SENTHIL ANDAVAR Vs. MUTHUMARI AND ORS.

JUDGEMENT

(1.) THE first respondent claims to be the wife of the petitioner. According to her, the respondents 2 and 3 were born to her through the petitioner. On the allegation that the petitioner has neglected them and to maintain them, the respondents filed M.C. No. 40 of 2013 before the learned Judicial Magistrate, Sivakasi, under Section 125 Cr.P.C. claiming a sum of Rs. 3,500/ - each towards maintenance of the respondents 2 and 3 alone.

(2.) ACCORDING to the admitted case of the parties, the first respondent was already married to one Mr. Pandian. But, later on, they got separated. Thereafter, according to the first respondent, the petitioner married her. It is the further case of the first respondent that out of the said wedlock, the respondents 2 and 3 were born. But, the case of the petitioner is otherwise. According to him, he was already married to one Chandra and the said marriage is still subsisting. He has further admitted that he had illicit intimacy with the first respondent for some time, out of which, the 2nd respondent was born. But after the birth of the second respondent, there was no love -lost between them and as a result, the petitioner had no access to the first respondent. However, according to him, the third respondent was born to the first respondent, for which, he is not responsible. In other words, he is not the biological father of the third respondent and therefore, he is not liable to pay any amount as maintenance to the third respondent. In order to prove that the third respondent was not born to him, the petitioner filed Cr.M.P. No. 12729 of 2014 before the learned Judicial Magistrate, seeking a direction for DNA Test to be conducted by expert to ascertain the paternity of the third respondent. The learned Judicial Magistrate dismissed the said petition by order, dated 06.02.2015 mainly on the ground that such a petition is not maintainable in a proceeding under Section 125 Cr.P.C. Challenging the said order, the petitioner is before this Court with this petition.

(3.) THE learned counsel for the petitioner would submit that the only ground, upon which, the trial Court dismissed the request of the petitioner is not sustainable, in view of the judgment of the Hon'ble Supreme Court in Nandlal Wasudeo Badwaik v. Lata Nandlal Badwait & Anr. reported in : (2014) 5 CTC 680.