ORDER 1. This second appeal at the instance of plaintiff is directed against the judgment and decree dated 25.6.2013 passed in Civil Appeal No.25-A/2012 by the Second Additional District Judge, Sagar; whereby, the judgment and decree dated 6.11.2009 passed by Civil Judge, Class II, Deori, District Sagar, dismissing the Civil Suit No.29-A/2008, has been affirmed. 2. Suit by the appellant/plaintiff was for declaration that the defendant No.2 being not his son, he is not entitled for maintenance and succession in his property. The suit has been filed on the ground, that the marriage between the plaintiff and respondent No.1 was solemnized thirty years ago and a daughter was born out of said wedlock. However, due to strain relationship, the marriage with respondent defendant No.1 dissolved as per custom prevalent, on 24.5.1985. That respondent/defendant No.1 thereafter started living separately. That appellant after dissolution of marriage with respondent /defendant No.1 performed second marriage. That a son was born to respondent/defendants No.1 on 13.1.1995. That defendant/respondent No.1 filed an application under section 125 of the Code of Criminal Procedure 1973 for maintenance and though appellant/plaintiff denied being natural father of respondent/defendant No.2. Yet, the Court by order dated 6.2.2006 directed for grant of maintenance allowance. The order dated 6.2.2006 was affirmed in Criminal Revision No.77/2006 decided on 18.12.2006. Where against, MCrC No.12204/2007 preferred by appellant/plaintiff was dismissed on 2.1.2008. Wherein it was observed that maintenance order passed under section 125 of the Code of 1973 will not bar the civil suit for declaration as to illegitimacy of respondent/defendant No.2. 3. Armed with the said liberty appellant/plaintiff filed the suit alleging that since respondent/defendant No.2 was born on 13.1.1995 when the respondent/defendant No.1 was already living separately from the appellant/plaintiff and there being no cohabitation, the defendant/respondent No.2 being illegitimate,the appellant/plaintiff did not owe any liability towards defendant/respondents No.1 and 2, nor they succeed to his property. 4. The defendant/respondents though did not file written statement but denied the plaint allegation in evidence. The trial Court framed three issues. (1-A) as to whether the plaintiff/defendants community whether dissolution of marriage is customarily permissible vide “Chodchuti”. (1-B) Whether a alleged dissolution of marriage dated 24.5.1985 was valid (2) as to whether defendant/respondent No.2 having born after dissolution of marriage would be entitled for maintenance and succession. 5. The trial Court framed three issues. (1-A) as to whether the plaintiff/defendants community whether dissolution of marriage is customarily permissible vide “Chodchuti”. (1-B) Whether a alleged dissolution of marriage dated 24.5.1985 was valid (2) as to whether defendant/respondent No.2 having born after dissolution of marriage would be entitled for maintenance and succession. 5. The trial Court on the basis of material evidence , on record returned a finding that appellant/plaintiff failed to prove that the custom of “Chodchuti “ ^^¼NksM+&NqV~Vh½** allegedly prevalent in his community. The trial Court found that appellant/plaintiff having performed the marriage with respondent/defendant No.1 as per Hindu Rites and Custom was bound by provision contained under section 2 of the Hindu Marriage Act, 1955. And in absence of any cogent and material evidence to establish that the custom of dissolution of marriage by Chodchuti ^^¼NksM+&NqV~Vh½** is prevalent in the appellant/plaintiff’s community held that provision of the Act of 1955 are applicable and the alleged dissolution of marriage being not in consonance with statutory provision, answered the issue No.1-A against appellant/plaintiff. 6. It is established law that custom has to be specifically pleaded and proved by leading cogent evidence by the person propounding such custom. In Yamanaji H. Jadhav v. Nirmala : (2002) 2 SCC 637 it has been held: “7.................we find that the Courts below have erroneously proceeded on the basis that the divorce deed relied upon by the parties in question was a document which is acceptable in law. It is to be noted that the deed in question is purported to be a document which is claimed to be in conformity with the customs applicable for divorce in the community to which the parties to this litigation belong to. As per the Hindu Law administered by Courts in India divorce was not recognised as a means to put an end to marriage, which was always considered to be a sacrament, with only exception where it is recognised by custom. Public policy, good morals and the interests of society were considered to require and ensure that, if at all, severance should be allowed only in the manner and for the reason or cause specified in law. Public policy, good morals and the interests of society were considered to require and ensure that, if at all, severance should be allowed only in the manner and for the reason or cause specified in law. Thus such a custom being an exception to the general law of divorce ought to have been specially pleaded and established by the party propounding such custom since said custom of divorce is contrary to the law of the land and which, if not proved, will be a practice opposed to public policy..........”(emphasis supplied) 7. The trial Court further observed that though respondent/defendant No.1 was living separately as the appellant/plaintiff had performed second marriage however, appellant/plaintiff failed to prove that he was not cohabiting with respondent/defendant No.1 where as on the contrary there is an evidence of DW-1 and 3 on record indicating that appellant/plaintiff and respondent/defendant No.1 were living in close vicinity and have cohabited.Respondent/defendant No.1 in her examination-in-chief and the cross examination categorically stated of appellant /plaintiff cohabiting with her. 8. These finding arrived at by the trial Court were further affirmed by the appellate Court by impugned judgment and decree. 9. That before the trial Court appellant/plaintiff filed an application for DNA test of defendant/respondent No.2.The said application was opposed by respondent/defendant. The trial Court by order dated 4.9.2009 rejected the application filed by the appellant/plaintiff for DNA test of defendant/respondent No.2 on the ground that it is plaintiff who has filed a suit for declaration that defendant/respondent No.2 is not his legitimate child and has to discharge the burden. The burden of proof cannot be shifted on the defendant No.2. The trial Court also recorded that respondent/defendant No.2 had refused to undergo a DNA test. The appellate Court also affirmed the rejection of the application by negativing the plea of appellant/plaintiff that in case of defendant/respondent No.2 denial for DNA test adverse inference not to be drawn. 10. After hearing learned counsel for the appellant and taking into consideration the finding arrived at by both the Courts below being based on cogent evidence brought on record, no case of perverse finding has been made out as would warrant interference. 11. There being no substantial question of law involved in the matter. Appeal fails and is dismissed at admission stage.