BABITA DEVI ALIAS BABALI Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) The instant Cr. Revision is directed against the order dated 23.7.2009 passed by the Principal Judge, Family Court, Dhanbad in M.P. Case No. 68 of 2004 by which a petition filed on behalf of the petitioner No.1 Babita Dcvi Babali for the D.N.A test of her daughter i.e. Petitioner No. 2 Sejal comparing with the D.N.A of O.P. No.2 Adijya Chourasia to establish that he was her father was rejected.

(2.) The short fact related to the present case is that the Petitioner No. 1 is the legally married wife of the O.P. No. 2 Aditya Chourasia as their marriage was solemnized on 29.2.2000 in accordance with the Hindu rites and customs. The opposite party No. 2 Aditya Chourasia filed a Title Suit (M) No. 385 of 2005 under Section 11 of the Hindu Marriage Act which was concluded in the declaration of their marriage as nullity vide judgment dated 15.12.2004. Against that order the Petitioner filed First Appeal No. 16 of 2005 before this Court which was admitted on 4.1.2007 and the judgment passed on 15.12.2004 by the Principal Judge, Family Court, Dhanbad was stayed. It was further stated by the Petitioner No. 1 that after her marriage with the O.P. No. 2 Aditya Chourasia she started living at her matrimonial home and enjoyed conjugal marital life with her husband. From consummation of their marriage a female child was born namely Sejal (Petitioner No. 2) on 14.3.2001 in the Central Hospital, Dhanbad.

(3.) In the meantime, the Petitioner No. 1 with her daughter Sejal filed a petition claiming their maintenance and thereby proceeding under Section 125 Code of Criminal Procedure was initiated . The husband-opposite party No. 2 appeared in the said proceeding but in the causes shown by him he asserted that at no point of time he established sexual relation with the Petitioner No. 1 after their marriage since he had no access to her and she did not allow him for consummation and therefore, the female child (Petitioner No. 2) was not bom from him. He further asserted that prior to her marriage with him, the Petitioner No. 1 was married with another person namely Sanjay Kumar Gupta and the minor child was born from their wedlock to which the assertion was strongly controverter by the Petitioner No. 1 and she contended that the O.P. No. 2 was the father of her minor daughter and for proving the same she filed a petition for DNA test of her female child Sejal comparing her D.N.A with the D.N.A of O.P. No. 2 so as to establish the latter's paternity and for that the Petitioner No. 1 expressed her willingness to deposit the cost of such tests.