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2011 DIGILAW 1099 (RAJ)

Hemant Purohit v. Indu Bala

2011-05-23

R.S.CHAUHAN

body2011
JUDGMENT 1. - The petitioner is aggrieved by the order dated 10.11.2009, passed by the Judge, Family Court, Udaipur, whereby while denying the maintenance to respondent No.1, Smt. Indu Bala, inter alia on the ground that she is living in adultery, the learned Judge has granted a maintenance of Rs. 1,500/- per month to respondent No.2, Tanmay Purohit. 2. It is the case of the petitioner that even during the subsistence of the marriage, while he and his wife lived together, his wife had developed intimate relationship with one Mahesh @ Deepak Chawla, who was a tenant in the building where the couple was residing. It is further his contention that although Tanmay Purohit, respondent No.2, was born during the subsistence of the marriage, but he claimed that the child is not his. 3. On the other hand, Mr. Marinmay Battmewar, the learned counsel for the respondents, has contended that since the child was born during the subsistence of the marriage, the presumption under Section 112 of the Evidence Act with regard to the legitimacy of the child should be drawn in favour of the respondent No.2. The respondent No.1 has nowhere denied the allegation of the petitioner with regard to her adultery behaviour, but has pleaded that in fact the child happens to be a legitimate one born out of the wedlock. 4. Heard the learned counsel for the parties and perused the impugned order. 5. According to Section 112 of the Evidence Act, in case a child were born during the subsistence of the marriage, it is a conclusive proof of the legitimacy of the child. If the petitioner wanted to rebut the said presumption, it was for him to offer that he is willing to undergo a DNA test. The learned counsel for the petitioner does state that the petitioner had, in fact, moved an application for DNA test. However, the same was rejected. But in order to work out the ticklish question with regard to the legitimacy or illegitimacy of the respondent No.2, it is essential that a DNA test be done. In case the legitimacy is not decide, it may be unfair and unjust to burden the petitioner with the responsibility of maintaining the respondent No.2. 6. However, the same was rejected. But in order to work out the ticklish question with regard to the legitimacy or illegitimacy of the respondent No.2, it is essential that a DNA test be done. In case the legitimacy is not decide, it may be unfair and unjust to burden the petitioner with the responsibility of maintaining the respondent No.2. 6. Hence, this Court has on other option, but to quash and set aside the judgment dated 10.11.2009 and to remand the case back to the learned trial court and to direct the parties to appear before the learned trial court on 05.07.2011. The learned Judge is directed to ensure that a DNA test is done as expeditiously as possible and to re-decide the case with regard to the maintenance which the petitioner is liable to pay to the respondent No.2. 7. With these observations, this petition is, hereby, disposed of.Petition Disposed of. *******