Delivered on 18.09.2026
                               Judgment Uploaded on 18.09.2026
Court No. - 87

           HON'BLE LAKSHMI KANT SHUKLA, J.

1. Heard learned counsel appearing on behalf of revisionist,
learned AGA appearing on behalf of State-opposite party no. 1,
learned counsel appearing on behalf of opposite party no. 2 and
perused the record.

2. The instant criminal revision has been preferred by the
revisionist Sahffiqurrahman assailing the impugned judgment and
order dated 23.05.2024 passed by Principal Judge, Family Court,
Sant Kabir Nagar (hereinafter referred to as trial court) in Misc.
Case No. 292/11/2016 (under section 125 Cr.P.C., 1973) bearing
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CNR-UPSK020009952016 (Smt. Rubina Khatoon and Another Vs.
Shafiqurrahman) wherein the trial court allowed the maintenance
claim of opposite party no. 2 and 3 and ordered the revisionist to
pay Rs. 4,000/- per month to opposite party no. 2 and Rs. 2,000/-
per month to opposite party no. 3.

3. Feeling aggrieved from that order the instant criminal revision
has been filed on the grounds that the trial court has passed the
impugned order in arbitrary and cursory manner without application
of judicial mind. The impugned judgment is perverse to law as well
as facts and evidence available on record. The trial court has failed
to exercise its jurisdiction while rejecting the application of
revisionist for ascertaining the parentage of opposite party no. 3 in
circumstance there is solid dispute in this regard has been raised by
the revisionist before the trial court. The trial court did not persuade
to get evidence to ascertain the biological relationship between the
revisionist and opposite party no. 3 and a prayer for setting aside the
impugned judgment and order and allowing the criminal revision
has been made.
4. Learned counsel for revisionist submitted that the opposite party
no. 2 has claimed to be legally wedded wife of revisionist and
opposite party no. 3 to be daughter of revisionist the same has been
denied by the revisionist stating that there was only some talking
about the marriage of revisionist and opposite party no. 2 but when
revisionist and opposite party no. 2 met to each other for cross
observation the revisionist found that the opposite party no. 2's face
was badly burnt and for that reason the revisionist refused to marry
with opposite party no. 2. The opposite party no. 2 never married
with revisionist she never came to the residence of revisionist but
she dishonestly to get the maintenance filed the present case on
false and fabricated grounds and for that purpose she put a false
story of marriage and birth of opposite party no. 3 from her wedlock
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from the revisionist. To support his version the revisionist occupied
only oral evidence. Though the assertion of revisionist was negative
she could not establish the negative things easily. So far that he
moved an application for ascertaining the biological father of
opposite party no. 3 but the same was rejected by trial court,
accordingly the trial court refused to take evidence and similarly the
trial court refused to do justice.
5. Learned counsel for revisionist further submitted that there are
many other discrepancies and infirmity in the judgment but the trial
court did not consider the evidence available on record in proper
perspective. The trial court has placed reliance upon photocopy of
so called Nikahnam wherein as the name of Qazi Mr. Asgar Ali and
Hamid Ali have been mentioned but the opposite party no. 2 and all
her witnesses has told the name of Qazi as Muzaffar Maulana. So
the court cannot relied upon their statements that the marriage
solemnized before them. Similarly the opposite party no. 2 tells the
place of her marriage with revisionist her parental house while her
mother says that marriage of revisionist and opposite party no. 2
took place at the residence of Sohrat Pradhan while AW-3 her father
and AW-4 Mohd. Rafiq states that the Nikahnama of the parties
took place at Sohnan Madarsa. In such circumstance, whose
statement deserves to be relied upon is a miracle question. If there
any marriage ceremony between revisionist and opposite party no. 2
would have been taken place there must be uniformity in the
statement of AW-1, AW-2, AW-3, AW-4 and AW-5 regarding place
of marriage. If it is relied that the Nikahnama was prepared in
Sohanan Madarsa then again a miracle question arises that place of
marriage of revisionist and opposite party no. 2 is either the
residence of father of opposite party no. 2 or the residence of Sohrat
Pradhan and then whose Nikahnama got prepared in Sonahan
Madarsa meaning there the Nikahnama in Sohanan Madarasa does
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not relate to marriage of revisionist and opposite party no. 2 and
again a question arises that whether such marriage took place at
above noted alternative two places then whose marriage was
solemnized at Sonahana Madarsa. Similarly, if such marriage was
solemnized either at the residence of the father of opposite party no.
2 or at the residence of Sohrat Pradhan, then the question arises as
to where the Nikahnama was prepared. The absence of any clear
explanation in this regard creates a serious doubt regarding the
alleged marriage and, consequently, opposite party no. 2 herself has
created   a   doubtful   circumstance     surrounding    the    alleged
solemnization of the marriage.
6. Learned counsel for revisionist next submitted that it is admitted
to opposite party no. 2 and her witnesses AW-2, AW-3, AW-4 and
AW-5 that opposite party no. 2 was earlier married with another
person of village Thanwa then she was under compulsion to show
that when and where her Talaknama took place. In absence of Talak
with her earlier husband the second marriage of opposite party no. 2
cannot be held as legal one, therefore, the opposite party no. 2 is not
legally wedded wife of revisionist. Accordingly in absence of
marriage of revisionist and opposite party no. 2 there is no question
of birth of opposite party no. 3 from the wedlock of revisionist and
opposite party no. 2. It is thus contended that all above conspectus
remain unconsidered. Placing reliance upon the judgment of this
Court naming Jawahir Lal Jaiswal Vs. State of U.P. and another
passed in Criminal Revision No. 1428 of 2025 wherein paragraph
20 and 21 of that judgment relied the Apex Court finding in R.
Rajendran Vs. Kamar Nisha & Others reported in 2025 INSC 1304
and a judgment of Co-ordinate Bench of this Court in Sachin
Agarwal Vs. State of U.P. & Another passed in Application under
section 482 Cr.P.C. No. 28298 of 2021 decided on 30.05.2024.
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Paragraph 20 and 21 of Jawahir Lal Jaiswal (supra) case are
reproduced hereunder:-
    "20. This Court has not dispute the judgment of the Apex
    Court in the case of R. Rajendran VS. Kamar Nisha & Others
    reported in 2025 INSC 1304, wherein it has been opined by
    the Apex Court that D.N.A. testing should not be warranted if
    paternity is a collateral issue and not directly required to prove
    the primary allegations. Compelling DNA testing without such
    necessity amounts to unwarranted intrusion violating privacy
    and bodily autonomy. In paragraph no. 29 of the said case the
    Apex Court has framed certain guidelines for direction qua
    D.N.A. testing.

    21. A Coordinate Bench of this Court in the case of Sachin
    Agarwal Vs. State of U.P. & Another passed in Application
    U/S 482 Cr.P.C. No. 28298 of 2021 decided on 30th May,
    2024 in paragraph nos. 15 to 22 has opined as follows:

    "15. For the pursuit of justice, the court must employ all
    available means to uncover the truth and safeguard the rights
    of all individuals. The fundamental duty of the judiciary is to
    ensure that justice prevails by utilizing the most accurate and
    reliable methods, thus upholding the principles of fairness and
    equity for everyone involved. In the case of Nandlal Wasudeo
    Badwaik Vs. Lata Nandlal Badwaik & Anr (2014) 2 SCC 576,
    the Hon'ble Supreme Court in para 17, highlighted the
    reliability and scientific accuracy of DNA tests. The Court
    emphasized that while Section 112 of the Evidence Act creates
    a presumption of conclusive proof under certain conditions,
    this presumption is rebuttable. The Supreme Court asserted
    that in the interest of justice, the truth must be ascertained
    using the best available science, stating :- "In our opinion,
    when there is a conflict between a conclusive proof envisaged
    under law and a proof based on scientific advancement
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accepted by the world community to be correct, the latter must
prevail over the former."

16. In Jamshed Vs. State of U.P. [1976 Cri L J 1680 (All)],
wherein it was held that a blood sample can be compulsorily
extracted during a "medical examinaton"  conducted under
Section 53 Cr.P.C. At that time, the collection of blood
samples was not expressly contemplated in the said provision.
Nevertheless, the Court had ruled that the phrase "examination
of a person" should be read liberally so as to include an
examination of what is externally visible on a body as well as
the examination of an organ inside the body.

