SUMAN PRAKASH @ SUMAN MUNDU Vs. DIVYA LALITA

JUDGEMENT

(1.) SEEKING quashing of order dated 08.11.2011 in Matrimonial Title Suit No. 130 of 2008 whereby, the petition dated 25.05.2011 under Section 12 of the Family Court Act, 1984 has been rejected, the petitioner has approached this Court.

(2.) BRIEFLY stated, the marriage of the petitioner was solemnized with the respondentwife on 25.10.2001 at St. Marys Cathdral Church, Ranchi. After November, 2002, the couple separated and there was no physical relationship established between them. On 30.01.2003, the respondentwife left her matrimonial house. On 07.05.2003 when the respondent came to attend last rites of her motherinlaw, she started vomiting and she was taken to doctor for medical checkup where it was found that she was pregnant and the pregnancy was of 65 days. The respondentwife gave birth of a daughter on 11.12.2003. The petitioner filed Matrimonial Title Suit No. 130 of 2008 under Section 10 of the Indian Divorce Act, 1869 seeking divorce on the ground of adultery. The respondent filed her written statement on 23.03.2009 in which it is stated that the respondent and her family members agreed for D.N.A. test of the petitioner and their daughter however, subsequently, the petitioner changed his mind and he has not undergone the D.N.A. test. The respondent has also filed Maintenance Case No. 13 of 2008 in which she has deposed that on 22.07.2009 she agreed for D.NA. test in the Panchayat. In these facts, the petitioner filed an application under Section 12 of Family Courts Act, 1984 on 25.05.2011 seeking order of the Court for D.N.A. test of his own and his daughter however, the said petition has been erroneously dismissed vide order dated 08.11.2011. Aggrieved, the petitioner has approached this Court by filing the present writ petition.

(3.) A counterapplication has been filed taking a plea of nonjoinder of necessary party. It is stated that the writ petition suffers from suppressio veri and suggestio falsi and therefore, it is liable to be dismissed. Materials on record including the Sonography Report clearly disclose that the respondentwife conceived when she was in her matrimonial home. Denying the allegation of the petitioner as false, frivolous, fictitious and manufactured, the impugned order dated 08.11.2011 is supported by the respondent.