DEV RAJ DEV Vs. THE STATE OF BIHAR

JUDGEMENT

(1.) Petitioner in the present case has moved this Court seeking a writ of Certiorari to quash and cancel the part of the order dated 10.11.2016 passed by the learned Principal Judge, Family Court, Purnea in Maintenance Case No. 208 of 2013 vide Annexure-4 to the writ application. Upon quashing of impugned order the further prayer of the petitioner is to issue a writ of Mandamus directing the Principal Judge, Family Court, Purnea to get conducted the Dioxy Nucleric Acid Test (DNA test) of the applicant, his wife and the youngest son in two laboratories at the cost of the applicant.

(2.) The grievance of the petitioner is that even though in course of her deposition in Maintenance Case No. 208 of 2013 the wife of the petitioner took a stand that if the court would direct for paternity test of her sons, she would be ready to go for that test, later on when an application seeking such a direction was filed by the petitioner, she opposed his application on various grounds and refused to give consent for the DNA test. Considering the objections of the wife, the learned Principal Judge, Family Court, Purnea rejected the application dated 17.05.2014 preferred by the present petitioner. The impugned order dated 10.11.2016 has been annexed as Annexure-4 to the present writ application.

(3.) Mr. Sandeep Kumar, learned Advocate assisted by Mr. Sunil Kumar and Mr. Ranjit Kumar, learned Advocates submits that this petitioner has filed a divorce case under Section 13 of the Hindu Marriage Act on the statutory ground of cruelty, the divorce petition was registered as Matrimonial Case No. 201 of 2012 in the Family Court, Purnea. It is admitted that in the divorce petition there was no allegation of 'adultery' and the same was not set forth as a ground for divorce. It is, however, stated that during pendency of the divorce case, the wife of the petitioner (respondent no. 2) brought a Maintenance Case giving rise to Maintenance Case No. 208 of 2013 in the court of learned Principal Judge, Family Court, Purnea. The learned Principal Judge, Family Court, Purnea vide his order dated 20.01.2014 awarded an interim maintenance of Rs. 18,000/- per month, which according to the petitioner is being paid to respondent no. 2. At the stage of awarding interim maintenance, though no plea of 'adultery' was taken against the respondent no. 2 but after few days, the petitioner filed an application dated 17.05.2014 seeking DNA test in which he questioned the paternity of the youngest son delivered by respondent no. 2 during the subsistence of marriage. In his application before the learned Principal Judge, the petitioner traced the entire history of his conjugal life since marriage and though he admitted that there had been occasional marital intercourse with respondent no. 2 on various occasions, he raised a doubt on the paternity of the second son citing certain circumstances. It is his stand that there were several marital intercourse during the natural cycle and after the birth of first child but the petitioner had never gone for unsafe intercourse with the respondent no. 2 in the present case.