PARVATHAMMA Vs. SRI. K.B. JAYADEVAPPA

JUDGEMENT

(1.) THIS appeal is filed against the Judgment and Decree dated 18.12.1996 passed in R.A. No. 34 of 1996 on the file of the Additional Civil Judge, Shimoga arising out of the Judgment and Decree dated 20.12.1995 in O.S. No. 376 of 1987 on the file of the Additional Munsiff, Shimoga.

(2.) THE Appellant is the Plaintiff filed a suit for declaration that she is the legally wedded wife of the Defendant -Respondent and for a permanent injunction against the Defendant from entering into second marriage. The Plaintiff contends that out of the wed -lock and co -habitation with the Defendant, she has given birth to one Kumari Dakshayinamma. It is said that the Defendant and his parents started ill -treating the Plaintiff forcing her to undergo abortion. When the Plaintiff refused, she was driven out of the house in the first week of July 1987. According to the Plaintiff, the marriage was solemnised on 28.4.1986 in Basavanna Temple at Belalakatte Village of Shimoga Taluk. The Defendant in the written statement denied the relationship of Plaintiff as his wife and denied his marriage with her and also denies his paternity to the child. Three witnesses P Ws. 2 to 4 are examined apart from the Plaintiff. The Defendant has examined himself as DW. 2 and D Ws. 3 to 6 are examined as witnesses in support of the Defendant's case. The trial Court based on the pleadings and the oral evidence held that the Plaintiff is the legally wedded wife of the Defendant and decreed the suit granting injunction against the Defendant not to marry another lady. The First Appellate Court has reversed the finding, set aside the Judgment and Decree and dismissed the suit of the Plaintiff holding that the Plaintiff has failed to prove her marriage with the Defendant. As a result, the present appeal is filed.

(3.) IN the evidence before the trial Court, the Defendant had agreed that he was prepared to offer himself for D.N.A. Finger -printing test. An application was filed before the trial Court seeking DNA finger -printing test to confirm the paternity of the child. The application was allowed. However, in Revision No. 818 of 1993 this Court based on the ruling of Supreme Court reported in Surta Singh Vs. Pritam Singh, AIR 1983 P and H 114 to set aside the order of reference to DNA finger -printing test. A fresh application came to be filed before this Court, the Respondent has filed objection.