JYOTI SAVITA Vs. PAWAN KUMAR SEN

JUDGEMENT

(1.) Being aggrieved by the order dated 14-10-11 passed by I ADJ Datia in Civil Suit No. 31/09 HMA whereby review application filed by the petitioner for recalling of the order dated 4-8-10 was dismissed, present petition has been filed. Short facts of the case are that respondent filed a divorce petition on 15-5-09 wherein it was alleged that the marriage of the petitioner was to be solemnised with the respondent on 13-5-07, but at the time of marriage somebody fired on the respondent, with the result, respondent sustained head injuries and was hospitalised, therefore, marriage could not be solemnised. However, thereafter, on 15-5-07 the marriage was solemnised. It was alleged that the petitioner lived with the respondent upto 25-6-07, and thereafter, went to her parental house. It was alleged that on 7-7-08, petitioner came to her matrimonial house where she lived up to 20-7-08. Thereafter, again petitioner came to her matrimonial house with the younger brother Gagan on 20-4-09. It was alleged that after 20-4-09 petitioner is not residing with the respondent. In the petition, it was prayed that decree of divorce be passed. By way of amendment, it was alleged that on 20-5-09, petitioner-gave birth to the daughter namely Deepti who is not from the respondent. The petition was contested by the petitioner by filing the reply. During pendency of petition an application was filed by the respondent wherein it was prayed that since the daughter of the petitioner is not from respondent, therefore, DNA test be conducted This application was allowed vide order dated 4-8-10. Thereafter, divorce petition filed by the petitioner was itself dismissed vide order dated 13-10-10 which was subsequently restored. After its restoration petitioner filed an application for review of the order dated 4-8-10 alongwith an application for condonation of delay wherein it was alleged that the delay occurred because the suit was dismissed. The application was opposed by the respondent. After hearing the parties, application for review was dismissed, hence this petition.

(2.) Learned Counsel for the petitioner submits that the impugned order passed by the learned Court below is illegal, incorrect and deserves to be set aside. It is submitted that only on the basis of vague allegation, petitioner cannot be compelled for DNA test of her minor daughter. It is submitted that the learned Court below was not justified in dismissing the review application as well. It is submitted that the petition be allowed and impugned order passed by the learned Court below be set aside.

(3.) Learned Counsel for respondent supports the order and submits that the original order was passed on 4-8-10 whereby petitioner was directed for DNA test of girl child of the petitioner, which was not challenged by the petitioner. It is submitted that it is only review application which was filed, which was dismissed on 14-10-11 and in the writ petition it is only order dated 14-10-11 which is challenged. It is submitted that without challenging the order dated 4-8-10, the petition deserves to be dismissed. Learned Counsel further submits that the respondent is having a strong prima facie case in his favour because the respondent has specifically pleaded in his petition for grant of decree of divorce that the respondent had no sexual access with petitioner and since the petitioner has become pregnant with a sexual access by some other person, therefore, respondent is entitled for DNA test of the child. Learned Counsel placed reliance on a decision in the matter of Chanda Chouhan Vs. Sanjay Chouhan, 2010 5 MPHT 225 wherein this Court has held that in the case, child borne in about seven months after marriage, then it cannot be concluded that the child was conceived before marriage. Reliance is also placed on a decision in the matter of Sharda Vs. Dharmpal, 2003 4 SCC 493 wherein in a case for divorce accompanied by application for a direction for medical examination of respondent Hon'ble Apex Court held that such power should be exercised only if the applicant has a strong prima facie case and there is sufficient material before the Court. Further reliance is placed on a decision in the matter of Seema Sharma Vs. Amar Sharma, 2006 4 MPHT 305 wherein this Court held that in a case where parentage of child of parties disputed, Family Court has discretion to order DNA test. Lastly reliance is placed on a decision in the matter of Smt. Selvi Vs. State of Karnataka, 2010 AIR(SC) 1974 On the strength of aforesaid position of law, learned Counsel submits that the petition be dismissed.