- (1.) THE petitioner husband's suit under section 12 of the Hindu Marriage Act, 1955 for declaring as nullity his marriage with the opposite party no. 1 and alternatively under section 13 of the said Act for decree of divorce is now pending in the Court of the 2nd Additional District judge, Howrah. The petitioner has inter-alia alleged that his consent to his marriage with the opposite party no. 1 was obtained by force and fraud and that the respondent no. 1 was at the time of the marriage pregnant by some person other than the petitioner. He has also denied that he was the father of the minor child born to the opposite party no. 1.
(2.) BY the order complained of the learned Additional District Judge, 2nd Court, Howrah, has rejected the application of the petition husband for appointment of Pathologist for the purpose of examination and test of his' blood as also the blood of the said minor child. The learned Additional District judge was of the view that it was for the petitioner to prove his allegations in his petition under sections 12 and 13 of the Hindu Marriage Act, 1955 and he was not inclined to allow the prayer of the petitioner for taking blood sample to determine the paternity of the minor child.
(3.) IN our view, the learned Additional District Judge acted illegally and with material irregularity in rejecting the aforesaid application of the petitioner. The learned Additional district Judge was not quite correct when he had observed that sections 11 to 28 of the Hindu Marriage Act, 1955 formed a complete code by themselves and that no external evidence like blood test ought to be allowed to interfere with the opinion of the court. The Hindu Marriage Act is not exhaustive in the matter of procedure to be followed by the court in adjudicating petitions under sections 12 and 13 of the said act. Section 2 1 of the said Act has laid down : "subject to the other provisions contained in this Act and to the said Rules as the High Court may make in this behalf, all proceedings under this Act shall be regulayed as far as may by the Code of Civil Procedure 1908" . The matrimonial proceedings before the district courts are thus to be regulated by ordinary rules of procedure including procedure including those relating to the provisions for recording evidence contained in the Evidence Act. In the above view, in accepting or rejecting a prayer for obtaining expert opinion regarding blood test, the court would be generally guided by the principles embodied in section 45 of the Evidence act.;