ACHUGATLA RAJU Vs. ACHUGATLA SUJANA

JUDGEMENT

(1.) THE revision petitioner is the husband of the 1st respondent/wife. The 2nd respondent is his son. Respondents 3 and 4 are his daughters. The 1st respondent filed M.C.No. 28 of 2009 before the Family Court, Mahabubnagar seeking maintenance for herself and for her 3 minor children. Through the impugned order dated 19 -9 -2011, Family Court granted maintenance at Rs. 1,500/ - per month in favour of the 1st respondent/wife and at Rs.1,000/ - per head per month in favour of respondents 2 to 4, who are the children of the petitioner and the 1st respondent. Assailing the same, the present revision is laid.

(2.) ALBEIT the petitioner -husband questioned the entire case, he confined his claim to the maintenance awarded against his wife and against his 2nd daughter. So far as the wife is concerned, the contention of the husband is that the wife is a tailor, has her own earnings and is capable of maintaining herself, so much so, she is not entitled to maintenance. So far as the 2nd daughter (4th respondent herein) is concerned, it is the contention of the husband that the 2nd daughter is not his biological daughter and that he is not liable to pay maintenance to the 2nd daughter. Albeit he thus attributed unchastity to his wife so far as the 2nd daughter is concerned, he did not contend that his wife is not entitled to maintenance owing to her unchastity. His dispute regarding the right of the wife for maintenance is on the ground that the wife has been making her own earning and is not entitled to maintenance. It may also be noticed that the financial capacity of the husband and the quantum of maintenance awarded in favour of the wife, son and the daughters are not in question. I therefore do not deliberate upon these aspects.

(3.) IT is the contention of the learned counsel for the husband that the Trial Court did not draw any adverse inference against the respondents albeit the respondents declined to submit the 2nd daughter for DNA Test. He placed reliance upon B.Vandana Kumari v. P. Praveen Kumar in support of his contention. With reference to presumption under Section 112 of the Evidence Act, 1872, a learned Single Judge of this Court held that normally, the rule of evidence is that the burden is on the party who asserts the positive and that in respect of Section 112 of the Evidence Act, the burden is upon the party who pleads the negative. Regarding the DNA Test, the learned Judge held that in the facts and circumstances of the case, it would be appropriate to direct the concerned party to undergo the DNA Test.