17. In light of the Hon'ble Supreme Court's decision in Aparna
Ajinkya Firodia v. Ajinkya Arun Firodia 2023 LiveLaw (SC)
122, this court recognizes the significance and sensitivity
surrounding the order for a DNA test. It is imperative to
acknowledge that while a DNA test is a powerful tool in
ascertaining biological relationships, its deployment must be
carefully weighed against potential misuse, the resultant social
stigma, and the psychological impact on the children. The
court must be cautious to avoid directing such tests in a routine
or casual manner, and instead should assess the necessity
based on the specific facts and circumstances of each case.

18. The Supreme Court in the matter of Selvi Vs. State of
Karnataka, 2010 (7) SCC 263 has categorically held that the
civil court can direct for conducting medical examination to
ascertain mental state of a party of a divorce proceeding.

19. Furthermore, the applicant's refusal to undergo the DNA
test, a procedure deemed essential for determining paternity
and safeguarding the child's welfare, could warrant an adverse
inference under Section 114, Illustration (h) of the Indian
Evidence Act. This provision allows the court to infer that
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evidence which could be and is not produced would, if
produced, be unfavorable to the person withholding it. In
Rohit Shekhar v. Narayan Dutt Tiwari 2011 SCC OnLine
Delhi 4076, the Delhi High Court affirmed this principle,
stating that refusal to undergo a DNA test in a paternity
dispute can lead to an adverse inference against the refusing
party. Such an inference, while not conclusive, strengthens the
court's ability to arrive at a just decision based on the available
evidence and the best interests of the children.

20. The psychological and social implications of unresolved
paternity   disputes    cannot       be   ignored.   A   definitive
determination of paternity through a DNA test can provide
closure and stability for all parties involved, particularly the
children. Ensuring that the children receive rightful
maintenance that not only fulfils their financial needs but also
affirms their social and legal status.

21. In the present case, it is essential to consider the broader
implications of directing a DNA test. The court is mindful of
the potential trauma and stigma that might affect the children,
should the paternity dispute be subjected to public scrutiny.
The principle that the best interests of the children should be
of the paramount consideration in all matters concerning them,
as enshrined in Article 3 of the Convention on the Rights of
the Children. The right to maintenance is not merely a legal
provision but is deeply rooted in fundamental human rights.
The Universal Declaration of Human Rights recognizes the
right to an adequate standard of living, which includes food,
clothing, housing, and medical care. In the context of children,
maintenance is indispensable for their survival, growth, and
development. Denying maintenance due to unresolved
paternity issues would be a violation of their basic human
rights. "
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7. On the basis of aforesaid, it is submitted that in such a situation
where strong question regarding biological father-ship is raised
showing the different story the DNA is the sole way to ascertain the
truth in the matter but the same was denied by the trial court.
8. Learned counsel for revisionist further submitted that in present
matter firstly the matter was decided by trial court i.e. Additional
Principal Judge, Family Court Sant Kabir Nagar on 10.01.2023
against that order a revision was filed by revisionist bearing
Criminal Revision No. 822 of 2023 Shaffiqurrahman Vs. State of
U.P. and two others which was decided on 17.08.2023 by this
Court, where this Court has observed 6th paragraph onward is as
under:-
    "Learned court below has placed reliance on photocopy of
    Nikahnama without seeking any explanation from the
    applicant regarding want of original copy. AW-3 has stated that
    Shafiqurrahman has laid the grooms party at the place of Izhar
    (father of Rubina) on 1.5.2014. Rubina resided at the place of
    opposite party for 2-3 months. The family of Shafiqurrahman
    is engaged in profession of 'Dholki' who play 'Dholak' usually
    in marriage parties and gets some reward. This was third
    marriage of Shafiqurrahman and second marriage of Rubina
    but he could not tell that when did separation from her
    previous husband. There is no evidence that any legal divorce
    of the applicant Rubina with her previous husband ever took
    place and without a valid divorce her alleged marriage with
    the revisionist cannot be considered as valid. Learned court
    below has decided the question that whether the applicant is
    married wife of the revisionist in summary manner in spite of
    specific denial of opposite party of the said marriage on the
    basis of photocopy of Nikahnama (marriage deed) without
    considering over all evidence on record on this point,
    therefore, learned court below has passed the impugned order
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    without considering the material on record in proper
    perspective and there is apparent legal error in impugned
    judgment and order and same cannot be sustained, therefore,
    revision deserves to be allowed and the impugned order passed
    by learned court below deserves to be set aside.
    Accordingly, revision stands allowed and impugned order
    passed    by    learned     court    below     is   set    aside.
    Court below is directed to decide the application under Section
    125 Cr.P.C. afresh after giving opportunity of hearing to both
    the parties and giving them opportunity to lead further
    documentary or oral evidence, if they apply for the same, and
    decide the application preferably within a period of three
    months from the date of production of a certified copy of this
    order in the light of observations made in present revision.
    Court below is further directed to give specific finding after
    considering the pleadings and evidence of parties and
    considering any further evidence if adduced by the parties
    regarding factum of marriage of the revisionist and respondent
    no. 2 and also give finding as to whether the marriage of
    respondent no. 2 with her previous husband was legally
    dissolved or not. However, in order to ensure sustinance of
    respondent no. 2 and her minor daughter during pending fresh
    decision on the matter, revisionist is directed to pay Rs. 3500/-
    to respondent no. 2 and Rs. 1500/- to respondent no. 3, as
    interim maintenance during pendency of maintenance case
    under Section 125 Cr.P.C. by the court below. "
9. In view of above conspectus, it is submitted that even while
passing the impugned judgment and order the trial court did not
follow the direction made by this Court and in above premise the
impugned judgment and order is not sustainable in law.
10. Learned counsel appearing on behalf of opposite party nos. 2
and 3 submitted that it is clear from evidence available on record
that the marriage of revisionist was solemnized with opposite party
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no. 2 and the Nikahnama in this regard was prepared whose copy is
part of record.

