BIPLAB DHAR Vs. PANNA SAHA

JUDGEMENT

(1.) By this revision the order dated 30.04.2008 passed by the learned Judge, Family Court, Agartala, West Tripura in Misc. Case No. 297 of 2007 awarding maintenance allowance @ Rs. 1200/- per month in favour of the respondent-wife of the petitioner and @ Rs. 600/- per month in favour of their son with effect from 1.4.2008 has been challenged with a prayer for directing the respondent-wife to undergo DNA test for determination of the paternity of the child.

(2.) The brief story of the case as emerged from the pleadings of both the parties is as follows :- The marriage between the petitioner and the respondent was solemnized on 12.6.2005 as per the Hindu rites and ceremonies. After the said marriage the couple used to live as husband and wife peacefully. According to the respondent-wife, they used to live in the residence of her husband (petitioner) and out of the said wedlock a son was born to them on 15.1.2007. The petitioner-husband withdrew from the society of the wife-respondent on the ground that she could not bring more dowry from her parents. That apart, questioning the paternity of the child the husband-petitioner demanded that the paternity of the child should be determined by a DNA test. It was further alleged that the petitioner-husband had driven out the respondent from the marital home on 14.8.2006 and since then the respondent-wife has been compelled to take shelter in her parents' house. Therefore, the respondent-wife filed a petition under Section 125 CrPC against her husband (petitioner) claiming maintenance for herself and for her minor son. Contesting the respondent's claim for maintenance the petitioner-husband while challenging the paternity of the child alleged that the respondent herself had withdrawn from the society of her husband and that due to a surgical operation of spinal chord the petitioner-husband was not in a position to co-habit with his wife-respondent and as such the child not being born through him, the petitioner was not under any obligation to maintain the respondent as well as her child. On the basis of the pleadings of both the sides the learned Judge, Family Court framed the following issues for decision :-

(3.) The wife-respondent in Misc. Case No. 297 of 2007 examined herself as PW 1, while the husband-petitioner examined himself as DW 1 and two more witnesses as DW 2 and DW 3. The learned Judge, Family Court having heard both the sides and considering the materials on record came to the finding that the husband-petitioner neglected/refused to maintain his married wife and the child born out of their wedlock and accordingly granted maintenance @ Rs. 1200/- per month in favour of the wife-respondent and @ Rs. 600/- per month in favour of their minor son to be payable by the petitioner-husband with effect from 1.4.2008. Referring to the provision of Section 112 of the Evidence Act, the learned Judge, Family Court held that the petitioner-husband failed to prove that he had no access to his wife and thus held that there was no ground to believe that the child was not born out of their wedlock. Therefore, the learned Judge, Family Court refused to allow the prayer for DNA test.