PRADIP KUMAR SARKAR Vs. ANURADHA SARKAR

JUDGEMENT

(1.) By virtue of the impugned order dated August 10, 2018 the trial court rejected an application filed by the petitioner in aid of the matrimonial suit for DNA test of the son of the first opposite party, the paternity of whom is disowned by the petitioner. The trial Judge rejected the said application primarily on the premise that there was a previous adjudication of a similar application and as such the same was hit by the principle of res judicata. It was further observed that, in view of certain findings made in the alimony matter, there was no further scope of seeking such relief again in the suit.

(2.) Learned counsel appearing for the petitioner argues that the previous application for a similar relief was rejected on the grounds that the same was beyond the limited scope of an application under section 24 of the Hindu Marriage Act, 1955 and it was observed by the trial court, while rejecting such application, that the husband (being the present petitioner) might get ample scope to raise the point in course of hearing of the main suit. It is further argued on behalf of the petitioner that the petitioner has made categorical allegations on the paternity of the child to entitle the husband to a DNA test of the child. In particular, paragraphs 3 and 9 of the plaint were relied on by the petitioner.

(3.) Learned counsel appearing for the opposite parties, per contra, submits that in between the rejection of the prior application for DNA test and the current application for the similar relief, the alimony application bearing Misc. Case No.31 of 1997 was disposed of vide order No.52 dated June 30, 2000. It is pointed out that the trial court, while deciding the said application, had categorically observed that the husband had admitted his son to be born at his house, while his wife used to reside there. It was further recorded that the husband had stated that he bore all nursing home expenditure at the time of birth of his son. The trial court, while disposing of the alimony matter, further held that regarding the paternity of the child, it was already found that the present petitioner was the father of the child. Since such order has not been challenged before any higher forum, it is argued that the findings in regard to the paternity of the child have attained finality, and that the petitioner cannot now reopen the said issue by filing a second application for DNA test of the child.