10. So far as dispute regarding Nikahnama is concerned, learned
counsel for revisionist has raised an objection regarding statement
of witness in respect of the Nikahnama that as per statement of
applicant-witnesses the Nikahanama was solemnized by Qazi
Muzaffar Hussain but according to Nikahnama occurred at page 77
of the paper book the Qazi who got solemnized the Nikah of parties
are Asgar Ali and Hamid Ali but it is a wrong statement and learned
counsel for revisionist filed its hindi translation in wrong way
which is at page 76 of the paper book. The true translation of such
Nikahnama regarding the names of Qazi at page 7 of written
statement and it is clear that the names of Qazi mentioned in such
Nikahnama as Muzaffar Hussain and Hamid Ali, therefore, the
Court cannot disbelieved the statement of AWs regarding the
solemnizing the Nikah of parties by Muzaffar Hussain as Qazi.

11. After giving consideration on page 7 & 8 of written statement
filed by opposite party nos. 2 and 3 and page 76 and 77 of the paper
book which transpires that learned counsel for revisionist has
mentioned a wrong fact before the Court regarding Qaziship of
Asgar Ali in the impugned matter. He further submitted that
Nikahnama is a genuine document which was never challenged by
the revisionist in any court of law or made any complaint against
opposite party no. 2 with the allegation that the forged Nikahnama
was filed in the present case but only to avoid the maintenance to
his wife and child the genuineness of the said Nikahnama has been
challenged by the revisionist in the present maintenance proceeding.
He further submitted that it is also pertinent that at the time of
marriage the revisionist has knowledge about the first marriage of
opposite party no. 2 but now only to avoid to pay maintenance to
his wife and daughter he is concocted the entire false and frivolous
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story alleging that he was never married with opposite party no. 2
and the Nikahnama is nothing but forged document. The Parivar
Register clearly shows that the same is nothing but details of the
parivar of the father of the revisionist and not the parivar of the
revisionist and in the said Parivar Register the name of earlier wife
of the revisionist and the present wife of the revisionist is also
missing. The opposite party no. 2 and the witnesses produced on her
behalf have clearly stated that the Nikah had taken place between
the revisionist and opposite party no. 2 and opposite party no. 3 was
born out of the wedlock between the revisionist and the opposite
party no. 2. It is further submitted that the opposite party no. 2 is a
illiterate and Pardanshin lady hence some discrepancies in her
statement would not demonstrate that Nikah was never solemnized
with the revisionist and opposite party no. 2 and the opposite party
no. 3 is not the daughter of the revisionist. It is further contended
that the trial court has not committed any error of law or fact. The
impugned order has been passed by the trial court after due
consideration of the material available on record. Learned counsel
further submits that the mother of a child is the only person who can
explain the actual paternity of the child. The Opposite party no. 2
has claimed that the girl child was born out of the wedlock between
the revisionist and opposite party no. 2, which has been denied by
the revisionist. In the aforesaid circumstances, in order to ascertain
the truth and determine the biological paternity of opposite party no.
3, a DNA test is necessary. Learned counsel for opposite party nos.
2 and 3 has also relied upon the law laid down by this Court in the
case of Jawahir Lal Jaiswal (supra) case in this regard.

