AFR MANAS KUMAR KAR Vs. BINAYA MISHRA

JUDGEMENT

(1.) This is an application under Article 227 of the Constitution of India involving a challenge to the order dated 15.10.2014 under Annexure-8 being passed by the Judge, Family Court, Cuttack in C.P. No.7/2006 thereby rejecting an application at the instance of the petitioner-husband for issuing direction for D.N.A. test involving the opposite party-wife arising out of the main dispute for divorce being sought for by the husband, the petitioner.

(2.) Background involving the case is that the petitioner- husband filed an application before the Family Court, Cuttack under Section 12 of the Hindu Marriage Act to declare the marriage between the petitioner and the respondent as void on the premises that the wife-respondent had conceived and was already pregnant at the time of marriage by a person other than the husband, which fact was not within the knowledge of the petitioner at the time of marriage. The husband filing the application alleged that even the petitioner had no knowledge of pregnancy of the wife till actually the child was born and the petitioner had not lived with her nor there is any marital intercourse after discovery by the petitioner about the fact that the respondent-O.P. was pregnant prior to her marriage by somebody else. Husband alleged that the child was born on 26.11.2005, i.e., exactly six months and fifteen days after the date of marriage in the Capital Hospital at Bhubaneswar. The opposite party-wife after receiving notice in the Civil Proceeding No.7/2006 filed written statement denying the allegation at the instance of the petitioner. This case involves a series of litigations in this Court. W.P.(C) No.13750/2008 was moved by the husband challenging the earlier order of the Family Court dated 18.8.2008 rejecting such application filed by the husband praying for D.N.A. test to find out the parentage of the child. The opposite party-wife filed W.P.(C) No.5673/2008 challenging the order dated 31.3.2008 passed in Misc. Case No.135/2006 arising out of the same Civil Proceeding but the Family Court rejected her prayer for grant of maintenance and only granted litigation expenses of Rs.500/-. Both the writ petitions were disposed of by this Court by common order dated 30.1.2009. On the aspect of rejection of the application for D.N.A. test by the husband, this Court directed that if after completion of trial in the event an application is filed by the husband-petitioner for D.N.A. test, the same shall be considered on merit afresh giving due importance to the decision of the Hon'ble apex Court in Sharda vrs. Dharmpal reported in AIR 2003 SC 3450. This Court further directed for taking steps for early disposal of the Civil Proceeding preferably within six months. So far as W.P.(C) No.5673/2008 is concerned, the same Division Bench of this Court interfering with the impugned order directed for payment of interim maintenance @ Rs.2000/- per month.

(3.) In the meantime, the matter again visited the High Court through W.P.(C) No.6278 challenging the order dated 12.3.2010 where the Family Court rejecting the application of the husband to summons Dr.Susama Mishra, Gynecologist of Capital Hospital and the Centre Head of Vandana Luthras Slimming and Beauty (VLCC) for examination and also to call for the documents indicated in the petition, i.e., Bed-Head Ticket in respect of the wife. This writ petition was disposed of by a Division Bench of this Court thereby directing the Family Court, Cuttack to issue summons to Dr.Susama Mishra while rejecting the application to summons the Centre Head of VLCC by its order dated 16.3.2011. After the proceeding was further undertaken and closure of evidence based on the direction of this Court in the disposed of writ petitions bearing W.P.(C) Nos.5673/2008 and 13750/2008, the petitioner again filed petition dated 8.5.2014 with a prayer to have the D.N.A. test by collecting blood sample from the petitioner, opposite party and the child involved. Opposite party-wife filed objection to the said application. It appears, the Family Court hearing both sides on the aspect of D.N.A. test was pleased to reject the application by its order dated 15.10.2014 resulting in filing of the present writ petition.