Anil Kumar Sinha, J. – The only issue that arises for consideration in this case is whether a direction should be given for conducting the DNA Test on one Khushi Kumari, a minor daughter of the respondent to ascertain her biological connection with the petitioner who denies that he is not Khushi Kumari’s biological father to prove the allegation of infidelity brought by the petitioner against the respondent in a Divorce Case. The petitioner seeks to establish that Khushi Kumari was born of illicit relationship between his wife and another person. The paternity of the child is not a question in this case, thus, is only incidental to the main issue which pertains to whether or not the petitioner’s wife has been faithful to him. To substantiate the ground of adultery, on which the divorce is being sought along with other grounds, the case of the petitioner is that Khushi Kumari is the living example of adultery of his wife. The petitioner has not only pleaded that he had no contact with his wife/respondent at the time she conceived i.e., in 2005, but also claims that he is incapable of fathering a child and had been so in the entire course of marriage.

2. The petitioner has filed the present case for setting aside the order dated 15.02.2017 passed in Matrimonial Case No. 833/2010 by the Principal Judge, Family Court, Patna whereby the prayer of the petitioner to conduct DNA Test of the female child and the petitioner to ascertain as to whether the petitioner is the biological father of the child, has been rejected.

3. The brief fact giving rise to the present petition is that the marriage of the petitioner was solemnized with the respondent as per Hindu rites on 05.06.1987. The petitioner was in Indian Army from where he retired from his service on 01.01.2005. The petitioner sent his brother to the respondent’s maternal home, where she had been residing at the time of petitioner's retirement, to bring her back to her matrimonial home but the respondent refused to return. The petitioner made several efforts to bring his wife back but the same went in vain. On 29.06.2007, the respondent/wife filed a Complaint Case No. 715-C/2007 in the court of Judicial Magistrate 1st Class, Biharsharif, Nalanda against the petitioner and his relatives including one Vibha Devi with whom, the respondent claims, the petitioner performed second marriage, for the offence punishable under Sections 498A, 323, 379, 307/34 of the IPC.

4. The petitioner preferred anticipatory bail application before this Court bearing Cr. Misc. No.37124/2008, in which, the petitioner was granted privilege of provisional bail on his undertaking that he was ready and willing to resume matrimonial relations with his wife/respondent. The provisional bail was to be confirmed in case his wife returned to the matrimonial home with the settlement of dispute or if the wife was found to be unreasonable. Order dated 23.06.2009 passed in Cr. Misc. No. 37124/2008 has been annexed as Annexure-1 to this petition.

5. On 15.12.2009, the petitioner filed an application in the court of Judicial Magistrate 1st Class, Biharshaif, Nalanda for confirmation of his provisional bail. In his petition, the petitioner has stated that he has always shown willingness to take Pushpa Devi i.e., respondent/wife to her matrimonial home but she is not willing to go to her matrimonial home. On several dates, the petitioner attempted to take his wife back to her matrimonial home but she did not accompany the petitioner. The provisional bail granted to the petitioner was confirmed by the learned Judicial Magistrate 1st Class, Biharsharif, Nalanda vide order dated 15.12.2009.

6. In 2010 i.e., 18.12.2010, the petitioner filed a Matrimonial Case No. 833/2010 before the Principal Judge, Family Court, Patna under Section 13(1), (ia), (ib) of the Hindu Marriage Act, 1955 for dissolution of marriage stating therein that his wife had been leading an adulterous life which would be evident by birth of a female child given by r