Geethavani vs J.N. Gurappa Reddy

A.V. Chandrashekara, J.—The present petition is filed by the petitioners of a case bearing C. Misc. 224/02 pending on the file of III Additional Principal Judge, Family Court, Bangalore. The respondent is the sole respondent in the said case.

The petition filed under Section 125 Cr.P.C. by these petitioners has been dismissed by a considered order dated 3.3.2010. It is this order which is called in question on various grounds.

The 1st petitioner-Geethavani claims herself to be the legally wedded wife of Gurappa Reddy. The 2nd petitioner is said to be the child born out of the wedlock of Geethavani and Gurappa Reddy. It is the case of the 1st petitioner that her marriage with the respondent was solemnized on 28.12.1988 at Tirupati as per Hindu customs and the 2nd petitioner was born on 28.12.1989 out of her cohabitation with the respondent. When the 1st petitioner was pregnant, the respondent shifted himself to Bangalore and the 2nd petitioner was admitted to Christ School. They had laid a claim for maintenance of Rs. 10,000/- p.m. on the ground that the respondent is working as regional manager in the Department of Industries and Commerce, Government of Karnataka, and has landed properties.

The respondent has emphatically denied all material averments and has called upon the petitioners to prove the contents of the petition. His stand before the trial court is that the petition filed is not maintainable either in law or on facts. The petitioner herself is examined as PW 1 and has got marked as many as 26 exhibits. The respondent has not adduced any evidence.

During the pendency of the petition, an application had been filed by the petitioners seeking DNA test for which the respondent had given no objection. On the strength of no objection, the application was allowed and the respondent was directed to deposit Rs. 15,000/- as cost. He did not deposit the amount. A request was made for extension of time. Such request was considered and the same was granted on payment of cost of Rs. 1,000/-.

Several grounds are urged in the present petition. Heard learned counsel for the parties.

After perusing the records, it is evident that the respondent herein did not deposit Rs. 15,000/- as cost towards conducting DNA test. In paragraph 27 of the impugned judgment at page 11, learned judge has observed that the petitioners themselves should have taken steps for getting DNA test conducted when the respondent failed to deposit the amount. Such observation is not sustainable. In the light of the respondent having not deposited the amount for conducting DNA test, and in the light of the assertion of the petitioners, an adverse inference as envisaged under Section 114(g) of the Evidence Act should have been drawn against him. Instead of doing so, adverse inference has been unnecessarily drawn against the petitioners as found in paragraph 27 of the judgment.

What is observed by the trial court is that the 1st petitioner knew very well about the marriage of the respondent with another lady and that has been suppressed. After going through the evidence of PW 1, it is evident that she came to know about the earlier marriage of the respondent 4-5 years later that too from the relatives of the respondent. It is not the case of the respondent that he was already married at the time when his alleged marriage with the 1st petitioner took place. The respondent has not taken any stand in his written objections that an earlier marriage was already subsisting on the date he allegedly married Geethavani on 28.12.1988 at Tirupati.

In the peculiar facts and circumstances of the case, the order passed by the trial court is not sustainable either in law or on facts. Hence the matter requires to be remanded for fresh consideration.

In the result, I pass the following order:

ORDER

I) The appeal is allowed. The judgment dated 3.3.2010 passed in C. Misc. 224/02 pending on the file of III Additional Principal Judge, Family Court, Bangalore, is set aside. The matter is remitted to the trial court for fresh consideration. The respondent is directed to deposit Rs. 15,000/- (rupees fifteen thousand only) before the trial court within one month from today.

II) The parties shall appear before the trial court 10.2.2015 and thereafter the trial court shall take all steps for DNA test and shall decide the matter afresh after DNA report is received.

III) Petitioners are at liberty to adduce additional evidence by examining themselves and also by examining any witness. Similarly the respondent is also entitled to adduce evidence on his behalf.

IV) The trial court to dispose of the matter as expeditiously as possible preferably within five months from 10.2.2015.

There is no Order as to costs.