HON’BLE SRI JUSTICE K.G.SHANKAR Second Appeal No.18 of 2011 Date: 14-03-2013 Between: Devarapalli Vijaya Kumar .. Appellant/ Appellant/ Plaintiff AND Devarapalli Lakshmi and another .. Respondents/ Respondents/ Defendants HON’BLE SRI JUSTICE K.G.SHANKAR Second Appeal No.18 of 2011 JUDGMENT: The plaintiff’s suit for a declaration that the first defendant is not his wife and that the second defendant is not his legitimate son through the first defendant and also for a perpetual injunction restraining the defendants from executing the orders in M.C.No.1 of 2000 was dismissed by the learned Senior Civil Judge, Parvathipuram, through judgment dated 10.03.2005. The learned II Additional District Judge (Fast Track Court), Parvathipuram dismissed the appeal. Aggrieved by the same, the present second appeal is laid. 2. The plaintiff averred a) The first defendant and her family are the eastern neighbours of the plaintiff. The first defendant is the legally wedded wife of Devarapalli Ratnam. The marriage of the first defendant with Ratnam was solemnized on 16.06.1986 in St. Paul Luthern Church, Belgam. The second defendant is the son of the first defendant through Ratnam. b) The first defendant and the plaintiff came into disputes amongst themselves. The first defendant attempted to attack the plaintiff and when the plaintiff resisted the physical attempt on him, the first defendant lodged false police complaints and also filed C.C.No.1 of 1998 on the file of the I Additional Judicial First Class Magistrate, Parvathipuram against the plaintiff under Section 498-A IPC. The first defendant also filed M.C.No.9 of 1997 seeking maintenance. C.C.No.1 of 1998 ended in acquittal. The plaintiff, however, was directed to pay maintenance to the first defendant. The appeal and the revision by the plaintiff against the orders in M.C.No.9 of 1997 were dismissed. c) The plaintiff consequently seeks for the setting aside of the orders in M.C.No.1 of 2000 as well as for a declaration that the first defendant is not his wife and second defendant is not his son. 3. The defendants denied the claim of the plaintiff. The plaintiff examined as many as six witnesses in support of his case. The defendants in their turn examined five witnesses. Documentary evidence was let in by both sides. The trial Court ultimately concluded that the plaintiff failed to make out his case and dismissed the suit. The appellate Court reached the same conclusion. Hence, this second appeal. 4. The substantial question of law that arises for consideration is as to whether the trial Court and the appellate Court erred in holding that the plaintiff is legally wedded husband of the first defendant and the father of the second defendant. 5. It is the contention of Sri A. Ravi Shankar, learned counsel for the appellant/plaintiff that marriage between the plaintiff and the first defendant has not been proved. He inter alia contended that as the first defendant set up marriage between the plaintiff and the first defendant, onus rests upon the first defendant as much as upon the plaintiff to establish her case and that as the defendants failed to prove their case, the claim of the defendants cannot be accepted. 6. It may be noticed that a plaintiff, who laid the suit for declaration and perpetual injunction, shall prove his case through positive evidence. The plaintiff cannot seek for a decree on the ground that the defendants did not prove their case. It is not the weakness of the defendants, which determines the result of the case. The proof by the plaintiff alone establishes the case. If the plaintiff fails in proving his case, the plaintiff fails in the suit notwithstanding the defendants failing to establish their claim. 7. The plaintiff examined PWs.2 and 3 who allegedly witnessed the marriage of the first defendant with Ratnam. They were alleged to be the signatories of Ex.A.2-extract of the marriage register of St. Paul Luther Church, Belgam. Both of them, however, admitted that Ex.A.2 did not show that it related to St. Paul Luther Church. As rightly submitted by Sri K. Soma Konda Reddy, learned counsel for the defendants, Ex.A.2 does not prove the marriage between the Ratnam and the first defendant. The evidence of PWs.2 and 3 consequently is of no consequence where they failed to show by any evidence other than Ex.A.2 that they were attesting witnesses for the marriage of the first defendant with Ratnam. The trial Court and the appellate Court disbelieved the evidence of PWs.2 and 3 in this background. The view adopted by both the Courts is reasonable and does not require any interference in the second appeal. 8. Added to it, the plaintiff could have at least sought for DNA test to determine whether the first defendant is his child or otherwise. It may be recalled that it is the positive case of the plaintiff that the second defendant is the son of Ratnam and the first defendant. The plaintiff therefore could have subjected the second defendant to DNA test. The plaintiff did not choose to do so. The learned counsel for the plaintiff contended that the DNA test at best would have determined the parentage of the second defendant but would not have determined the marriage between the plaintiff and the first defendant. 9. As rightly submitted by the learned counsel for the defendants, the conduct of the plaintiff, however, is not satisfactorily. The DNA test showing that the second defendant was the son of Ratnam would have supported the claim of the plaintiff. Thus, the plaintiff did not prove the marriage of Ratnam and the first defendant nor did he establish that the second defendant is not his son. 10. I may also examine the stand of the first defendant in this context. The first defendant examined not only herself as DW.1 but also examined DWs.2 to 5 in support of her case. They prima facie establish that the marriage of the first defendant with the plaintiff was solemnized on 15.12.1998. In the absence of contrary evidence, the prima facie evidence produced by the defendants takes the shape of concrete evidence. Added to it, DW.3 deposed that the plaintiff and the first defendant resided in his house as tenants proclaiming themselves to be man and his wife. The defendants thus have established that the first defendant is the legally wedded wife of the plaintiff. The necessary corollary is that the second defendant is the legitimate son of the plaintiff through the first defendant. Consequently, the plaintiff is not entitled to the declaration sought for by him. The plaintiff did not make out any ground to set aside the orders in the execution petition in M.C.No.1 of 2000. The plaintiff shall fail in entirety of his claim. The judgment of the trial Court and the appellate Court do not require any interference. 11. This second appeal is found to be devoid of merits and is accordingly dismissed. No costs. _________________ K.G. SHANKAR, J Date: 14.03.2013 Isn