Orissa High Court | Forcing DNA Test In Partition Suit To Determine Parentage Infringes Right To Privacy | Section 112 Evidence Act And Mother’s Testimony Held Conclusive
Sanchayita Lahkar
The High Court of Orissa Single Bench of Justice Bibhu Prasad Routray delivered judgment dismissing a petition that sought to challenge the trial court’s refusal to order a DNA test in a partition suit. The court held that no infirmity was present in the trial court’s decision to decline the request for a DNA test concerning the parentage of one of the defendants. Justice Routray concluded that compelling a DNA test in such circumstances would not serve any fruitful purpose, particularly given the admissions already made and the statutory presumptions under law. Consequently, the petition was dismissed, and the impugned trial court order stood confirmed.
The matter originated from a civil suit for partition filed before the Civil Judge (Senior Division), Kuchinda, registered as Civil Suit No.3 of 2018. The plaintiff, referred to as Opposite Party No.1, sought partition of the suit property. The petitioner, who was arrayed as Defendant No.1, contested the claim by filing a written statement and counterclaim. In his defense, Defendant No.1 disputed the entitlement of Defendant No.3 to any share in the suit property on the ground that Defendant No.3 was not the biological son of one Thutha Budula @ Kisan.
To support this claim, Defendant No.1 filed a petition dated 23 March 2024 seeking a direction from the trial court to conduct a DNA test of Defendant No.3 to establish his parentage. This request was considered and ultimately rejected by the trial court through order dated 2 December 2024. It was this rejection that formed the basis of the petition brought before the High Court of Orissa under Article 227 of the Constitution of India.
In the course of proceedings, the record reflected that the wife of late Thutha Budula had been examined as Prosecution Witness No.2. In her deposition, she expressly admitted that Defendant No.3 was the son of herself and her late husband, Thutha Budula. The petitioner did not dispute the status of P.W.2 as the legally wedded wife of Thutha Budula, nor was there any challenge to the validity of the marriage between them.
The case advanced by Defendant No.1 was centered solely on questioning the legitimacy of Defendant No.3’s claim as a son entitled to a share in the partition. The request for DNA testing was thus tied directly to this challenge of parentage. However, the trial court rejected the request, observing that the same was unwarranted in the context of a partition suit.
The petitioner then invoked the supervisory jurisdiction of the High Court under Article 227 of the Constitution, contending that the trial court had erred in refusing to allow the DNA test. The respondent parties, however, opposed the petition, contending that the trial court’s reasoning was sound and consistent with settled principles of law.
The statutory provisions invoked during the proceedings included Section 112 of the Indian Evidence Act, which provides for conclusiveness of legitimacy of a child born during the continuance of a valid marriage unless it can be shown that the parties to the marriage had no access to each other at the relevant time.
The factual position also recorded that Defendant No.3 was 58 years of age at the time of the hearing before the High Court. In these circumstances, the trial court had noted that a DNA test at such a stage would serve no useful purpose.
Justice B.P. Routray, while considering the matter, referred extensively to precedents of the Supreme Court on the subject of DNA testing in civil disputes. The court recorded: “In a suit for partition, the prayer for DNA test to determine parentage of rival party is unwarranted. It is to be borne in mind that forcing a person to undergo DNA test affects his right to privacy.”
The judgment cited Bhabani Prasad Jena v. Convenor Secretary, Orissa State Commission for Woman and another, (2010) 8 SCC 633, noting: “In our view, when there is apparent conflict between the right to privacy of a person not to submit himself forcibly to medical examination and duty of the court to reach the truth, the court must exercise its discretion only after balancing the interests of the parties and on due consideration whether for a just decision in the matter, DNA test is eminently needed. DNA test in a matter relating to paternity of a child should not be directed by the court as a matter of course or in a routine manner, whenever such a request is made. The court has to consider diverse aspects including presumption under Section 112 of the Evidence Act; pros and cons of such order and the test of “eminent need” whether it is not possible for the court to reach the truth without use of such test.”
The court also referred to earlier Supreme Court decisions in Goutam Kundu v. State of West Bengal, (1993) 3 SCC 418 and Sharda v. Dharmpal, (2003) 4 SCC 493. Justice Routray noted: “In Goutam Kundu, it has been laid down that courts in India cannot order blood test as a matter of course and such prayers cannot be granted to have roving inquiry; there must be strong prima facie case and the court must carefully examine as to what would be the consequence of ordering the blood test. In Sharda while concluding that a matrimonial court has power to order a person to undergo a medical test, it was reiterated that the court should exercise such a power if the applicant has a strong prima facie case and there is sufficient material before the court.”
Addressing the facts of the present case, the court observed that the mother of Defendant No.3 had already testified that Defendant No.3 was her son with late Thutha Budula. Justice Routray noted: “The mother has stated in her cross-examination that Defendant No.3 is her son through Thuta Budula. Moreover, Defendant No.1 does not dispute status of P.W.2 as the wife of Thuta Budula, who is dead now, nor does he dispute valid marriage between P.W.2 and Thuta Budula at any point of time.”
The court further observed: “In such situation, directing for DNA test of the child on the face of admission of the mother would be an insult to her motherhood and against the law enumerated in section 112 of the Evidence Act. Apart from this, it is inconceivable how the DNA test would be relevant in a case of partition where the status of the parties as the members of joint family is required to be seen to determine their respective shares.”
Justice Routray also cited Satyanarayan Chandra Deo v. Kumari Rajamani Deo, 60 (1985) C.L.T. 414, wherein it had been observed that “the mother of the child is the best witness to prove his paternity.” Similarly, reference was made to Kamti Devi v. Poshi Ram, (2001) 5 SCC 311, where it was observed: “The result of a genuine DNA test is said to be scientifically accurate. But even that is not enough to escape from the conclusiveness of Section 112 of the Act e.g. if a husband and wife were living together during the time of conception but the DNA test revealed that the child was not born to the husband, the conclusiveness in law would remain irrebuttable.”
In the light of these legal principles, the court found that there was no justification for interfering with the trial court’s order.
Justice Routray concluded the judgment with the following determination: “Keeping in view the principles laid down, as above, on the authority of the Court to direct for DNA test and the facts of the case at hand, I do not see this as a fit case to be directed for DNA test of Defendant No.3. No infirmity is seen in the order of the learned trial court refusing the prayer of the Petitioner.”
Accordingly, the petition was dismissed. The final operative part of the order read: “Resultantly, the CMP is dismissed.”
Advocates Representing the Parties
For the Petitioner: Mr. B. Sahoo, Advocate
For the Opposite Parties: Mr. A. P. Bose, Advocate
Case Title: Golapi Majhi v. Bhabanishankar Budulal @ Kisan and Others
Case Number: CMP No.758 of 2025
Bench: Justice Bibhu Prasad Routray
