SELVARAJ Vs. DHATCHAYANI

JUDGEMENT

(1.) The order under challenge in the present Revision is rejection of the petitioner's application under Sec. 112 of the Indian Evidence Act rejecting his request to subject the child and the respondent herein to a DNA test. The main ground raised by the petitioner is that though he had clearly stated in his main petition for divorce filed on the ground of infidelity that the respondent herein had left the matrimonial house on 22/11/2005 and had reconciled with him on 16/4/2007 only, she had declared that she was pregnant and as such the impregnation was not through the petitioner herein. Hence, he alleges infidelity on the part of the respondent and thereby seeks for divorce by placing reliance on the date of desertion mentioned in the petition as well as the date in the police complaint lodged by the respondent herein dtd. 16/10/2009 wherein she had stated that she had left the matrimonial house after three months. The learned counsel would submit that the child born to the respondent herein was not through the petitioner and therefore, he had filed this application under Sec. 112 of Indian Evidence Act. In support of his contention, he also relied upon the judgement of the Hon'ble Apex Court reported in CDJ 2014 SC 005 (Nandlal Wasudeo Badwaik Vs. Lata Nandlal Badwaik and Another), CDJ 2014 SC 867 (Dipanwita Roy Vs. Ronobroto Roy) as well as a decision of this Court reported in CDJ 2011 MHC 5442 (T.Nagaraj Vs. Sumathi).

(2.) The trial Court had rejected the petitioner's application in I.A.No.20 of 2013 filed under Sec. 112 of Indian Evidence Act on the ground that the uncorroborated testimony of the petitioner alone is not sufficient to hold that the petitioner had no occasion to have intimacy with his wife during the relevant period of time. Observing so, the trial Court had rejected the petitioner's application. Before, analysing the applicability of the decision cited by the learned counsel for the petitioner, it would be appropriate to have a glance at Sec. 112 of the Indian Evidence Act 1872. The Sec. reads as follows:

(3.) In this background, it would be pertinent to look into the facts revealed to the trial Court by the petitioner herein. It is the case of the petitioner that his wife left the matrimonial house on 22/11/2005 and returned on 16/4/2007 between which time, she had became pregnant. These dates are reiterated in the affidavit filed in support of the application in I.A.No20 of 2013. The petitioner herein, in order to establish a prima facie case also relies upon police complaint dtd. 16/10/2009 alleged to have been given by the respondent herein and a copy of this petition is produced before this Court.