- (1.)Challenging the order of learned Judicial Magistrate II, Gobichettipalayam, passed in C.M.P. No. 772 of 2009 in M.C. No. 10 of 2007 on 27.07.2009, the present revision has been filed.
(2.)Petitioner and the first respondent are husband and wife and the second respondent is their son. Due to misunderstandings between them, the first respondent left the matrimonial home. The petitioner has filed H.M.O.P. No. 54 of 2005 on the file of learned Sub-ordinate Judge, Mettur, seeking restitution of conjugal rights and later, the same was withdrawn by the petitioner. Thereafter, the petitioner filed H.M.O.P. No. 106 of 2007 on the file of learned Sub-ordinate Judge, Mettur, seeking divorce. Disputing the parentage of the second respondent son, the petitioner has filed I.A. No. 91 of 2008 in H.M.O.P. No. 106 of 2007 seeking conduct of a DNA test and the same was dismissed under orders dated 12.11.2008. Challenging the same, the petitioner filed C.R.P. (PD) No. 4122 of 2008 before this Court, which was dismissed under orders dated 12.01.2009 recording the memo filed by the first respondent informing her willingness for divorce and granting liberty to the petitioner to raise his contentions in other proceedings pending between them. The first respondent has filed M.C. No. 10 of 2007 on the file of learned Judicial Magistrate II, Gobichettipalayam, seeking maintenance in a sum of Rs. 5,000/- per month for her son. Therein, the petitioner has filed C.M.P. No. 772 of 2009 seeking conduct of DNA test towards determining the parentage of the child. By the order under challenge, the Court below dismissed such petition.
(3.)It is the contention of learned counsel for petitioner that the first respondent/wife had conceived even before the marriage between the petitioner and the respondent on 04.03.2004 and the conduct of a DNA test was essential to prove the petitioner's case. Learned counsel relied on the judgment of the Apex Court in Sharda vs. Dharmpal, 2003 2 CTC 760.