IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL WRIT PETITION NO.810 OF 2008. WRIT PETITION NO.810 OF 2008. WRIT PETITION NO.810 OF 2008. Shri Jagannath Padu Thombre. ..Petitioner. versus Sou. Shilabai Jagannath Thombre & Anr...Respondents. .... Mr.Shreekant V. Gavand, for the Petitioner. Mr. Rahul P. Walvekar, for the Respondent Nos.1 & 2. Mr. D.R. More, APP, for the Respondent-State. .... CORAM CORAM CORAM : A.S. OKA, J. : A.S. OKA, J. : A.S. OKA, J. DATE DATE DATE : 5TH AUGUST,2008. : 5TH AUGUST,2008. : 5TH AUGUST,2008. P.C. 1. Heard the leaned Counsel appearing for the Petitioner. The first and the second Respondents filed an application under section 125 of the Code of Criminal Procedure, 1973 against the Petitioner. The first Respondent claims to be the wife of the Petitioner and the second Respondent claims to be the daughter of the Petitioner. An application was made by the Petitioner praying that the second Respondent should be ordered to subject herself to a D.N.A test as the Petitioner had raised a dispute about paternity of the second Respondent. The Petitioner offered to pay necessary charges of conducting D.N.A. test. By order dated 25th March 2008, the said application was rejected by the learned Magistrate. By filing this Petition under Article 227 of the - 2 - Constitution of India, the Petitioner -husband has taken an exception to the said order. 2. The learned Counsel for the Petitioner submitted that even the first and the second Respondents had endorsed their no objection in writing on the application made by the Petitioner at Exhibit 26 and thus, the second Respondent had agreed to submit herself to D.N.A test. She submitted that in view of the consent and in view of the fact that the Petitioner was ready to pay necessary charges for conducting the D.N.A test, the learned Judge has committed an error by rejecting the application. 3. I have carefully considered the submissions. At the outset, it must be stated that the consent granted by the first and the second Respondents is not the only relevant factor and the learned Magistrate could not have allowed the application only on the basis of the consent of the parties. It was necessary for the learned Judge to consider the scope of the proceedings in which the said application was made. The learned Magistrate observed that after recording of the evidence of both the sides was completed, the present application was - 3 - filed by the Petitioner. He has observed that the application was belatedly filed by the Petitioner. 4. The proceedings under section 125 of the said Code are required to be disposed of by adopting a summary procedure. The findings recorded by the Court in such proceedings are not final so far as the status of the parties is concerned and independently of the findings recorded in the proceedings under section 125 of the said Code, the parties can always file appropriate proceedings and claim appropriate declaration from the Civil Court. In the circumstances, there was every justification for the learned Judge to reject the application which was belatedly filed by the Petitioner at the stage of final arguments. Therefore, no interference is called for in this Petition under Article 227 of the Constitution of India. 5. However, it must be noted that while rejecting the application, the learned Judge has made some observations on merits on the contentions raised by the Petitioner by which he has raised a dispute about the paternity. The said observations made in the impugned order will have to be ignored by the - 4 - learned Judge while passing the order under section 125 of the Code and the final order will have to be passed on in its own merits on the basis of evidence on record. 6. Subject to aforesaid observations, the writ petition is rejected. No orders as to costs. [ A.S.OKA, J.] A.S.OKA, J.] A.S.OKA, J.]