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Judgments of Supreme Court of India and High Courts

Nandlal S/O Wasudeo Badwaik vs Sau. Lata W/O Nandlal Badwaik on 18 July, 2018

1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH : NAGPUR

Writ Petition No. 5952 of 2017

Petitioner : Nandlal son of Wasudeo Badwaik, aged about
59 years, Occ: service, resident of Dewai,
Govindpur, Tukum, Chqandrapur

Versus

Respondent: Sau Lata w/o Nandlal Bazdwaik, aged about

54 years, Occ: private service, C/o Baburao
Saoji Dange, at post Bhendala, Tahsil Chamorshi,
District Chandrapur

Shri S. O. Ahmed, Advocate for petitioner
Shri M. A. Vaishnav, Advocate for respondent

Coram : S. B. Shukre, J

Dated : 18th July 2018

Oral Judgment

1. Rule. Heard forthwith by consent of parties.

2. In the judgment of Hon’ble Apex Court rendered in a dispute

between these very parties, Criminal Appeal No. 24 of 2014, dated

6.1.2014, it has been observed thus :

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“As stated earlier, the DNA test is an accurate test and

on that basis it is clear that the appellant is not the

biological father of the girl-child….”

Therefore, in my considered view, this finding would have a bearing upon

rights of the parties.

3. Learned counsel for the respondent submits that

considerations for grant of maintenance under Section 125 Cr. P. C. and

grant of support under Section 24 of the Hindu Marriage Act are different.

He has placed reliance on the following judgments :

(1) Ramesh Chandra Rampratapji Daga v. Rameshwari Ramesh
Chandra Daga – 2005 (1) RCR (Civil) 615.

(2) Manish Jain v. Akanksha Jain – 2017 (2) RCR (Civil) 682.

(3) Amarjit Kaur v. Harbhajan Singh anr – (2003) 10 SCC 228.

(4) Gangu Pundlik Waghmare v. Pundlik Maroti Waghmare anr –
1979 Mh. L. J. 555.

(5) Dwarkadas Gurumukhdas Agrawal v. Bhanuben – AIR 1986
Gujarat 8.

(6) Smt Pampa Das v. Sanjib Das – AIR 2005 Cal 266.

(7) Rajesh Burman v. Mitul Chatterjee (Burman) – (2009) 1 SCC

398.

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4. On going through the judgments cited by learned counsel for

the respondent, I find that although it is held that the considerations to be

borne in mind while deciding application under Section 24 of the Hindu

Marriage Act are those which are stated expressly in that Section and that

merits of the case cannot be gone into, the fact remains about the impact

an issue would have on the order of maintenance pendent lite if

unchastity of the respondent comes to fore after DNA test. And if the

DNA test is proved to be positive, again there will be adverse impact on

the order of permanent alimony under Section 25 of the Act. The trial

Court has not taken into consideration this aspect of the matter.

Therefore, the impugned order will have to be quashed and set aside or

otherwise, it is likely to cause injustice to the parties.

5. Writ Petition is allowed. Impugned order is quashed and set

aside and matter is remanded back to the trial Court for fresh

consideration by taking into consideration the provisions of law and the

principles laid down in the above-referred cases. Rule is made absolute

accordingly. No costs.

S. B. SHUKRE, J

joshi

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