Safiya Malik

The High Court of Bombay at Nagpur, Single Bench of Justice R.M. Joshi set aside an order directing a DNA test to determine the legitimacy of a minor child, citing the absence of any specific denial of paternity by the husband. The Court held that such a direction for DNA testing could not be justified solely on the grounds of vague allegations or inferred consent by the wife during cross-examination. The Court stated that unless the presumption under Section 112 of the Indian Evidence Act is specifically rebutted by pleading and proving non-access during the relevant period, no case is made out to call for such a test.

The Court observed that "unless the respondent-husband disputes that he is not the father of the child and makes out a specific case of having no access to wife and rebuts presumption under Section 112 of the Indian Evidence Act, question of determining the paternity of the child does not arise." Consequently, the Family Court’s order allowing the DNA test application was set aside, and the application seeking the test was dismissed.

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The petition was filed challenging the order dated 17/02/2020 passed by the Family Court below Exh.51 in Petition No. A-457/2023. The order allowed the respondent-husband’s request for conducting a DNA Profiling Test to decide the legitimacy of the child born on 27/07/2013.

The marriage between the petitioner (wife) and respondent (husband) took place on 18/12/2011. The wife left the matrimonial home on 19/01/2013, by which time she was three months pregnant. Subsequently, the respondent issued a notice dated 28/01/2013 to the petitioner, calling upon her to return to the matrimonial home for cohabitation. On 08/02/2013, the respondent filed Petition No. A-139/2013 before the Family Court, Nagpur, seeking judicial separation. Meanwhile, the petitioner filed Petition No. A-4457/2013 under Section 9 of the Hindu Marriage Act for restitution of conjugal rights.

Though the husband later withdrew his petition for judicial separation, he filed Petition No. A-199/2014 seeking a decree of divorce on the grounds of adultery, cruelty, and desertion. These petitions were being heard together by the Family Court.

The child in question was born on 27/07/2013. The respondent-husband raised allegations doubting the chastity of the petitioner and filed an application for conducting a DNA test of the child before the Judicial Magistrate First Class, Nagpur in R.C.C. No.912/2014. This application was rejected on 19/11/2016.

At the stage of recording evidence in the pending divorce proceedings, the respondent filed another application [Exh.51] seeking a DNA test to determine the legitimacy of the child. This application was allowed by the Family Court, prompting the petitioner-wife to challenge the order before the High Court.

The counsel for the petitioner submitted that the Family Court committed an error by relying on a statement made during the petitioner’s cross-examination, where she said that she would abide by any court order regarding DNA testing. It was argued that such a statement could not be considered as consent for the DNA test. The petitioner further argued that only in exceptional circumstances could a DNA Profiling Test be permitted, and that no such exceptional situation was present in the case.

It was also submitted that the respondent never denied access to the wife during the relevant period of conception. The notice dated 28/01/2013 issued by the respondent indicated his knowledge that the wife was three months pregnant at that time. The petitioner pointed out that there was no allegation of unchastity in the notice and no plea in any proceeding asserting that the respondent had no access to the petitioner during the relevant period.

The respondent-husband's counsel supported the Family Court's order and relied on the Supreme Court judgments in Nandlal Wasudeo Badwaik vs. Lata Nandlal Badwaik, K. Sugandha Kumar vs. Smt. K. Vijaya Laxmi, and Rajesh Francis vs. Preethi Roslin. He argued that DNA testing was a scientifically accurate and acceptable method to determine paternity and should not be declined when available. He also stated that the Family Court had already directed that the husband would deposit Rs.1,00,000/- as compensation if the test results affirmed his paternity.

The High Court reviewed these arguments and the legal framework under Section 112 of the Indian Evidence Act, 1872, which presumes legitimacy of a child born during a valid marriage unless it can be shown that the parties had no access to each other during the period of conception.

"According to this provision, a person born within two hundred eighty days of marriage between his mother and any man, shall be conclusive proof of legitimacy of the child."

"The presumption of legitimacy, therefore, must be challenged with specific plea of no access for parties to each other during relevant period. Unless case is sought to be made out to that effect, legitimacy of a child could not be challenged."

The Court cited several decisions including the Supreme Court’s judgement in Aparna Ajinkya Firodia vs. Ajinkya Arun Firodia (2024) 7 SCC 773, which discussed the scope of Section 112 and the meaning of "access" in the context of legitimacy.

"The principle underlying Section 112 is to prevent an unwarranted enquiry as to the paternity of the child whose parents, at the relevant time had access to each other."

"This presumption can be rebutted only by strong, clear and conclusive evidence to the contrary."

"If the husband has had access, adultery on the wife's part will not justify a finding of illegitimacy."

The Court also noted: "The presumption under Section 112 can be drawn only if the child is born during the continuance of a valid marriage and not otherwise."

"Access or non-access must be in the context of sexual intercourse that is, in the sexual sense and therefore, in that narrow sense."

"Even the result of a genuine DNA test cannot escape from the conclusiveness of the presumption under Section 112 of the Evidence Act."

"Unless the absence of access is established, the presumption of legitimacy cannot be displaced."

The Court held that: "Herein this case, the allegation of the respondent is that he is entitled for decree of divorce for the reason that his wife i.e. petitioner No.1 is/was living an adulterous life. A question arises as to whether, this is an eminent case for passing order of DNA test. The candid answer to the same would-be emphatic no."

"Even if it is accepted for the sake of argument that the wife conceded the said request, still it was absolutely obligatory for the Court to consider best interest of the child."

"No one can be compelled to undergo blood test. In case of a minor child...the Court must become the custodian of rights of minor child."

The Court concluded that the Family Court had committed an error in facts as well as law while allowing the DNA test application. It stated the absence of any specific denial of paternity by the husband in pleadings or proceedings. The Court underscored the legal presumption of legitimacy under Section 112 and stated that it cannot be rebutted merely by seeking a DNA test without establishing non-access during the period of conception.

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The High Court observed that in none of the proceedings, including the notice dated 28/01/2013 or the petition for divorce, had the husband made a clear assertion denying his paternity. Therefore, the legal preconditions for ordering a DNA test under Section 112 were not fulfilled.

"The Family Court, therefore, has clearly erred in facts as well as law while passing the order impugned. Hence, the petitioner has made out a case to cause interference in the order impugned."

"The impugned order, therefore, stands set aside. Application [Exh.51] stands dismissed. The petition is allowed."

Case Title: S & Anr. vs. S

Neutral Citation: 2025: BHC-NAG:6350

Case Number: Writ Petition No. 3499 of 2020

Bench: Justice R.M. Joshi