IN THE COURT OF FAMILY COURT JUDGE, SALEM F C OP 72/06

M.Senth ! A"#$h%n&&&&&&&&&&&&&Pet t 'ne( )* N.Ch t(% &&&&&&&&&&&&&&&..I*t (e*+'n$ent S.S#,(%"%n &&&&&&&&&&&&&.2n$ (e*+'n$ent -RITTTEN ARGUMENT FILED .Y THE PETITIONER
1. The Petitioner filed main petition FCOP 72/2006 against his wife, the 1 st respondent and the co respondent who is the h!s"and of 1st respondent#s sister for relief of di$orce on the gro!nds that 1st respondent is li$ing in ad!lter% in co respondent &/' section 1()i* for ad!ltr% and section 1()ia* cr!elt% of +ind! ,arriage -ct. 2. From the inception of the marriage "etween them, the 1st respondent stated irrationall% and adopting a totall% hostile attit!de towards petitioner and his famil% mem"ers. 1st respondent was in the ha"it of gi$ing $ent to her anger sa%ing that# lost her life . and decr%ing petitioner as old man in the presence of others. (. The Petitioner too/ the 0st respondent to 1ittal in 2!l% 2002, ,angalore, where the petitioner wor/ing as scientist in the Central Plantation Crops 3esearch 0nstit!te, 3egional 'tation, 1ittal, when the% started to 1ittal, the 1st respondent insisted on her sister and her sister h!s"and 2nd respondent sho!ld also accompan% with them to 1ittal. 4hen petitioner protested to this, 1st respondent "ecame $iolent and pic/ed !p 5!arrel with the petitioner.

6. 0n the matrimonial home at 1ittal, the 1 st respondent cond!ct and "eha$ior, towards petitioner "ecome are more intolera"le and agoni7ing. The 1st respondent !sed to contact her sister and sister#s h!s"and o$er phone and tal/ them ho!rs together and when petitioner 5!estioned her a"o!t what she was tal/ing o$er phone with them8 she will ne$er answer the petitioner 5!estion. +ere she "ecomes pregnant and a da!ghter is "orn on 26.9.200(. 'he ill treated the child also "eca!se of her terri"le cr!el treatment inflicted on petitioner he s!ffered heart attac/ on 6 12 200( and petitioner sta%ed at 'alem ):;. <o 6*. +ere 1 st respondent.s sister and her sister#s h!s"and !sed to $isit o!r ho!se and on one occasion d!ring worldl% 5!arrel, 1 st respondent.s sister tried to sta" the petitioner with /nife. On 21 ( 200( petitioner was compelled to lodge a police compliant at Omal!r Police 'tation, 'alem ):;.no 2*. -fter, this 1 st respondent went to li$e with her sister and sister#s h!s"and at oml!ar where the 2 nd respondent resided in the =o$ernment :ngineering College >!arters from 6 12 200( till the 2 nd wee/ of 'eptem"er 2006. 4hen 1st respondent came to 1ittal on second wee/ of 'eptem"er 2006 , the 1 st respondent diagnosed as pregnant. The Petitioner had no access to her from 6 12 200( till the 2 nd wee/ of 'eptem"er 2006. The 'econd male child was "orn on 07 09 2009. 9. The 0.- <o 1?@ /2006 was filed for A<- paternit% test for 2 nd male child to pro$e that petitioner is not "iological father .The 2nd male child "orn o!t of ad!ltero!s life "etween 1 st respondent and 2nd respondent. For the a"o$e, petitioner pra%ed in this +on#"le co!rt to order A<- test among petitioner, 2nd male child, 1st respondent and 2nd respondent. The 1st respondents and 2nd respondent filed separate co!nters. Both 1 st respondent and 2nd respondent not willing to !ndergo A<- test. :$en tho!gh, 2nd respondent made o"Cection to A<- test among petitioner, 2nd male child 1st respondent. The a"o$e 0.- petition was dismissed. The a"o$e 0 - petition was dismissed that A<- order co!ld not ordered on "asis of s!spicion.B!t, the said interloc!tor%

