SEEMA SHARMA Vs. AMAR SHARMA

JUDGEMENT

(1.) Challenge in this petition under Article 227 of the Constitution is made to a order dated 15th October 2005 passed by the Family Court, Gwalior in case No. 92-A of 2005 (Hindu Marriage Act), Amar Sharma v. Smt. Seema Sharma directing for DNA test to find out the parentage of a child said to have been born to the petitioner, Smt. Seema Sharma.

(2.) Facts in brief necessary for deciding the present petition are that the petitioner, Smt. Seema Sharma and the respondent, Amar Sharma were married as per Hindu rites and custom at Gwalior on 25th January, 1996. It is the case of the respondent/husband that at the time of marriage, he was working in the office of Madhya Pradesh Police Housing Corporation, Division Gwalior and the petitioner/wife was working as Naib Tehsildar in the District Headquarter, Gwalior. It is the case of respondent/husband before the Family Court that after three days of his marriage, it came to his knowledge that his wife was a lady with doubtful background and had illegal affairs in the past with certain person. It is stated by the parties that immediately after marriage on 7th February 1996, the husband was transferred from Gwalior to Shivpuri and after joining in Shivpuri, he was immediately posted at Chanderi where he is staying since February 1996. Thereafter, the wife was also transferred from Gwalior to Indore as District Women and Child Development Officer, Indore on 19th March 1996 and since then she is staying at Indore. It is the case of the respondent that ever since their marriage, they have not cohabited, they are living separately and a girl child was born to the petitioner on 21st December 1996 at Agra. Inter alia contending that the petitioner/wife is having illegal relations and the child born to her is not his child, respondent/husband has filed an application before the Family Court at Gwalior and has sought a decree of divorce, so also, declaration to the effect that the child born to the petitioner on 21st December 1996 is not his child. On the aforesaid application filed by the respondent/husband, the petitioner has filed her reply and has denied the averments made in the petition for divorce and declaration. It seems that various conciliation proceedings took place and ultimately, an application was filed by the respondent/husband purported to be a application under Order XXVI, rule 10-A C.P.C., making a prayer that the child in question be subjected to DNA test. This application was objected by the petitioner and the grievance of the petitioner in this petition is that in spite of the objection, the application has been allowed by the impugned order.

(3.) Shri S.B. Mishra, learned senior counsel appearing for the petitioner made two grounds of attack to the impugned order. His first contention was that the relief of declaration claimed in the divorce petition is not maintainable and the same is beyond the jurisdiction of the Family Court as contemplated under section 7 of the Family Courts Act, 1984. Inter alia contending that the Family Court does not have any jurisdiction to declare the legitimacy of child, it is argued that the application itself was not maintainable, and therefore, no direction can be issued for conducting DNA test.