T NAGARAJ Vs. SUMATHI

JUDGEMENT

(1.) THE petitioner has come up with the present civil revision petition challenging the order of the learned Subordinate Judge, Perambalur dated 16.8.2010 made in I.A.No.17 of 2010 in O.S.No.114 of 2008.

(2.) THE petitioner herein is the husband of the respondent. He has filed the above referred OP against the respondent for dissolution of the marriage which has taken place between them on 12.7.2001. THE case of the petitioner is that the respondent herself has admitted that one Muniappan, the second respondent in the said OP had intimacy with her and through him, she gave birth to a female child. THE said statement made by the petitioner in the OP was denied by the respondent.

(3.) SECTION 112 of the Indian Evidence Act clearly spells out that birth of a child during the marriage would conclusively prove the legitimacy of the child. However, presumption can be displaced only by strong preponderance of evidence and not by a mere balance of probabilities. In the case on hand, the case of the petitioner is solely on the basis that the second child was not born to him. In such circumstances, directing DNA test on the petitioner as well as the child will definitely establish the case of the petitioner or the falsity of his claim. The said aspect has gone out of sight in the mind of the learned trial Judge.