petition was dismissed "efore the entire trial was started and at stage of dowr% case pending "efore the 2!dicial ,agistrate <o.6,'alem. 6. The petitioner wo!ld s!"mit that he is not "iological father of 2 nd male child. The 2nd male child was "orn o!t of ad!ltero!s life "etween 1 st respondent and 2nd respondent. &nder 'ection 112 of the 0ndian :$idence -ct there is a pres!mption of the paternit% of the child8 it is re"!tta"le and onl% e;emption is that if non access is pro$ed. :$idences are add!ced pro$ing no access. 0t ma% "e arg!ed that A<- test was not done and therefore the iss!e was not decided properl%. A<- test cannot "e ordered as a matter of co!rse and it has "een ca!tioned "% the ape; co!rt that test sho!ld not "e ordered as a ro!tine affair. +ere the marriage is admitted. The dowr% harassment made against petitioner and his famil% mem"ers "% 1 st respondent to conceal and co!nter"last the ad!ltero!s life "etween 1st respondent and 2nd respondent and 2nd male child "orn o!t of ad!ltero!s life "etween 1st respondent and 2nd respondent. 7. The 0st respondent 341 in the cross e;amination that there is no e$idence for all shriwarden materials. B!t there is no doc!mentar% proof for said gi$en mone%. 0t is false that the 29 so$ereigns gold petitioner /ept on co operati$e "an/ and there is no doc!mentar% e$idence. ,ere allegation ma% "e reCected. 3w2 3espondent admitted that there was phone at 1ittal. 0t pro$ed that 1st respondent and 2nd respondent contin!o!sl% tal/ o$er phone at ho!rs together. 0t is !tter false that "oth "rother and sister are !nemplo%ed and the% treated the 1 st respondent as sla$e respondent falsel% implicate f!rther that the% ordered for coo/ing and washing the cloths. 0n fact, she li$ing in seperateho!se and a ser$ent maid for her. @. The petitioner in cross e;amination told matrimonial home at 1ittal,1st respondent o$er phone tal/ ho!rl% together.342 the first respondent father admitted that there was phone at 1ittal. 0t pro$ed that 1st respondent and 2nd respondent contin!o!sl% spea/ing o$erphone.

?. P41 petitioner in the cross e;amination told that petitioner had no access with 1 st respondent from 21 ( 2006 to till 'eptem"er 2006 and the 1st respondent has gone to sister home after 1st respondent#s tried to sta" with /nife on 21 0( 2006.The 1st respondent li$ing in ad!lter% with sister#s h!s"and from 21.0(.206 to second 'eptem"er 2006 P42 petitioner "rother in the cross e;amination told that petitioner had no access with 1st respondent from 2( ( 2006 to till 'eptem"er 2006. 10.341 1st respondent in the cross e;amination told that petitioner denied second male child "orn o!t of ad!lter% with 2nd respondent. B!t ,1st respondent made o"Cection for A<- test. 34( 2nd respondent o"Cected A<- paternit% test "etween petitioners, second male child and 1 st respondent "eca!se it made harassment to him. 2nd respondent told that, he, now, read% for A<for paternit% test. The inconsistent statements of 2nd respondent showed that 2nd respondent conceal ad!lter% and "irth second child "etween 1st respondent and 2nd respondent. 11. Oral e$idences of 1st respondent and 1st respondent#s father on allegation petitioner.s "rother not corro"orate with affida$its. The inconsistent oral e$idences showed that the allegation made on petitioner#s "rother are totall% !tter false. On "asis of oral and doc!mentar% e$idences, it co!ld "e said that the allegations on petitioner#s "rother was fo!nd to "e false. Aate of alleged incident not mentioned in the affida$it and also oral e$idences are indicated same. 0n fact, P42 petitioner#s "rother was wor/ing as a 'enior 3esearch Fellow at Di$e stoc/ 3esearch 'tation. Eatt!pa//am from @.10.2002 to 2?.11.2006. 1st respondent made compliant to police did not mention allegations on petitioner#s "rother harassment. 'ftertho!ght she made

allegation.2!dgment of 2,6 co!rt 'alem point o!t that 1st respondent ga$e clean chit to petitioner.s "rother in the complaint. The allegations on petitioner "rother are !tter false.

