THE HON’BLE SRI JUSTICE B.PRAKASH RAO AND THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY CIVIL MISCELLANEOUS APPEAL No.497 of 2002 ` JUDGMENT: (per GVS, J) This appeal is directed against the order, dated 27.12.2001 in H.M.O.P.No.61 of 1996 on the file of Senior Civil Judge, Vizianagaram, wherein the application filed by the respondent herein under Section 9 of the Hindu Marriage Act, 1955 (for short ‘the Act’) for restitution of conjugal rights was allowed directing the appellant herein to take back the respondent into his conjugal society. Heard the learned counsel for the petitioner and the respondent. Perused the records. The appellant is the husband of the respondent. Their marriage took place on 19.02.1995 as per Hindu rites and caste customs. Immediately after the marriage, the appellant and the respondent joined for matrimonial life. It is not disputed that on 28.10.1995, the respondent gave birth to a male child. The respondent alleges that the appellant, his parents and other relations did not even attend the naming ceremony of the child with some oblique motives and subsequently also, in spite of mediation, the appellant has not taken back the respondent to matrimonial home and on the other hand, started suspecting the character of the respondent and disowning the paternity of the child with an idea to get rid of the respondent and the child. The respondent got issued registered notice, dated 13.05.1996, for which, the appellant gave a reply with contentions which according to the respondent are false. Hence, the respondent filed H.M.O.P.No.61 of 1996 before the trial Court for restitution of conjugal rights. The appellant filed counter opposing the said application alleging that there was no consummation of marriage and the respondent was always keeping him away from her society and he was shocked to know that the respondent became pregnant and gave birth to a child, though there was no physical intimacy between them. During enquiry, the respondent was examined as P.W.1 and her brother was examined on her behalf as P.W.2 and notice Ex.A.1 and reply notice Ex.A.2 were marked. The appellant was examined as R.W.1 and no documents were marked on his behalf. On consideration of the evidence available on record, the learned Senior Civil Judge held that the appellant made scandalous allegations against the respondent and denied her the conjugal society without any valid or justifiable reason and therefore, the respondent is entitled to seek restitution of conjugal rights. Accordingly, the petition was allowed. Aggrieved by the same, the husband filed the present appeal. As seen from the impugned order and the material available on record, there is no dispute regarding the marriage of the appellant and the respondent that took place on 19.02.1995 and also the fact that they lived together in the matrimonial home for some time. The evidence also discloses that the respondent was taken to her parental house only for the purpose of delivery and on 21.10.1995, the respondent gave birth to a male child. Thereafter, the appellant has chosen to disown the paternity of the child on the ground that the child was born less than nine months after the marriage and he started suspecting the character of the respondent. At the time of trial, the respondent offered to go for DNA test to prove the paternity for which the respondent also agreed and even offered to cooperate in the conduct of the said test and to bear the expenses thereof and even deposed as R.W.1 that if the result of the DNA test goes against him and his paternity of the child is established, he was ready to abide by the orders of the Court and take back the wife into the conjugal society. However, the appellant husband has gone back on his promise and did not come forward to get the test conducted and did not cooperate. In that regard, except giving reply notice denying the paternity, he has not taken any steps subsequently and during the enquiry also, he did not take any steps to establish his allegation that there was no consummation between himself and the respondent wife and therefore, the child was not born to him. The trial Court has therefore rightly come to the conclusion that the appellant has chosen to make wild allegation against the respondent but did not however bother to establish the same by adducing any evidence. As the marriage between the appellant and the respondent was an admitted fact and there being no valid or justifiable reason for the appellant to discard the society of the respondent and the respondent was denied the conjugal society of the husband without any valid or proper reason, the trial Court has directed the appellant to take back the respondent into the conjugal society. It is stated by the learned counsel for the appellant that the appellant filed O.P.No.196 of 1997 before the Family Court, Visakhapatnam, seeking divorce. It is open to both the parties to raise all permissible contentions under law in the said divorce proceedings, which are pending. So far as the present proceedings are concerned, there are absolutely no valid or justifiable grounds to interfere with the order passed by the trial Court directing the husband to take the wife back into the conjugal society. In the result, the appeal is dismissed. There shall be no order as to costs. ____________________ B.PRAKASH RAO, J 20th JANUARY, 2010. ______________________ G.V.SEETHAPATHY, J kvni