1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.117 OF 2010 WITH CIVIL APPLICATION NO.291 OF 2010 Smt.Manorama Pandurang Kale )..Appellant Vs. Shri Pandurang Krishnaji Kale )..Respondent ---- Mr. K.B.Sonwalkar for the appellant. Mr.Vilas B. Tapkir for the respondent. ---- Coram : R.S.MOHITE,J Date : 8th March, 2010 PC SECOND APPEAL NO.117 OF 2010 1 This is a Second Appeal filed by the original defendant/wife. The peculiar facts of the case are as follows :- 2 Admittedly, the present appellant married the defendant in the year 1986. A child was born from the marriage on 20.6.1992. In the year 1996 the husband filed a petition for divorce on the ground of cruelty as also on the ground that since June-1991 the wife had eloped along with one Anandrao Thorat and was residing along with him. By a judgment and order dated 21.1.2000 Joint Civil Judge, Senior Division, Pune allowed the husband’s petition for divorce by holding that the husband has proved that his wife had treated him with cruelty and had further proved that the wife had been continuously living with Anandrao Thorat since more than 5 years. The Court observed that wife was staying 2 for more than 5 years with Anandrao Thorat was reason to believe that the wife and Anandrao Thorat were having extra marital relations. This judgment and order granting divorce on the findings as mentioned aforesaid was never challenged by the wife. 3 Subsequent to this development, in the year 2002 the respondent husband filed a suit in the court of Civil Judge, Junior Division, Daund, Pune, for a declaration that the child born from the present appellant was not for him and injunction preventing the use of his name as a father of this child. This suit was dismissed but the appeal filed by the husband was allowed by the appellate Court on 30.7.2009. The appellate Court which was the last court of fact dis-believed the wife’s case that she had been driven out after the child was born and accepted the plaintiff’s case that she was staying with Anandrao Thorat and that he had no access or opportunity for sexual intercourse. This finding that she was staying with Anandrao Thorat was in consonance with the finding of Civil Judge, Senior Division, Pune. 4 That during the pendency of the appeal, the respondent/husband made an application for subject himself for a DNA test. Admittedly, the result of the DNA test indicated that the child was not of the respondent. 5 Now, the Advocate for the appellant relying upon a judgment of the Apex Court in the case of Smt.Kamti Devi Vs. Poshi Ram reported in AIR 2001 SC 2226, contended that the substantial question of law was that not-with-standing the result of the DNA test, whether the plaintiff’s suit could have been decreed in view of section-112 of the Indian Evidence Act. 3 6 It is seen that firstly the appellate Court has accepted the contention of the appellant that the finding of the DNA test is not enough to escape from the conclusiveness of section 112 of the Act. It is however, seen that in paragraph-14 the Apex Court dismissed the appeal filed by the wife by observing as follows :- “ In the present case the first appellate Court, which is the final fact finding court, after evaluating the entire evidence, came to the following conclusion : In the present case the plaintiff has examined all the evidence which he possibly could do in the circumstances. He has proved by convincing evidence, that he did not visit his village or house where the defendant was allotted one room. He has further proved that the defendant also never visited him at Mandi where he had been living for more than 2 years before the child was born to Kamti Devi. In other words he has proved that he had no access or opportunity for sexual intercourse with defendant No.1 for more than 280 days before Roshan Lal (defendant No.2) was begotten by the defendant No. 1.” 7 In the present case also I find that the first appellate Court after evaluating the evidence has concluded that the present respondent had no access or opportunity to access the present appellant for intercourse. This finding cannot be faulted. One must bare in mind that two courts have independently come to the conclusion that the wife was staying with one Anandrao Thorat and have dis-believed the story of the wife that she was driven out after the child was born. In the aforesaid circumstances, I find no substantial question of law involved in the Second Appeal and the same is summarily dismissed. CIVIL APPLICATION NO.291 OF 2010 As the Second Appeal is dismissed, Civil Application does not survive and stands disposed off accordingly. (R.S.MOHITE,J) 4 5