12. The false allegations made on petitioner "rother and then 1 st respondent#s father ga$e 10 so$ereign gold dowr% article as demand made. 0t is false that dowr% article was demanded and no dowr% article was gi$en "% his father. There is no doc!mentar% e$idence for dowr% article. The dowr% allegation is !tter false one. There was no correlation "etween the two allegations of petitioner "rother harassment and dowr% articles d!e to lac/ of e$idence. The related a$erment that 1st respondent along with petitioner has gone to 1ittal in 2!l% 2006 are !tter false. The chain of allegations did not lin/ with each other d!e lac/ of e$idence. The allegations were made with !terior moti$e to co!nter"last and conceal police compliant on 1st respondent#s sister and 2nd respondent came on 21 ( 2206, the 1st respondent#s sister tried to sta" with /nife. Thereafter 1st respondent along with 1st respondent#s sister and 2nd respondent went to their home at oml!ar, 1 st respondent#s father negotiated with petitioner and his famil% mem"ers in -pril 2006, 1 st respondent with malafide intention sta%ed with 1 st respondent#s sister and 2nd respondent from 2( ( 2006 to 'eptem"er 2006 at om!lar):;.<o 2* 1(.The dowr% allegations does not specificall% pointed o!t an% in$ol$ement of dowr% at rele$ant point of time .and s!ch circ!mstances that said allegations to ha$e "een reCected in limine. 16. 342 and 34( in the cross e;amination admitted that police compliant was made against 1st respondent .s sister with /nife tried to sta" petitioner. On 342 1 st respondent .s father told that he came to /now a"o!t that petitioner police complaint on his elder son in law. 34( second respondent in ceoss e;amination told that he went om!lar police station for compliant made "% petitioner. ):;. no 2*.The Petitioner made compliant against him. 19. +ere it is tr!e that 1st respondent went o!t of matrimonial ho!se d!e to her sister#s with /nife tried to sta" petitioner incident. Thereafter, 1st respondent li$ed in ad!lter% with second

respondent home at om!lar from 21 ( 2006 till 'eptem"er second wee/. 0t f!rther e$idence that

there was no coha"itation "etween petitioner and 1 st respondent d!ring 21 ( 2006 to 'eptem"er 2006, when the 2nd male child co!ld ha$e "egotten. The 2nd male child "orn was on 7 9 2006. 16. 0t is !tter false that on 1? ( 2006 at Trich%, the petitioner as/ed dowr% 3s. One lash to his P+.A., st!dies. 1st respondent and her famil% mem"ers did not gi$e an% compliant at Trich% police. -fter entire matter of alleged dowr% compliant to ha$e "een compromised on 12 ( 2006. -fter getting s!mmon from Famil% co!rt 'alem on 6 6 2006. 1st respondent made false allegation on petitioner to stall di$orce proceeding on 07 06 06. Besides compliant alleged demand were made at Trich%, "!t compliant was lodged at 'alem. -ll those things will clearl% re$eal the allegation is e;facie false and !ns!staina"le. 17. 0t is !tter false that petitioner and his famil% mem"ers demanded mone% for 2 male child

hospital deli$er% e;penses. <o independent witness to gi$e e$idence was made. The 1 st respondent father is an interested witness. -fter ta/ing treatment in the hospital, 1 st respondent, witho!t intimation, left female child, went to 2 nd respondent home at oml!ar. -llegations of demand of mone% are "aseless and !tter false. Aate and time did not mentioned in this allegation. ,ere "ald allegation did not attract face $al!e or charge. 1@. 0t is false that 1st respondent sta%ed ( da%s in petitioner home. 0t is falsel% implicate petitioner mother pensioned 1st respondent. There no medical e$idences for poisoning. Police compliant did not ma/e "% doctor or 1st respondent her famil% mem"ers. -fter getting s!mmon from Famil% co!rt 'alem on 6 6 2006, 1st respondent made false allegation on petitioner to stall di$orce proceeding. ,ere "ald allegation, witho!t s!"stantial e$idence ma% "e reCected. 1?. The 0st respondent filed dowr% allegations complaint to -ll 4omen Police 'tation, 'alem on 1( ( 2006 and withdrawn the dowr% case. Police did not hear s!"mission of petitioner and famil% mem"er#s s!"missions. Police threatened and !nder coercion and !nd!e infl!ence too/

signat!re in "lan/ sheets, -fter got s!mmons of famil% co!rt on 6 6 2006, 1st respondent again filed false dowr% case on 7 6 2006. The dowr% case filed !/s 6?@-, 606, prohi"ition of dowr% -ct. 2!dgment prono!nced on 6 01 2011. The Petitioner, his mother, sister, "rother were ac5!itted. This is e$ident that 1st respondent made false compliant to police, after getting s!mmons from famil% co!rt to conceal and co!nter"last ad!ltero!s life "etween 1st respondent and 2nd respondent and "orn o!t of second male child "etween 1st respondent and 2nd respondent.
20. The Petitioner relied !pon the decision in the case of '!nil :/nath Tram"a/e 1s. Deela$ati

'!nil Tram"a/e )reported in -03 2006 Bom"a% 160*, in which, in paragraph 6, merel% "eca!se either of the parties disp!ted the fact!m of paternit%, it does not mean that the Co!rts co!ld direct A<- test or s!ch other test to resol$e the contro$ers%. 0t was f!rther held that the parties sho!ld "e directed to lead e$idence to pro$e or dispro$e the fact!m of paternit% and onl% if the Co!rt finds it impossi"le to draw an inference or ad$erse inference on the "asis of s!ch e$idence on record or the contro$ers% in iss!e cannot "e resol$ed witho!t A<- test, it ma% direct A<- test and not otherwise.
21.

