REENA Vs. ISHWAR

JUDGEMENT

(1.) Being aggrieved by the order dated 28.1.2010 passed by II Additional Family Court, Indore in Case No. 441/09 where by the application filed by the Petitioner for DNA test of the Respondent was dismissed, the present Petitioner has been filed.

(2.) Short facts of the case are that the Petitioner filed a petition against the Respondent for declaration that the marriage solemnized between the parties on 10.12.2004 be declared void. In the petition it was alleged that the marriage was solemnized on 10.12.2004 and out of the wedlock Petitioner was blessed with a son on 1.9.2005. Petitioner was contested by the Respondent by filing written statement wherein it was denied that the marriage was solemnized between the parties. It was also denied that son of the Petitioner is from the respondent. It was prayed that the petition be dismissed. In the circumstances an application was filed by the Petitioner wherein it was alleged that Respondent be sent for DNA test. The application was opposed by the respondent. After hearing the parties, learned Trial Court dismissed the application, against which present petition has been filed.

(3.) Leaned Counsel for Petitioner argued at length and submits that the impugned order passed by the learned Court below is illegal, incorrect and deserves to be set aside. It is submitted that in the written statement Respondent has denied the marriage and has also denied the paternity of the son of petitioner. It is submitted that at the earlier point of time Respondent himself offered for DNA test, therefore, there was no justification on the part of learned Court below in dismissing the application. Leaned Counsel placed reliance on a decision in the matter of Goutam Kundu v. State of West Bengal, 1993 AIR(SC) 2295 herein father disputing paternity of child and seeking blood test of child, Hon'ble Apex Court held that purpose of application is nothing more than to avoid payment of maintenance. While deciding the case Hon'ble Apex Court has also laid down certain principles which reads as under: