DATED

Digitally signed by

PADMAVATHI B K

Location: HIGH

COURT OF

KARNATAKA

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15.07.2021 PASSED ON I.A.NO.3 IN CRL.MISC.NO.28/2016,

PASSED BY THE CIVIL JUDGE AND JMFC AT SORABA, THE

COPY OF WHICH HAS BEEN PRODUCED HEREWITH AND

MARKED AS ANNEXURE-A.

THIS PETITION COMING ON FOR PRELIMINARY HEARING,

THIS DAY, THE COURT MADE THE FOLLOWING:

ORDER

The petitioner, the husband of the respondent, calls

in question an order dated 15.07.2021, passed on I.A.No.3

filed in Crl.Misc.28/2016, by the Civil Judge and JMFC,

Soraba, whereby, the Court rejects an application filed by

the petitioner for conduct of DNA test doubting the

legitimacy of the child.

2. Heard Sri Deepak S.Shetty, learned counsel for

the petitioner and Sri B.C.Parameshwaraiah, learned

counsel for the respondent.

3. Facts germane for consideration of the present lis

are as follows:

The petitioner and the respondent get married on

06.06.2011. From the wedlock, a child is born on

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17.02.2012. It transpires that on 26.10.2015, the wife

was caught having an alleged illicit relationship with one

Sunil. Based upon that, the petitioner husband seeks to

register a complaint against the said Sunil. It is the

averment of the petitioner that after receiving an apology

letter, the complaint comes to be closed. Based upon this

incident, the petitioner causes a notice upon the

respondent seeking divorce on the ground of adultery.

The respondent 3 wife as a counter to the allegations

made in the petition seeking divorce and registers a crime

in crime No.2/2016 against the petitioner and his family

members for offences punishable under Section 498A and

506 of the IPC.

4. Not stopping at that, the respondent wife files an

application before the concerned Court invoking the

provisions of the Protection Of Women From Domestic

Violence Act, 2005 (for short 8the Act9). In the said

application, the respondent wife seeks maintenance from

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the hands of the petitioner to herself and their son. The

petitioner files objections contending that the wife was

indulged in illicit relationship and therefore, the child is not

his and a DNA test has to be conducted. It transpires that

the wife during the cross-examination, has given her

consent for such examination. On 26.08.2017, an

application seeking reference of the child along with the

petitioner for DNA test is filed by the husband. The

respondent 3 wife files objections to the application. The

learned Magistrate rejects the interlocutory application

seeking analysis or a DNA test upon the petitioner 3

husband and his child. It is this rejection that drives the

petitioner to this Court in the subject petition.

5.

Learned

counsel

for

the

petitioner

would

vehemently contend that the child was born at 8 months

after the marriage, which is highly impossible and this is

happened

only

because

the

respondent

had

illicit

relationship earlier. Though the issue is raised after three

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years, since she was caught having such relationship it is

presumed that the child is not his and therefore, a DNA

test was imperative. Learned counsel for the petitioner

has placed reliance upon the judgment of the Apex Court

in the case of PRIYANKA JANARDHAN PATIL VS.

JANARDHAN RAGHUNATH PATIL in Special Leave to

Appeal No.5554/2020, dated 04.04.2022.

6. On the other hand, learned counsel for the

respondent would refute the submissions to contend that

the offence so alleged is adultery and that cannot be

treated as crime in terms of the judgment of the Apex

Court in the case of JOSEPH SHINE VS. UNION OF

INDIA reported in (2019) 3 SCC 39 and can best be a

ground for dissolution of marriage, which would mean a

civil wrong and to presume that the child is not his, is too

far fetched thought as it is made after three years of

marriage, only to get over any order of maintenance that

is likely to be passed against the petitioner.

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7. I have given my anxious consideration to the

submissions made by the learned counsel for both the