'!pport from another decision of the -pe; Co!rt in)1???* 7 'CC 679 FAwari/a Prasad

'atpath% $. Bid%!t Pra$a Ai;it and -notherG wherein in a matrimonial case, in a hearing "efore the '!preme Co!rt, the 1st respondent was prepared to ha$e A.<.-.Test for finding o!t the father of the child, at that stage, the learned co!nsel for the appellant so!ght time for fo!r )6* wee/s to get instr!ctions from the appellant and thereafter when the matter was placed for hearing on 20.@.1???, the learned co!nsel for the appellant stated that he was not willing to !ndergo A.<.-. test, therefore, the '!preme Co!rt ordered that H5!ot8 this means appellant is disentitled to disp!te the paternit% of the child.

20. ,!ch reliance was placed !pon "% the learned co!nsel for the respondent in a decision the '!preme Co!rt in 2009 )6* 'CC 66? FBanarsi Aass $. Tee/! A!tta ),rs* and -notherG. 0n the said decision, Eamti Ae$iIscase )s!pra* has "een referred. The following is the material portion in the C!dgmentJ H5!ot816... ... ... The trial co!rt erroneo!sl% held that the doc!ments prod!ced "% the respondents were not s!fficient or rele$ant for the p!rpose of adC!dication and A<- test was concl!si$e. This is not a correct $iew. 0t is for the parties to place e$idence in s!pport of their respecti$e claims and esta"lish their stands. A<- test is not to "e directed as a matter of ro!tine and onl% in deser$ing cases s!ch a direction can "e gi$en, as was noted in =o!tam E!nd!Is case )s!pra*. 21.3elied on reliance !pon a decision of the '!preme Co!rt in 2001 )9*'CC (11 FEamti Ae$i )smt* and another $. Poshi 3amG wherein it is held that concl!si$eness of pres!mption !nder 'ection 112 of 0ndian :$idence -ct cannot "e re"!tted "% A.<.-. paternit% Test and proof of non access to each other is onl% wa% to re"!t that pres!mption. 0n the case of Eamti Ae$i the '!preme Co!rt has held that the part% see/ing to re"!t the pres!mption )!nder 'ection 112 of :$idence -ct* m!st show that neither he had the opport!nit% to approach his wife nor had his wife the opport!nit% to approach him d!ring the rele$ant period and that the standard of proof in s!ch a case is higher than the standard of preponderance of pro"a"ilities "!t not necessaril% amo!nting to standard of proof "e%ond reasona"le do!"t. 0t has also "een held therein that concl!si$eness of pres!mption !nder 'ection 112 of the :$idence -ct cannot "e re"!tted "% A<- test. 'econd respondent filed co!nter to main petition FC OP 72/06 that as same a$erments filed "% 1st respondent and also affida$it. 'econd respondent did not prod!ce an% e$idence for his affida$it. 0t is pro$ed that 1st and 2nd li$ing in ad!ltero!s life and 2nd male child "orn o!t of their ad!ltero!s life.

22. -s far as facts concerned in his case, the petitioner made o!t prima facice case for no access. Petitioner pro$ed no access with 1st respondent and re"!ttal against pres!mption !nder section 112 of 0ndian e$idence -ct Petitioner made strong e$idence that no access with 1 st respondent from 6 12 200( till the 2nd wee/ of 'eptem"er 2006. 0t is pro$ed that 2nd male child "orn o!t of ad!ltero!s life "etween 1st respondent and second respondent. 2(. -"o$e stated reasons, this +onora"le Co!rt ma% pleaded to order a* Aissol$e the marriage ta/e place at -r!lm!g! Ae$asana Thir!mandapam 1a%al!r Trich% on 17.09.2002 "etween the petitioner and 1st respondent on the gro!nd of ad!lter% and* =rant s!ch orders on relifes on honora"le Co!rt deem fit !nder circ!mstances of the case and render C!stice.

'alem 06.02.2016 Petitioner

The a"o$e statements are correct in m% /nowledge and "est in "elief. 'igned "efore me on 06 02 2016.

'alem 06.02.2016 -d$ocate