Decided on November 17,1993

MATHEW Appellant

Cited Judgements :-



- (1.)The Miscellaneous Petition has been referred to a Division Bench by the learned single Judge by order dated 15-3-1993! The main petition, OP 13049 of 1991 is a petition filed on 13-12-1991 in the High Court by the petitioner, Mr. A.T. Mathew against his wife Mrs. Annamma Mathew for declaring their marriage dated 28-10-1979 as null and void, under S.18 and 19 of the Indian Divorce Act, 1869. Earlier, the same petitioner had filed OP 153 of 1986 in the District Court, Kottayam under S.10 of the Indian Divorce Act, 1869 for divorce. The said OP has since been transferred to the High Court and has been re-numbered as OP 14997 of 1992.
(2.)CMP 20290 of 1992 is a petition filed by the petitioner husband in the newly filed (in the High Court) OP 13049 of 1991 for declaration of the marriage as nullity under S.18 and 19. The petitioner and the respondent were married on 28-10-1979. The substantive allegation now made in 1991 is that on the same night, the respondent wife told the petitioner husband that she was pregnant and it was through one James. So, it is said, the petitioner refrained from sex with her and, therefore, there was no occasion for the respondent becoming pregnant though the petitioner. It is then stated that recent - discoveries have made it possible to find out whether a particular child is the son of its putative father. It is called DNA finger-printing. The Centre for Cellular and Molecular - Biology at Hyderabad, it is stated, has developed a test which, according to one scientist Mr. Lalji Singh, is absolutely fool-proof: For the purpose of the said test 10 ml each of the blood of the putative father, the mother and the child are to be taken and preservative added and identified and then handed over for analysis under orders of Court. The cost of analysis is said to be Rs.1,200/- for every 10 ml of blood. Petitioner states that he is prepared to bear the expenditure for the tests and also for travel, transportation, evidence etc. He states that the test will reveal that the petitioner is not the father of the child (now 13 years old) delivered by the respondent. Hence the respondent should be directed to produce the child born on 11-7-1980 before Court and that, under directions of the Court, the blood sample of the child and the respondent must be taken and then the same, 'alongwith petitioner's blood sample must be sent to the above said institution at Hyderabad.
(3.)This Petition is opposed by the respondent for various reasons. It is pointed out that the petitioner and respondent were married solemnly on 28-10-1979 and that a male child was born to this wedlock on 11-7-1980 and the petitioner is the father of the child. The petitioner filed OP 153 of 1986 in District Court, Kottayam, admitting the factum of a valid marriage and after stating that the respondent confessed oh the very first night of having contact with her cousin, one James, the petitioner admitted that' to save faces, the first respondent was allowed to stay at the house of the petitioner for some time'. It was stated in OP 153 of 1986 by the petitioner that after 19-7-1980, the respondent was having intimacy with several persons and that from 1984, she was living as mistress of one Thankachan (second respondent in that OP) and was guilty of adultery and, therefore, the marriage should be dissolved. It is pointed out in the counter affidavit that James was out of India from 13-5-1979 to 23-7-1980 as is clear from his Passport, that the petitioner and respondent lived together, and later she became pregnant. The child was delivered 274 days after the last menstruation and 259 days after marriage. The petitioner deserted the respondent and the child on 19-7-1980 and has contracted a marriage with another. The respondent filed M.C.No.6 of 1982 (MC 39/84) before the Judicial First Class Magistrate, Kottayam for maintenance. In that case, the Magistrate held that the child was born to the petitioner and the respondent after their marriage. Crl.R.P.45 of 1985 filed by the petitioner was dismissed by the District Court, Kottayam. The respondent filed O.S 292 of 1983 before the Sub Court, Kottayam for return of Streedhanam and past maintenance. In the written statement there, petitioner had no case that the respondent had made any confession (nor was such a case set up in the M.C. case. There the case was that he came to know of the pregnancy after four months). There the petitioner raised this very question. The suit was decreed and the decree was affirmed by the High Court in A.S.216 of 1986 dated 23-6-1986 and it was categorically found that the child was legitimate. S.112 of the Evidence Act was applied. The District Court and the High Court also accepted that the petitioner was keeping a mistress by name Moly through whom he be got two children. The petitioner was made liable for maintenance. In divorce OP 153 of 1986 for divorce, the petitioner had no case that his consent for the marriage was obtained by fraud or force.

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