Heard the learned counsel for the petitioner and the

learned counsel for the respondents.

2.

The present writ petition is filed with the

following prayers:

"Praying to quash the order dated

passed

on

I.A.No.7

in

Crl.Misc.No.390/2017 in the file of Additional

Prl. Judge Family Court, Vijayapur, the certified

copy of which is at Annexure-E and etc, quash

the order dated 03.12.2018 passed on I.A.No.8

in Cril.Misc.No.390/2017 on the file of I

Additional Prl. Judge Family Court, Vijayapur

the certified copy of which is at Annexure-H

and issue any other writ, order or direction as

may be necessary in the interest of justice."

3

3.

Brief facts of the case are as under:

The petitioner is the husband of first respondent. It

is alleged that the second respondent is the daughter born

to the petitioner and the first respondent. A petition came

to be filed under Section 125 of Cr.P.C. contending that

the writ petitioner has married the first respondent on

28.12.2013 in Chandragirimath, Alamatti and thereafter,

they resided in the house of Ashok Kurle at Vijayapur.

Subsequent thereto, since the petitioner is residing in

Sindagi for his avocation, the couple lived there for about

eight months in a rented house. It is further contended

that her stay in Sindagi with the petitioner was not cordial

and the petitioner used to suspect her fidelity and used to

lock the house from outside whenever he was moving out

of the house. It is also contended that the first respondent

was not properly looked after and the petitioner had tried

to take away the life of the first respondent on number of

occasions. When the matter stood thus, in the year 2014,

the first respondent became pregnant and returned to her

4

parental house for confinement period. Thereafter, the

petitioner did not visit the first respondent in her parental

house nor took her to matrimonial house despite repeated

demands. The brother of the first respondent convened a

panchayat

in

Budha

Vihar

at

Vijayapur

and

the

panchayatdars advised the petitioner to look after the first

respondent in a proper manner. Ultimately, the brother of

the first respondent namely, Ravindra requested the

petitioner to take back the first respondent. Left with no

alternative, the first respondent took shelter in Santwan

Mahila Sahayavani Kendra, Vijayapur on 19.05.2017.

There again reconciliation was held, but, failed. Left with

no alternative, the first respondent filed a petition seeking

grant of maintenance under Section 125 of Cr.P.C. before

the jurisdictional Magistrate.

4.

The petition is opposed by the writ petitioner

by filing detailed written statement denying the allegations

made in the complaint inter alia contending that the

second respondent is not born to the petitioner and he is

5

not the biological father of the second respondent. When

the matter stood thus, an application came to be filed

under Section 10 of the Family Court Act for DNA

examination in respect of the second respondent. In the

affidavit filed in support of the application, there is a

specific contention that the petitioner is not the biological

father of the second respondent. In order to substantiate

his stand, the sample from the second respondent is

utmost necessary and such sample must be drawn and

sent to DNA profiling examination,whereby, the matter can

be thrashed out by placing the best evidence on record.

The first respondent/wife opposed the said application. It

is also contended that before such an application can be

filed, the petitioner is required to lead his evidence and

thereafter, the application can be moved. The learned

Magistrate following the dictum of the Hon'ble Apex Court

trial in Criminal Appeal No.24/2014 in the case of Nandlal

Wasudeo Badwaik vs. Lata Nandlal Badwaik and

Anr., dismissed the application as the petitioner has not

6

led in his evidence. Being aggrieved by the same, the

petitioner is before this Court.

5.

The learned counsel for the petitioner Sri

Venkatesh C. Mallabadi veh