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Judgments of Supreme Court of India and High Courts

Lata Nandlal Badwaik And Another vs Nandlal Wasudeo Badwaik on 16 March, 2018

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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