The revision petitioner/ husband filed H.M.O.P.No.41 of 2008 on the file of the Subordinate Court, Devakkottai to dissolve the marriage that had taken place between him and the respondent on 23.6.1996 on the ground of cruelty and desertion. It is also stated in the petition that a male child was born in the month of October, 1998 and during February, 2002 the respondent was pregnant and later she aborted the child. During the pendency of H.M.O.P., I.A.No.112 of 2008 was filed by the petitioner to direct the wife to produce the male child for undergoing D.N.A. test stating that the male child was not born to him. That petition was dismissed. Against that, this revision is filed.
2. It is stated in the affidavit that the male child was born to the respondent when there was no cohabitation between the petitioner and the respondent and therefore the male child was not born to the petitioner and to prove the same the male child and the respondent should be directed to undergo the D.N.A. test. The respondent filed counter stating that the male child was born on 29.10.1998 and after the lapse of 9 years, this petition is filed questioning the parentage of the male child. She further confirmed that the child was born to the petitioner.
3. It is contended by the learned counsel for the revision petitioner that in para 7 of the petition it has been stated that his wife aborted the second child and the wife conceived the second child when the petitioner was abroad and therefore, he suspected the parentage of the first child also and therefore to prove the parentage, the child and the wife should be submitted for the D.N.A. test.
4. The learned counsel for the revision petitioner relied upon the Judgement reported in 2007(1) L.W.318 (V.K.Bhuvaneswari v. N.Venugopal), wherein this Court held that the husband is entitled to have the D.N.A. test to be done on the child when the parentage is disputed. The learned counsel for the revision petitioner further relied upon the Judgement reported in 2005 (1) L.W.713 (Bommi & another v. Munirathinam ) wherein also this Court has directed the D.N.A. test to be conducted on the child when the parentage of the child is challenged.
5. I have given anxious consideration to the submissions made by the revision petitioner.
6. Admittedly, the petitioner filed the H.M.O.P. petition for dissolution of marraige on the ground of cruely and desertion. In the petition, the petitioner has not stated anything about the child nor he questioned the parentage of the male child. It is stated in para 4 of the petition that after marriage, on 25.7.1996 the petitioner went to Oman and the respondent was residing in the petitioner's house and the petitioner returned to India on 12.1.1998 and he was living with his wife the respondent herein and on 29.10.1998 a male child was born and that child is now at 9 years old. It is further stated in para 5 of the petition that on 24.3.1998 when the respondent was pregnant, the petitioner went to Oman and returned to India on 21.10.1999. From these allegations, it is made clear that during the relevant period when the wife became pregnant, the petitioner was living with her. Further, for the past 9 years, the petitioner has accepted the male child as his son and did not question the parentage and only after filing the application for divorce he filed petition to question the parentage. Admittedly, the petition was not filed on the ground of adultary.
7. Therefore, in my opinion, it is not open to the petitioner to question the parentage of the male child at this stage and also after lapse of 9 years. Further it is admitted by the petitioner that he came to India on 12.1.1998 and went back to Oman on 24.3.1998 and the child was born on 29.10.1998 and therefore when the wife conceived the male child, the petitioner was in India and lived with his wife and the same is admitted in Paras 4 and 5 of the petition. Therefore, the present attempt made by the petitioner for questioning the parentage of the child cannot be entertained.
8. In the Judgement reported in 2007(1) L.W.318 (V.K.Bhuvaneswari v. N.Venugopal), this Court has allowed the D.N.A. test to be conducted on the child as it is stated by the husband that the marriage was not consummated and the wife did not allow the husband to touch her and in that circumstances, the Court has directed the D.N.A. test to be conducted on the child.
9. In the Judgement reported in 2005 (1) L.W.713 (Bommi & another v. Munirathinam ), the minor child represented by mother filed the suit for maintenance and in that suit the parentage was challenged and this Court has allowed the application directing the child to undergo the D.N.A. test.
10. But, in this case the petition is for dissolution of marriage on the ground of cruelty and desertion. There is also an admission in the petition that the child was born during the lawful wedlock. Therefore, there is no need for determining the parentage of the child and the lower Court has correctly appreciated the pleadings and dismissed the application.
11. Hence, I do not find any reason to interfere with the order of the lower Court and the Civil Revision Petition is dismissed. No costs. Consequently, the connected M.P.No.1 of 2009 is also closed.
kr.
To The Sub Judge, Devakkottai.