( 1 ) THESE two criminal petitions - Crl. P. No. 2694 and 2695 of 2005 are filed against the common order passed by the learned III Additional sessions Judge, Kurnool, at Nandyal in Crl. R. P. Nos. 19 and 22 of 2005, respectively. The parties herein Would be referred to us they are arrayed before the trial Court.

( 2 ) THE facts of the case are: First petitioner, Kamarthi Rajeswari and the second petitioner, Kamarthi Jyothi have filed M. C. No. 5 of 2004 under section 125 Cr. P. C, against the respondent claiming maintenance. During the pendency of maintenance proceedings, the respondent/husband filed Crl. P. No. 849 of 2005 under section 45 of the indian Evidence Act for sending the second petitioner for DNA test for ascertaining her parentage contending that he is an impotent and the second petitioner is not born to him. He also filed Crl. M. P. No. 1469 of 2004 under section 311 Cr. P. C, to summon the Doctor by name, P. Srinivasulu, to prove that he (the respondent) is impotent. Both the petitions are dismissed by the learned Magistrate and against the order in Crlm. P. No. 849 of 2005 the respondent filed Crl. K. P. No. 19 of 2005 and Crl. R. P. No. 22 of 2005 against the order in Crl. M. P. No. 1469 of 2004 before the learned III Additional Sessions Judge, Kurnool at Nandyal.

( 3 ) IT is the case of the petitioners that the first petitioner was married to the respondent on 8-1-1993 at Anjaneyaswamy Temple, near RTC Busstand, Nandyal, as per Hindu rites and customs. They lived happily for some time and during their wedlock the second petitioner was born. Later the respondent ill-treated and neglected the petitioners and therefore, they initiated maintenance proceedings. The respondent refuted the claim of the petitioners contending that the first petitioner never lived with him; that he is impotent and that the second petitioner did not born to him,. After PW-1 was examined, the respondent filed criminal petitions, as referred to above.

( 4 ) IN the orders of both the learned Magistrate, as well as the learned Sessions Judge, it is stated that the respondent denied the marriage between himself and the first petitioner. On a direction of this Court, acro. ss the Bench, the learned counsel for the respondent (petitioner herein) filed a copy of the counter filed in maintenance case, which shows there is no denial of the marriage. Copy of the counter forms part of these criminal petitions.

( 5 ) CR. R. P. NO. 19 of 2005 was dismissed by the learned Sessions judge relying on certain decisions and holding that the second petitioner cannot be compelled to under go DNA test and Crl. R. P. No. 22 of 2005 was dismissed holding that at the earliest point of time in the maintenance proceedings, the respondent did not take the said plea.

( 6 ) NOW, the point for consideration is whether there are any grounds to allow the criminal petitions.

( 7 ) BOTH the petitions are filed by the respondent-husband stating that as he is impotent, there was no question of the second petitioner, daughter being born to him and as such he is not liable for maintenance. He further wants that he be declared as an impotent by examining the Doctor, for which he wanted to summon the Doctor. He also wanted to say that the second petitioner is not born to him, which can be cleared through DNA test.

( 8 ) IN the counter filed by the respondent, in the main petition, what is stated that the marriage was not consummated; immediately after the marriage, on the very first day, she went away and stayed with her parents and never lead marital life with the respondent at any time and the allegation that the first petitioner-wife got separated from the respondent on account of the torture is also denied. In paragraph - 5 of the counter, it is specifically stated that the wife never lived with him and from the inception of the marriage day, she lived with her parents, as he was not fit for sexual inter course; the first wife of the respondent eloped away with som

Click Here to Read the rest of this document