JUDGMENT :

Uday Kumar, J. - The matter has appeared in the list today in order to ascertain whether application for mutual divorce has been filed by the parties before the learned District Judge, Alipore and if so, if it has been disposed of by the learned District Judge, in the meantime.

2. However, during the pendency of this appeal instead of filing an application the respondent/husband has filed the instant application for modification or variation of the order dated 1st May, 2023. The appellant however, was agreeable to file an application for mutual divorce. On 1st May, 2023 on consideration of the DNA report we invited the parties to express their views and in response the learned Counsel for the parties had agreed to file an application for mutual divorce before the learned District Judge, Alipore within two weeks from date that is 1st May, 2023. Both the parties had admitted that the marriage has irretrievably broken and is completely unworkable. Now with a view to resile from the views expressed by the respondent no. 1 an application has been filed on 15th May, 2023 on a specious plea that the applicant had never consented for mutual divorce and a prayer for modification has been made in this application.

3. The applicant by filing this application wanted to resile from the submission made on behalf of him that applicant is also inclined to file an application for mutual divorce.

4. We distinctively remember that the date when the order was passed the willingness of the applicant to file an application for mutual divorce was expressly conveyed to Mr. Sandip Ghosh learned Advocate representing the respondent no. 1/ applicant and it was on the basis of such instruction Mr. Ghosh has made such submission. However, choice was given to the parties to file an application for mutual divorce as the appellant/respondent No.1 had realized that the allegation of adultery is clearly disproved by the DNA report and this might have an adverse consequence on the merits of the appeal.

5. Accordingly, we propose to decide the appeal on merits.

6. It was the positive case of the husband that he never had any physical relation with the wife and the child was born not by his loin but due to his wife's adulterous relationship with the respondent No.2. Initially, the wife had refused the DNA test, the reason being that she did not want her privacy to be used injudiciously and invaded at the whims of the respondent No.1. She has all throughout contended and maintained a stand that marriage was consummated and they had conjugal relationship and the child was born within the wedlock.

7. In the appeal, the wife has all throughout contended that they are the biological parents of the child, however, this time she agreed to have the DNA test conducted at the instance of the husband.

8. In an application filed by the husband being CAN 829 of 2020 on 10th February, 2020, a Coordinate Bench passed the following order:-

"The first respondent in this appeal has prayed for an order for conduct of a medical test through DNA profiling to ascertain the paternity of Sweta Roy claimed by the appellant to have been born to the parties through the wedlock. The respondent has throughout alleged before the court below and us that the child is not his but is fathered by Satadal Singha. the proforma respondent herein.

The learned judge of the court below in the judgement and decree under appeal dated 30th April 2018 had held t