Calcutta High Court (Appellete Side)
Abhishek Paria vs Smt. Nupur Paria & Anr on 13 March, 2020
Author: Biswajit Basu
Bench: Biswajit Basu
1 ML 417 Dt. 02.03.2020 sandip Ct. 18 13.03.2020
C.O. No. 1743 of 2016 Abhishek Paria Vs. Smt. Nupur Paria & Anr.
Mr. Gopal Chandra Ghosh, Ms. Jayeta Kaunda ... For the petitioner.
Mr. Arnab Roy ... For the O.P. No. 1.
The petitioner has filed a suit being Matrimonial Suit No. 54 of 2008 seeking dissolution of his marriage with the opposite party no. 1, inter alia, on the ground of adultery. The said suit is pending before the 6th Court of learned Additional District Judge at Barasat, District 24 Parganas (North).
The petitioner is alleging that the opposite party no. 1 is in adulterous relationship with his brother, the opposite party no. 2 herein.
The petitioner in the suit filed an application for DNA Test of the youngest son of the parties alleging that he was fathered by the opposite party no. 2.
2The learned trial Judge by the order impugned has dismissed the said application of the petitioner holding that once the validity of the marriage is proved then there is a strong presumption under Section 112 of the Evidence Act, 1872 regarding the legitimacy of the said child.
The petitioner in the application for DNA test of the said child has alleged that in family meetings held on November 13, 2008 and on December 23, 2008 the opposite party no. 1 has admitted about her adulterous relationship with the opposite party no. 2 and she also admitted that her youngest son was fathered by the said opposite party no. 2.
The opposite party no. 1 in her written objection to the said application has denied the said allegation of the petitioner. In order to get the relief as prayed for in the said application the petitioner is required to prove that he had no access to the opposite party no. 1 when the said child was begotten and only then he can resort to the procedure of scientific investigation to rebut the presumption of legitimacy of the said child as contemplated under Section 112 of the Evidence Act, 1872. The petitioner never attempted to prove such non-access, therefore, in the absence of any evidence to the contrary the presumption of legitimacy of the said child stands unrebutted. 3 The learned trial Judge therefore has committed no error in refusing the said prayer of the petitioner. C.O. 1743 of 2016 is dismissed.
No order as to costs.
However, it is made clear that dismissal of the revisional application shall have no effect on the veracity on the ground of adultery. The petitioner is free to prove the said ground in accordance with law.
Urgent Photostat certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(Biswajit Basu, J.)