12. Having heard the rival submissions and upon perusal of the
record, it is evident that the submission advanced by opposite party
nos. 2 and 3 with regard to the Nikahnama is clearly borne out from
the record, whereas the submission advanced by learned counsel for
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                                                 CRLR No. - 3354 of 2024

the revisionist in this regard is misleading one. But it is remarkable
that the said Nikahnama produced before the trial court is only a
photocopy, and the original Nikahnama could not be brought on
record. Though its contents have been supported by the witnesses
examined on behalf of opposite party nos. 2 and 3, it is assertion of
opposite party nos. 2 and 3, who have claimed maintenance, that the
Nikah between the revisionist and opposite party no. 2 had taken
place. Though there is some discrepancy in the statements of the
witnesses examined on behalf of opposite party nos. 2 and 3 with
regard to the place where the Nikah between the parties was
solemnized, which creates some doubt, but it is the sacred duty of
the court to secure the right of a child to get maintenance from his
or her biological parents, and the child cannot be put to suffer on
account of a dispute between the parents. In the present case, the
revisionist himself moved an application seeking a DNA test. On
the other hand, learned counsel appearing for opposite party nos. 2
and 3 has submitted that, in order to ascertain the true biological
paternity of opposite party no. 3, a DNA test is required meaning
thereby both the parties have expressed their willingness to have the
biological paternity of opposite party no. 3 be ascertained through a
DNA test. Both parties have expressed their positive approach even
at different stages. In view of the above, in the interest of justice,
this Court is of the considered view that, without ascertaining the
true biological paternity of opposite party no. 3 through a DNA test,
her right to maintenance cannot be secured in justified manner. It is
also remarkable that on one hand the right of a child to get
maintenance from his or her biological parent must be secured but
the Court is equally under an obligation to safeguard the rights of
the other party i.e. a person who is not the true biological father of a
child cannot be fastened with the liability to maintain a child born
to another person but the trial court passed the impugned order
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                            ignoring the material contradictions in the statements of the
                            witnesses examined on behalf of opposite party nos. 2 and 3
                            regarding the place of solemnization of the Nikah and the place
                            where the Nikahnama was prepared. In view of the aforesaid
                            contradictions, the evidence brought on record in support of the
                            alleged Nikah requires fresh consideration. Consequently, the
                            impugned judgment and order is liable to be set aside.

                            13. Accordingly, the impugned judgment and order is hereby set
                            aside. The matter is remitted to the learned trial court for fresh
                            adjudication in accordance with law, after affording adequate
                            opportunity to both the parties to adduce additional evidence,
                            especially regarding the DNA test for determination of the
                            biological paternity of opposite party no. 3, as both the parties have
                            expressed their willingness in this direction.

                            14. With the aforesaid direction the present criminal revision stands
                            disposed of.

                                                                        (Lakshmi Kant Shukla,J.)

                            September 18, 2026
                            Arti




Digitally signed by :-
ARTI SHARMA
High Court of Judicature at Allahabad