M SHAKUNTALA Vs. M SHIVARAJ

JUDGEMENT

(1.) This is a petition filed to review the Judgment and decree of this Court dated 2-9-1986 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 sometime and a female child was born. Later on some differences arose. Therefore, the husband filed O.P.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 O.P. and granted a decree of divorce. Against that Judgment, the wife filed the appeal, C.M.A.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 husband and wife and a female child was also born to them on 20-10-1984, by name M.Mahalaxmi, 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 20-10-1984, named as Mahalaxmi. 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 R.W.1 and also examined another witness as R.W.2. The husband also appeared and examined himself as P.W.I. The wife filed I.A.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, Shivaraj, and the disputed child Mahalaxmi and also Smt. Shakuntala herself to determine the paternity of the second child Mahalaxmi. She also filed I.A.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 both I.As by its common order dt.l 6-10-1989. Against the said common order the husband filed CR.P.Nos.446/90and445/90in this Court, but both these C.R.Ps were dismissed in limine on 23-2-1990. Thereafter the husband did not comply with the order dt.16-10-1989 of the lower court in I.A.Nos.2787/89 and 2786/89 and did not undergo the test. Thereafter, he filed another I.A.No.1314/90 to review the order in the above I. As, but the said review petition was dismissed by the lower court on 31-8-1990 on the ground that the order dt.16-10-1989 in I.A.Nos.2786/ 89 and 2787/89 stood merged in the order of the High Court passed in C.R.P.Nos.445/90 and 446/90. The estimated expenditure for the test ordered in I.A.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 re-union between the petitioner-wife and the respondent-husband in the year 1983 after the C.M.A. 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 re-union between the petitioner-wife and the respondent-husband and the second female child Mahalaxmi was bom to the petitioner through the respondent as they lived together as wife and husband during the period of re-union.