Madras High Court
R.Thangadurai vs T.Keerthana on 10 March, 2022
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
Crl.R.C.(MD) No.961 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 10.03.2022
CORAM:
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.R.C(MD) No.961 of 2021
and
Crl.M.P(MD)No.11655 of 2021
R.Thangadurai ... Petitioner/
Petitioner/
Respondent
Vs.
1. T.Keerthana
2. Minor Vishnu
S/o.Thangadurai ... Respondents/
Respondents/
Petitioners
PRAYER: Criminal Revision Case filed under Section 397 and 401 Cr.P.C., to
call for the records and set aside the order passed dated 31.08.2021 made in
Crl.M.P.No.1495 of 2019 in M.C.No.64 of 2017 on the file of the Chief Judicial
Magistrate, Kumbakonam.
For Petitioner : Mr.G.Gomathi Sankar
For Respondents : No Appearance
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Crl.R.C.(MD) No.961 of 2021
ORDER
This Criminal Revision Petition has been filed to set aside the order passed dated 31.08.2021 made in Crl.M.P.No.1495 of 2019 in M.C.No.64 of 2017 on the file of the Chief Judicial Magistrate, Kumbakonam, thereby dismissing the petition filed under Section 45 of Indian Evidence Act, seeking a direction to conduct DNA test for the respondents.
2. The case of the prosecution is that the marriage was solemnized on 04.09.2016 between the petitioner and the first respondent herein. Thereafter, the first respondent gave birth to a male child / the second respondent herein on 17.05.2017. The case of the petitioner is that there is no cohabitation soon after marriage, since the first respondent is having her menstrual cycle during marriage. Even thereafter also, there was no cordial conjugal relationship between them. The petitioner made a specific allegation as against the first respondent that she is having relationship with so many persons. Further even before the completion of eight months of their marriage, she gave birth to the second respondent herein. Therefore, he suspected the fidelity of the first respondent and filed the petition for divorce. While pending divorce petition, the 2/6 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD) No.961 of 2021 first respondent filed a petition seeking maintenance in M.C.No.64 of 2017. While pending the maintenance case, the petitioner filed a petition under Section 45 of Indian Evidence Act, seeking for a direction to conduct DNA test for the respondents along with the petitioner herein. The Court below dismissed the same. For the reason, this petition has been filed at belated stage and it consumes more time to complete the DNA test. Further, the petitioner can very well challenge the paternity of second respondent before the civil Court, especially, in relation to the marriage in the manner known to law. Though the petitioner filed divorce petition on the ground of adultery all along, he alleged that even before completion of eight months, the second respondent was born to the first respondent and he had no cohabitation with the first respondent. Further, he had alleged that the first respondent is having relationship even before marriage with so many persons and even after marriage with other persons.
3. That apart, this petition has been filed in the maintenance case if the first respondent has relationship with other persons and if the allegation of adultery is proved she is not entitled for maintenance. Therefore, it is duty bound to prove the same by the petitioner.
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4. In view of the above, the trial Court ought not to have dismissed the petition filed for DNA test. Therefore the order passed, dated 31.08.2021 made in Crl.M.P.No.1495 of 2019 in M.C.No.64 of 2017, on the file of the Chief Judicial Magistrate, Kumbakonam is set aside. The Court below is directed the petitioner and the respondents to go for DNA test before the appropriate Medical Board and on receipt of the report, complete the trial within a period of three months thereafter.
5. With the above directions, this Criminal Revision Case is allowed. Consequently, connected miscellaneous petition is closed.
10.03.2022 Internet:Yes Index:Yes/No Speaking/Non speaking order mga Note :In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned.
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1. The Chief Judicial Magistrate, Kumbakonam.
2. The Additional Public Prosecutor, Madurai Bench of Madras High Court.
Madurai.
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