GEETA MISHRA Vs. KRISHNA MOHAN MISHRA

JUDGEMENT

(1.) THE challenge put forth in the present writ petition filed under article 227 of the Constitution of India, is to an order dated 15-5-2008 passed by the Presiding Officer, Family Court, Rewa, whereby the Trial Court while entertaining an application under Order 26 Rule 10-A, Code of Civil Procedure in a proceeding under Section 13 of Hindu Marriage Act, 1955 initiated at the instance of the respondent husband, allowed the conduction of DNA test of the child, Pankaj Kumar, petitioner No. 2.

(2.) THE petitioner wife questions the order on the anvil that, the same, besides being at a premature stage also tantamount to collection of evidence regarding paternity of the child which otherwise is to be rebutted by leading evidence by the respondent husband. The facts on which the objection is being raised is that the respondent husband has set up his case of divorce on the ground of desertion alleging that the petitioner wife after marriage in the year 1987 lived with the respondent till 1992 and thereafter is living with her parents, she gave birth to petitioner No. 2 in the year 1994. This fact is however, disputed by the petitioner No. 1 who has brought on record the certificate issued by the district Education Board indicating therein the date of birth of the petitioner no. 2 being 12-10-1992. It is, therefore, contended on behalf of the petitioner that unless the respondent/husband proves the fact that the petitioner No. 2 was born in the year 1994 and not in the year 1992, and the fact and that she was leading an adulterous life, the respondent cannot resort to seek DNA test of the child merely to collect evidence.

(3.) THE respondent on his turn, however, supports the impugned order. The learned Counsel for the respondent further relies upon the judgment rendered by various High Courts, viz. , Radhey Shyam Vs. Mst. Pappi, AIR 2007 rajasthan 42; Heera Singh Vs. State of U. P. and others, 2005 Cri. LJ 3222; Smt. B. Vandana Kumari Vs. P. Praveen Kumar and another, AIR 2007 Andhra Pradesh 17; V. K. Bhurvaneshwari Vs. N. Venugopal, AIR 2007 (DOC) 158 (Mad ).