916wp57of2018 Judg.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL WRIT PETITION NO. 57 OF 2018
PETITIONERS :-1. Lata Nandlal Badwaik,
Aged about 49 years,
Resident of Bhendala, Tahsil-Chamorshi,
District-Gadchiroli.
2. Netra Alias Neha Nandlal Badwaik,
Aged about 17 years, minor through her
mother, resident of Bhendala, Tahsil
Chamorshi, District-Gadchiroli.
VERSUS
RESPONDENT :- Nandlal Wasudeo Badwaik,
Aged about 55 years,
Resident of Deol Govindpur Tukum,
Chandrapur, Tahsil and District
Chandrapur.
———————————————————————————————————————–
Shri S.M. Vaishnav, Counsel for the Petitioners.
Shri S.O. Ahmed, Counsel for the Respondent.
———————————————————————————————————————–
CORAM: ROHIT B. DEO
, J.
DATE: 16
MARCH
th
, 201 8 .
ORAL JUDGMENT
Heard.
2. Rule. Rule made returnable forthwith, with the consent
of the parties.
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3. The petitioner 1 and respondent entered into
matrimonial alliance on 30-6-1990. The petitioner 2 is the child
who according to petitioner 1 born from the wedlock. The
respondent-husband disputed the paternity of the child in an
earlier proceedings instituted under Section 125 of Criminal
Procedure Code. The dispute between the petitioner 1 – wife and
respondent – husband ultimately reached the Hon’ble Apex Court
in Criminal Appeal 24/2014. The Hon’ble Apex Court directed
D.N.A. examination to determine the paternity of petitioner 2. The
D.N.A. test conducted by Regional Forensic Science Laboratory,
Nagpur excluded the respondent-husband as father of the
petitioner 2 child. Dissatisfied, the wife requested the Hon’ble
Apex Court to order a second D.N.A. test, the said request was
accepted and second D.N.A. test was conducted by Central
Forensic Science Laboratory, Hyderabad, with similar result.
4. The respondent-husband then preferred an application
under Section 125 (5) of Criminal Procedure Code, inter-alia
submitting that in view of the determination of paternity, it is
obvious that petitioner 1-wife was living in adultery and therefore,
the order granting maintenance be revoked. This proceeding came
to be numbered as Misc. Criminal Case 21/2014. Petitioner 1-wife
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moved an application (Exhibit-13) in the said proceeding
contending that order granting maintenance has assumed finality
inasmuch as despite ordering the D.N.A. test and the result
thereof, the Hon’ble Apex Court did not interfere with the
maintenance granted to the wife. This application is rejected by
the learned Judicial Magistrate First Class and the revision
preferred against the said order is rejected by the learned Sessions
Judge, Gadchiroli.
5. I have given my anxious consideration to the
submission of Shri S.M. Vaishnav, learned Counsel appearing on
behalf of the petitioners that in view of the refusal of the Hon’ble
Apex Court to disturb the order of maintenance in favour of the
petitioner 1-wife, the proceeding initiated under Section 125 (5)
of the Criminal Procedure Code is not maintainable. However, in
the light of the course which I propose to adopt, it is not necessary
to record a conclusive finding on the question of law, which arises.
In the ultimate analysis, several issues may arise for consideration
one of which would be whether an one of instance of extra-marital
relationship or an aberration is covered by the expression “living
in adultery”. This Court is not suggesting even for an moment, that
child is born out of one of instance or an aberration. Such
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questions, which would arise in the proceedings shall have to be
decided by the learned Magistrate after a full fledged trial. The
submission of Shri S.M. Vaishnav, learned Counsel that order of
maintenance has assumed finality and since the order granting
maintenance to the wife is not interfered by the Hon’ble Apex
Court, the proceeding under Section 125 (5) of the Criminal
Procedure Code is not maintainable, would also have to be
decided by the learned Magistrate on its own merits, without
influenced by any observation in this Judgement. In this view of
the matter, it would not be appropriate to entertain the petition
on merits.
6. The petition is disposed of, leaving every question,
factual and legal open for the learned Magistrate to determine on
merits and in accordance with law.
7. Rule is made absolute in the above terms.
JUDGE
RKN
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