M SHAKUNTALA Vs. M SHIVARAJ

JUDGEMENT

(1.) This is a petition filed to review the Judgment and decree of this Court dated 2-9-86 passed in the above appeal and to allow the same.

(2.) The facts of the case are that the marriage of the petitioner with the respondent took place on 28-4-1974 at the house of her husband in Chinthalabasthi, Hyderabad. Thereafter they lived together happily for some time and a female child was born. Later on some differences arose. Therefore the husbaad filed OP No 114/1977 on the file of the IV Addl Judge City Civil Courts, Hyderabad, for a decree of divorce on the ground of desertion by the wife. The lower court after considering the entire material on record allowed the OP and granted a decree of divorce. Against that judgment the wife filed the appeal CMA No. 385 of 1981. The appeal came up for hearing before a Division Bench of this Court consisting of K Amareswari J and one of us (Bhaskar Rao J). When the appeal came up for hearing this Court directed the learned counsel to produce the parties in the Court with a view to bring in reconciliation if possible. Both the parties were not present and the counsel for both parties represented that they were not able to contact their parties. Therefore, this Court considering the material on record, dismissed the appeal filed by the wife.

(3.) Thereafter, the wife filed the present review petition stating that subsequent to passing of the decree for divorce by the lower court there was re-union between the petitioner and the respondent and they lived together as hus band and wife and a female child was also born to them on 20-10-1984, by name M Mahalakshmi in Vijayameri Hospital, Hyderabad. When the appeal came up for hearing the respondent-husband advised the petitioner-wife that it is not necessary to be present before the Court as they have reconciled. So believing the advice of her husband, she did not attend the court and she did not evince any interest in the appeal. Therefore this court dismissed the appeal without her contesting the same. It is also stated that during the said period of re-union between the petitioner and the respondent a female child was also born to them on 20-10-84 named as Mabalaxmi. These allegations were disputed by the counsel for the husband. Therefore this court called for a finding from the trial court and both parties were permitted to file affidavits and adduce evidence in the lower court. In pursuance of the order of this Court calling for a finding both parties appeared before the Court below and filed affidavits. The wife examined herself as RW 1 and also examined another witness as RW 2. The husband also appeared and examined himself as PW1. The wife filed 1A No 2787/89 in the lower court for appointment of the Director or such other Officer of the Centre for Cellular and Molecular Biology at Hyderabad for conducting blood test of the husband Shivraj and the disputed child Mahalaxmi and also of Smt Shakuntala herself to determine the paternity of the second child Mahalaxmi. She also filed IA No 2786/89 for a further direction that the husband should bear the expenses of that test as she is not in a position to bear the said expenditure. The lower court, after hearing both sides allowed bath I As by its common order dated 16-10-1989. Against the said common order the husband filed CRP Nos 446/90 and 445/90 in this court, but both these CRPs were dismissed in limine on 23-2-90. Thereafter the husband did not comply with the order dated 16-10-1989 of the lower court in IA Nos 2787/89 and 2786/ 89 and did not undergo the test. Thereafter he filed another 1A No 1314/90 to review the order in the above l As but the said review petition was dismissed by the lower court on 31-8-1990 on the ground that the order dated 16-10-1989 in IA Nos 2786/89 and 2787/89 stood merged in the order of the High Court passed in CRP Nos 445/90 and 446/90 The estimated expenditure for the test ordered ,in IA No 2787/89 would work out to Rs. 3,500/- and this test is popularly known as DNR Finger Prints test and it is well known throughout the world now that this test is an accurate one and that the results are found to be quite correct to decide the paternity of child The lower court after taking into consideration the evidence on record and the circumstances viz there was reunion between the petitioner-wife and the respondent-husband in the year 1983 after the CMA was admitted against the order of the trial court and interim suspension was granted that they lived together and the second child Mahalaxmi was born and that as the husband refused to undergo scientific test Called the DNR Finger Prints test and that he has got means to undergo the test as he is working as an employee in the Mint drawing salary; has drawn an adverse inference that if the petitioner would have undergone the test the paternity of the child would have been declared and for that reason he refused to undergo the test and that ultimately the lower court sent a report that there was reunion between the petitioner-wife and the respondent-husband and the second female child Mahalaxmi was born to the petitioner through the respondent as they lived together as wife and husband during the period of reunion. We have heard both the counsel.