SUNITA AGARWAL, J. - (1.) Heard learned counsel for the petitioner. By means of the present petition, the petitioner is challenging the order dated 10.5.2016 passed by the Principal Judge, Family Court, Court No.3, Sant Kabir Nagar in Case No. 142 of 2014 (Satya Pal Yadav v. Smt. Sandhya Yadav), whereby application 18 Ga moved by the petitioner/plaintiff for conducting DNA test of child born to Smt. Sandhya Yadav his wife was prayed for. This application was rejected by the court below with the categorical observations that the ground for conducting DNA test taken in the application are that there had been no cohabitation between the petitioner and his wife after marriage i.e. since after 15.5.2006 and the marriage has not been consummated. The child was not fathered by the petitioner. The allegations of infidelity have been levelled against his wife by the petitioner as a ground for divorce under Section 13 of The Hindu Marriage Act.
(2.) The contention is that though marriage was solemnized between the petitioner and respondent on 15.5.2006 but Bidai (Gauna) Ceremony took place on 15.4.2013 when the respondent for the first time came to her matrimonial home. During this period, the respondent was in illicit sexual relationship with her brother-in-law. This fact came to knowledge of petitioner and his family on the date of Bidai (Gauna) as the respondent was pregnant for about 3-4 months. The defendant was also not inclined to stay with the petitioner and returned to her parental house on 22.5.2013. The petitioner and respondent are living separately since then. The defendant gave birth to a child within 5 months of the date of Bidai (Gauna) i.e. 15.4.2013.
(3.) A specific query was made from the learned counsel for the petitioner as to the stage of the suit and the evidence led by the plaintiff. It is admitted to the learned counsel for the petitioner that the plaintiff's evidence has not been concluded till date. The question as to whether the petitioner resided with his wife or visited her after marriage i.e. 15.5.2006 is a question of evidence. Whether there was any cohabitation between the parties after the marriage was solemnized is also required to be taken into consideration. Whether wife was deserted or she had left her matrimonial home on her own is also one of the question which is to be determined on the evidence of the parties. Only after the petitioner is able to show a prima facie case of infidelity of his wife by leading evidence on the issues of marriage, relationship between the parties and the birth of child, the question would arise as to whether DNA test of the child born to Smt. Sandhya Yadav is required.;