V.G. Jayasutha vs T. Sivamani

R. Mala, J.—This Civil Revision Petition has been filed against the order dated 11.08.2012 made in I.A. No. 1715 of 2010 in O.P. No. 1042 of 2010 on the file of the III Additional Family Court, Chennai, allowing the husband/respondent herein to visit the child S.J. Sukanya @ S. Prarthana on 2nd Saturday of every month at Children Center, Family Court Premises, Chennai, from 11 a.m. to 12.00 p.m., commenced from the Month of September 2012.

The learned counsel appearing for the revision petitioner has submitted that the marriage between the revision petitioner and the respondent herein was performed on 22.02.2007 and a child was born on 18.11.2007 and the wife/revision petitioner herein left from the matrimonial home along with her child on 12.07.2009 and the husband/respondent herein filed O.P. No. 3069 of 2009 for restitution of conjugal rights along with I.A. No. 4578 of 2009 in O.P. No. 3069 of 2009 to visit the child and subsequently, he withdraw O.P. No. 3069 of 2009 and after withdrawing O.P. No. 3069 of 2009, he filed another O.P. No. 1042 of 2010 for divorce on the ground of cruelty and he also filed I.A. No. 1715 of 2010 in O.P. No. 1042 of 2010 to visit the child and during the pendency of I.A. No. 1715 of 2010, he filed another I.A. No. 1213 of 2011 in O.P. No. 1042 of 2010 to send the child for DNA Test by questioning the paternity of the child, which was subsequently withdrawn by him. The learned counsel appearing for the revision petitioner has taken me to paras 3, 4, 10 of the affidavit filed in I.A. No. 1213 of 2011 and submitted that the husband/respondent herein made an allegation against his wife stating that she is having an illegal affairs with one Arun Vijayakumar, who is none other than the son of the paternal aunt and disputed the paternity of the child, but, the trial Court has not considered the said aspect and allowed the application. She has further submitted that once the paternity of the child is disputed, the husband is not entitled to visit the child. Hence, she prayed for setting aside the order of the trial Court.

Resisting the same, the learned counsel appearing for the respondent has fairly conceded that the husband/respondent herein filed O.P. No. 3069 of 2009 for restitution of conjugal rights and he withdrew the same and thereafter, he filed another O.P. No. 1042 of 2010 for divorce and he also filed I.A. No. 1715 of 2010 in O.P. No. 1042 of 2010 to visit the child and during the pendency of I.A. No. 1715 of 2010, he filed another I.A. No. 1213 of 2011 in O.P. No. 1042 of 2010 to send the child for DNA Test by questioning the paternity of child and he subsequently withdrew the same. The trial Court has allowed the petition permitting the husband/respondent herein to visit the child on 2nd Saturday of every month at Children Center, Family Court Premises, Chennai, from 11 a.m. to 12.00 p.m. However, no prejudice would be caused to the wife/revision petitioner herein. Hence, he prayed for dismissal of this revision petition.

I have considered the rival submissions made by both sides and perused the records.

The marriage between the spouse was performed on 22.02.2007 and the child was born on 18.11.2007. Since difference of opinion arose between the spouse, they were separated and the wife/revision petitioner herein along with her child left from the matrimonial home on 12.07.2009. Admittedly, the husband filed O.P. No. 3069 of 2009 for restitution of conjugal rights and he also filed I.A. No. 4578 of 2009 in O.P. No. 3069 of 2009 to visit the child. Since he withdrew O.P. No. 3069 of 2009, consequently, I.A. No. 4578 of 2009 was disposed of and thereafter, he filed another O.P. No. 1042 of 2010 for divorce on the ground of cruelty, which is now pending and he also filed I.A. No. 1715 of 2010 in O.P. No. 1042 of 2010 to visit the child. During the pendency of I.A. No. 1715 of 2010, he also filed I.A. No. 1213 of 2011 in O.P. No. 1042 of 2010 to send the child for DNA Test by disputing the paternity of child, but, subsequently, he has not pressed I.A. No. 1213 of 2011.

At this juncture, this Court has to decide whether the husband/respondent herein is entitled to visit the child?

According to the learned counsel appearing for the revision petitioner, once the husband has disputed the paternity of child, he is not entitled to visit the child.

It is true that once the husband disputed about the paternity of child, what right he is having to visit the child? In the present case, the trial Court has given the visitation right to the husband/respondent herein to visit the child on 2nd Saturday of every month at 11.00 a.m. to 12.00 p.m. Furthermore, the husband/respondent herein filed another application to send the child for DNA test disputing the paternity of child, by making an allegation against his wife stating that she is having an illegal affairs with one Arun Vijayakumar, who is none other than the son of the paternal aunt, when the application filed for visitation right is pending and it shows the malafide intention of the husband/respondent herein to abuse his wife that he has gone to the extent of disputing the paternity of child. The child was born on 18.11.2007 through the subsisting marriage between the revision petitioner and the respondent herein.

During the pendency of I.A. No. 1715 of 2010 in O.P. No. 1042 of 2010, claiming visitation right over the child, the husband/respondent herein filed I.A. No. 1213 of 2011 in O.P. No. 1042 of 2010 to send the child for DNA Test, by disputing the paternity of child, which shows that he is not having love and affection towards the child and only with a view to harass his wife, he filed the application for visitation right. But, the trial Court has not considered the above aspect in proper perspective that once the husband has disputed the paternity of child, how he can be entitled to have visitation right. Hence, the trial Court has not considered the application in proper perspective and the impugned order passed by the trial Court is liable to be set aside.

Accordingly, this Civil Revision Petition is allowed. No costs. Consequently, connected miscellaneous petition is closed.