RIYAZAHMED ABDULSATTAR NAGARCHI Vs. SHIPA AND ORS.

JUDGEMENT

(1.) The petitioner who is the plaintiff in the Trial Court had filed the above writ petition for the writ of certiorari to quash the order dated 21.11.2015 passed by the Family Court, Belgaum rejecting his application under Order 26 Rule 10(A) read with Section 151 of the Code of Civil Procedure and Section 45 of the Indian Evidence Act for DNA test of the plaintiff and defendant No.2 to find out the paternity of the 1st defendant.

(2.) The petitioner filed suit for declaration declaring that the 1st defendant Shipa is not the daughter of the plaintiff since she is not born to Shehnaz/2nd defendant out of the wedlock with the plaintiff contending that the plaintiff and 2nd defendant are husband and wife and their marriage took place on 20.05.2007 at Gokak falls, as per customary rites and rituals of the Muslim community. Soon after the marriage, the 2nd defendant/wife joined him and lived together happily for less than two weeks and the wife left her matrimonial home without any rhyme or reason and that too without informing the plaintiff. She did not returned back and there was no communication from the defendant No.2/wife on account of which the plaintiff along with the elders and his father and members of the Jamaat tried their level best, but the same was unfruitful. The plaintiff and his wife lived separately and have no access to each other from last week of June 2007 up to the date of filing of the petition. The wife filed criminal Misc. No.330/2010 before the Family Court stating that the child Shipa was born to her on 09.10.2009 and it is also contended that the plaintiff was never told or communicated by the said Shehanaz or the family members regarding the alleged birth of the female child and he learnt the same for the first time on receipt of the notice for maintenance petition. The plaintiff further contended that the plaintiff and his wife had no access to each other from June 2007, the question of the child being born out of the wedlock of the plaintiff and the defendant No.2/wife does not arise. Therefore, the 1st defendant is not at all the daughter of the plaintiff. In fact the plaintiff denied the relationship of himself and the defendant No.2 and the same was not accepted by the Family Court while granting maintenance of Rs.750/- per month from 02.08.2010 till the date of her remarriage and the revision petition filed by him before this Court also came to be dismissed confirming the order passed by the Family Court.

(3.) The petitioner further contended that he came to know that his wife Shehnaz is having illicit relationship with another man and 1st respondent is born out of illicit relationship. The wife has filed petition for maintenance for herself and the child etc. Therefore, he sought for declaration as prayed for.