Madhya Pradesh High Court
Umesh @ Akshay Matlani vs Smt Mayra (Priyanka) Matlani on 19 November, 2018
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HIGH COURT OF MADHYA PRADESH,
BENCH AT INDORE
MP NO.5472/2018
Umesh @ Akshay Matlani s/o Ramesh Matlani vs. Smt.Mayra (Priyanka)
Matlani w/o Umesh @ Akshaya Matlani & one another
19.11.2018 (INDORE):
Shri Brajesh Pandya, learned counsel for the petitioner.
Heard.
ORDER
The present case has been filed by the petitioner being aggrieved by the order dated 23.10.2018 passed by IInd Additional Principal Judge, Family Court, Indore in case No. 679/2016 filed by the respondents whereby she has moved an application under section 125 of the Cr.P.C claiming maintenance for herself and respondent No.2.
The undisputed facts in this case are that the marriage between the petitioner and respondent No.1 took place on 07.07.2014. Thereafter, the respondent and the petitioner were living together at the matrimonial home in Surat. On 22.10.2015, a son was born to the petitioner and the respondent No.1. The said child is respondent No.2 in this petition and his name is Abeer. By way of an application under section 125 Cr.P.C, the respondent No.1 has prayed for a monthly maintenance amount of Rs.50,000/- along with Rs.1,00,000/- towards medical expenses; Rs.20,000/- towards -2- cost/litigation expenses and Rs.50 lacs towards one time settlement. The petitioner moved an application under section 45 of the Evidence Act for the DNA test of the respondent No.2 claiming that it is not his child. Learned Court below after having gone through the record of the case and having heard both the sides arrived at a conclusion that even though the respondent No.1 is stated to have stayed at Indore since 11.07.2015 when she had gone there to attend a marriage of her brother and a child was delivered at Indore on 22.10.2015, and therefore it was apparent that before 11.07.2015 the respondent No.1 was residing with the petitioner and it could not be presumed that there was no access of the petitioner to the respondent No.1. Learned counsel for the petitioner in support of his argument has placed before this Court the judgment of the Andhra Pradesh High Court reported in AIR 2008 AP 195 (Marada Venkateswara Rao vs. Oleti Vara Lakshmi & another). Having gone through the said order, it is apparent that in that case it was a question of maternity and that has been disputed in a property dispute between the parties in which the learned Court below had order a DNA test and the same was upheld by the High Court. However, in the case of disputed paternity, the DNA can certainly be resorted to but the same must not be resorted to merely on the basis of the allegation of a party. There must be a prima facie case which would -3- disturb the presumption of section 112 of the Evidence Act. Annexure P/5 which has been filed along with the petition at page No.38 is a sonography report of respondent No.1 which records the LMP as on 09.02.2015. The said test was performed when the respondent No.1 was residing at her matrimonial home. At that time there was nothing to show that the respondent No.1 did not have access to the petitioner. Learned counsel for the petitioner has also submitted that the child was born full term and there was a period when she was not with the petitioner i.e. in December, 2014. However, from the time of her marriage on 07.07.2014 till November, 2014 the respondent No.1 was with the petitioner and thereafter from January also till the sonography test was performed she was with the petitioner. The sonography reports are approximations and cannot by reasons be deemed to be precise with mathematical accuracy. Apart from that, if the petitioner had any cause to doubt the paternity of respondent No.2 in 2015 itself, it would have been natural on his part to have moved an application for divorcing the respondent No.1 which he did not do.
Under the circumstances, the order passed by the learned Court below cannot be said to be suffering from any kind of perversity and, therefore, the said order is sustained, as an effect of which, the petition is dismissed. However, the observations made in this order shall not preclude the -4- petitioner from raising such defenses which may be available to him under the law in any other proceedings pending between the parties.
(ATUL SREEDHARAN) JUDGE Digitally signed by Hari Kumar Nair Date: 2018.11.20 18:57:14 +05'30' hk/