Punjab-Haryana High Court
Karamjit Kaur And Another vs Tarsem Chand on 12 November, 2013
Author: Sabina
Bench: Sabina
CRR No. 639 of 2013 (O&M) 1
In the High Court of Punjab and Haryana at Chandigarh
CRR No. 639 of 2013 (O&M)
Date of decision:12.11.2013
Karamjit Kaur and another
......Petitioners
Versus
Tarsem Chand
.......Respondent
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr.Jastej Singh, Advocate,
for the petitioners.
Mr.Harish Goyal, Advocate,
for respondent.
****
SABINA, J.
Petitioners have filed this petition under Section 401 of the Code of Criminal Procedure, 1973 for setting aside the order dated 7.1.2013, allowing application moved by the respondent for getting DNA test conducted to establish his plea that respondent No.2 was not born out of his wedlock with respondent No.1.
Learned counsel for the petitioners has submitted that respondent had filed divorce petition under Section 13 of the Hindu Marriage Act, 1955 (Annexure P-2), wherein, he had admitted the birth of petitioner No.2 out of his wedlock with petitioner No.1. However, now the application (Annexure P-4) had been filed on Devi Anita 2013.11.13 16:18 I am approving this document Chandigarh CRR No. 639 of 2013 (O&M) 2 16.7.2012, wherein, respondent had denied that he was the father of petitioner No.2 and had sought that a DNA test be conducted in this regard.
Learned counsel for the respondent, on the other hand, has opposed the petition and has submitted that petitioner No.2 was not born out of the wedlock of petitioner No.1 and the respondent. Due to ill-advise, it had been stated in the divorce petition that petitioner No.2 was born out of the wedlock of petitioner No.1 and the respondent.
In the present case, petitioners have file a petition under Section 125 Cr.P.C. seeking maintenance. During the pendency of the said petition, respondent has filed an application for conducting DNA test of petitioner No.2 to establish his plea that he (petitioner No.2) was not born out of the wedlock of the respondent with petitioner No.1. The said application was moved on 16.7.2012.
Annexure P-2 is the divorce petition filed by the respondent. Para 3 of the said petition reads as under:-
"That after the marriage the parties resided together as husband and wife at village Raitriana and Sunam only up 28.2.2004 and cohabited each other and from the wedlock of the parties one male child namely Navdeep Kumar was born on 9.11.1999 at Singal Nursing Home, Sangrur. The child residing with the respondent."
Admittedly, the said petition was filed in the year 2011. Thus, in the divorce petition filed by the respondent seeking Devi Anita dissolution of his marriage with petitioner No.1, he has himself 2013.11.13 16:18 I am approving this document Chandigarh CRR No. 639 of 2013 (O&M) 3 stated that petitioner No.2 was born out of his wedlock with petitioner No.1. Trial Court had erred in allowing the application filed by the respondent seeking DNA test of petitioner No.2 to establish his paternity. Contents of the divorce petition have been admitted by counsel for the respondent. Respondent had not sought amendment of the divorce petition filed by him and the same is still pending. In these circumstances, impugned order dated 7.1.2013 is liable to be set aside.
Accordingly, the petition is allowed with costs of ` 25,000/-. Impugned order dated 7.1.2013 is set aside (SABINA) JUDGE November 12, 2013 anita Devi Anita 2013.11.13 16:18 I am approving this document Chandigarh