RAMESHBHAI POCHABHAI MARAND Vs. SATIBEN

JUDGEMENT

(1.) The petitioner has filed present petition under Article 226 of the Constitution of India read with Section 13 of the Hindu Marriage Act, 1955 with a prayer to quash and set side order dated 11.12.2018 passed below Exh.14 in Hindu Marriage Petition No.56 of 2017 by learned Principal Senior Civil Judge, Gandhidham-Kutch.

(2.) The petitioner-original plaintiff is a labourer and marriage of the petitioner is solemnized about 6 years before the filing of application for dissolution of marriage. The petitioner has filed application for dissolution of marriage on the ground of adultery of his wife. The petitioner filed application Exh.14 for conducting DNA test to prove the paternity of the child on the ground that there was no access to his wife after solemnization of marriage. It is stated that one child was born in the year 2010 and another in 2013. It is stated that learned Family Court Judge has not considered any grounds averred in the application while deciding the application for DNA test and passed the impugned order rejecting Exh.14 application against which present petition is preferred.

(3.) Learned counsel, Mr.Mehul Mehta, for the petitioner has submitted that Hindu Marriage Petition No.56 of 2017 was filed for dissolution of marriage between the appellant and the respondent, and in such petition, the appellant has preferred an application for DNA test of the children and the wife, which application has been rejected by the trial Court vide order dated 11.12.2018. He has contended that the trial Court has committed serious error of facts and law in rejecting the application. He has also contended that when there is an allegation of non-cohabitation of the appellant with the respondent, the children born are a result of illicit relationship of the wife with another person. By relying upon the decision in the case of Dipanwita Roy v. Ronobroto Roy AIR 2015 SC 418, he has submitted that identical facts are there and, therefore, in view of the said decision this Court should also direct the respondent to undergo DNA test. It is contended that earlier wife has shown readiness for DNA test but now she is declining the same. He has also relied upon the following decisions.