IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.918 of 2007 SARDAR DAYA SINGH Versus USHA SINGH & ORS ----------- 4 01.10.2008 Heard counsel for the petitioner and counsel for the opposite party. This Court would not find any reason to interfere with the impugned order rejecting the prayer of the husband petitioner to reject the plaint of wife and opposite party under Order VII Rule 11 C.P.C. This much however becomes necessary to be observed by this Court that as the suit filed by the wife- opposite party for restitution of conjugal right would depend on two facts, namely:- (i) that she was duped at a time of marriage on 10th of December 1997 that the first wife of the petitioner had already been dead and (ii) that she had not only got married to the petitioner under a bonafide belief but also had an issue out of the relationship with the petitioner, the Court below will examine this very issue of maintainability of the application for restitution of conjugal right as a preliminary issue only after getting the D.N.A. test of the alleged son of the opposite party - 2 - and the petitioner, conducted through a specialized agency either at All India Institute of Medical Science or an equally reputed Government Medical College. The total cost for such D.N.A. test including the expenses for journey of both mother and son to such specialized centre will, be borne by the petitioner as may be fixed by the Court below. The Court below in the event if it receives the D.N.A. test report showing the alleged son of the opposite party-wife to be one belonging to the petitioner, in that event it would decide all the questions in the light of evidence within a period of six months of the receipt of D.N.A. report including the crucial question as to whether the wife opposite party is the only wife or the claimed first wife of the petitioner, about whom the opposite party could discover only after her marriage is really the wife of the petitioner. In view of the fact that these questions could not have even been looked into, much less decided on the basis of the perusal of plaint which alone has to be looked at the stage of Order VII Rule 11 of the Code of Civil Procedure, at least this Court would not find any error in the impugned order specially when this Court has perused and considered the paragraphs no. 3, 4 and 6 of the application filed by the wife-opposite party, - 3 - seeking restitution of conjugal right. With the aforementioned observations and directions this Civil Revision application is dismissed. Bibhash (Mihir Kumar Jha, J.)