IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH

CR-38-2016(O&M)

Date of Decision: August 12, 2025

Anil Kumar Garg

...Petitioner

Versus

Sahil Garg and another

...Respondents

CORAM: HON'BLE MRS. JUSTICE ARCHANA PURI

Present:Mr.Akshay Jindal and Mr.Vijayveer Singh, Advocates

for the petitioners.

Mr.Nandan Jindal and Mr.Aniket Singla, Advocates

for the respondents.

****

ARCHANA PURI, J.

Challenge in the present revision petition is to the order dated

27.11.2015 passed by learned trial Court, thereby, allowing an application

filed by the respondent No.1-plaintiff and ordered conducting of DNA test

of the petitioner-defendant No.1.

For the convenience of discussion, the parties are referred to as

making appearance before learned trial Court.

The facts germane to be noticed, are as follows:-

That, plaintiff Sahil Garg had filed a suit for declaration, thereby,

asserting himself to be son of defendant No.1-Anil Kumar Garg and

defendant No.2-Smt.Anita. Therein, he averred that he had filed a petition

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under Section 125 Cr.P.C., through his mother i.e. defendant No.2, being

minor at that time and in the written statement/reply filed to the same,

defendant No.1 denied the parentage of the plaintiff and stated therein that

plaintiff is not the biological son of defendant No.1. Also, it was averred in

the plaint that defendant No.1 came into contact with defendant No.2 i.e.

mother of the plaintiff Smt.Anita, in the year 1988, as he took the

accommodation in the house of defendant No.2 as tenant. With the passage

of time, relations developed between defendant No.1 and defendant No.2

and accordingly, they started living as husband and wife and from their

wedlock, the plaintiff was born in the year 1990.

Also, it was averred that the plaintiff lived along with defendants

No.1 and 2, till the year 2000 and in the year 2000, defendant No.1 had left

the house and since then, the plaintiff is living with his mother. The plaintiff

is well aware that defendant No.1 was living with defendant No.2, as

husband and plaintiff used to address defendants No.1 and 2, as ‘Papa’ and

‘Mummy’. He was 10 years old, at the relevant time. He also further

asserted that father’s name in the school record was got mentioned as

R.C.Bhola, i.e. earlier husband of defendant No.2, by defendant No.1 in

clandestine manner. The plaintiff is real son of defendant No.1, as mother

of the plaintiff conceived pregnancy from the loins of defendant No.1, but

defendant No.1 is running from his liability/duty and on this account,

plaintiff sought declaration.

Upon notice, both the defendants i.e. Anil Kumar Garg and

Anita had made appearance and filed their respective written statements.

CR-38-2016 -3-

Defendant No.1-Anil Kumar Garg, in the written statement, asserted about

the claim of date of birth of the plaintiff to be 1990. However, defendant

No.2-Smt.Anita filed a criminal complaint against defendant No.1, under

Sections 376, 406, 493, 494, 495, 496 IPC read with Section 120-B IPC,

vide criminal complaint No.29 of 2001. Therein, defendant No.2 had

alleged her marriage with defendant No. on 16.12.1998. The complaint was

dismissed by the then Additional Chief Judicial Magistrate vide judgment

dated 07.05.2012. In the same, it was also averred by defendant No.2 that

she had divorced her previous husband Sh.R.C.Bhola, on 26.02.1994.

Even, the appeal filed against the judgment was dismissed.

On merits, it was averred about the plaintiff to be a stranger to

defendant No.1. The contents of paragraph No.4 of the plaint, as such, were

averred to be incorrect and it was further stated that the plaintiff is not son

of defendant No.1. Defendants No.1 and 2 never lived together. The

question of desertion, on the part of defendant No.2 by defendant No.2, as

such, does not arise.

Defendant No.2-Anita, in the written statement, admitted her

relationship. By and large, all the assertions made by the plaintiff were

admitted to be correct and a prayer was made for passing of the appropriate

order, keeping in view the facts and circumstances of the case.

During the pendency of the aforesaid case, when it was at the

stage of recording of the evidence, an application under Section 75(e) and

Order 26 Rule 10-A CPC, for issuance of direction to defendant No.1, to get

his DNA test conducted from the expert, for scientific investigation was

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filed. It was asserted that defendant No.2-mother of the plaintiff has

disclosed that defendant No.1 is the father of the plaintiff and that there is

ample evidence, coming on record, to establish about the plaintiff to be son

of defendant No.1. Keeping in view the same, a prayer was made for

conducting of the DNA test upon defendant No.1, to prove the fatherhood of

the plaintiff, to meet the ends of justice.

Reply to the said application was filed by defendant No.1,

thereby, resisting the claim of the plaintiff for conducting DNA test.

After hearing counsel for the parties and also considering the

material coming on record, learned trial Court allowed the application for

conducting of the DNA test of defendant No.1 and furthermore, a direction

was given to the parties to appear at Forensic Science Laboratory,

Madhuban, Karnal, for drawing samples of blood with police help, if

required and further also, it was observed that in case, the police assistance

is found absolutely necessary, then a direction is issued to the police to offer

help with reasonable care, in case resistance is made by the defendant.

Being aggrieved by the aforesaid order, defendant No.1-Anil

Kumar Garg has filed the present revision petition.

Upon notice, respondents made appearance through counsel.

Learned counsel for the parties heard.

At the very outset, it is submitted by learned counsel for the

petitioner-defendant No.1 that there is ample evidence, brought on record, to

establish the hollowness of the case, as pleaded by respondent No.1-

plaintiff. In fact, it is submitted that from the assertions of the defendant

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No.2, who is mother of the plaintiff, as evident from other round of

litigation, it stands established that defendant No.2 was married to one

Sh.R.C.Bhola. She took divorce from Sh.R.C.Bhola on 26.02.1994 and

allegedly married defendant No.1 on 16.12.1998. The plaintiff asserts his

birth in the year 1990, though, no further particulars have been given.

Therefore, the plaintiff was born during the subsistence of marriage of his

mother with Sh.R.C.Bhola.

Such being the circumstances coming forth, it is submitted that

presumption under Section 112 of the Indian Evidence Act, has to be raised

and there is no evidence, coming on record, about the mother of the

plaintiff, having no access to her husband Sh.R.C.Bhola, at that time, when

the plaintiff was begotten and thus, paternity in any manner, cannot be

fastened upon petitioner-defendant No.1.

In fact, learned counsel for the petitioner emphasized upon the

plaintiff to be a stranger to defendant No.1. That being so, it is submitted

that defendant No.1 cannot be made to undergo DNA test, which infringes

upon his right of dignity and privacy. Thus, he cannot be compelled,

pressurized or forced, in any manner, to provide blood samples for DNA

testing.

To substantiate further, about the conduct and circumstances to

be taken into consideration, while ordering DNA test, learned counsel for

the petitioner has relied upon Goutam Kundu vs. State of West Bengal,

1993(2) RCR (Criminal) 497, Sharda vs. Dharmpal, 2003(2) RCR (Civil)

795, Ashok Kumar vs. Raj Gupta & Ors., 2021 INSC 587, Bhabani Prasad

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Jena vs. Convenor Secretary, Orissa State Commission for Women & Anr.,

2010 (4) RCR (Civil) 53 and Ivan Rathinam vs. Milan Joseph, 2025 INSC

115.

Thus, summing up, it is submitted by learned counsel for the

petitioner-defendant No.1 that the impugned order be set aside and the

application be dismissed.

On the other hand, learned counsel for the respondents

vehemently submits that the plaintiff, who is major, asserts about defendant

No.1 to be his father. Therefore, it is in his ‘best interest’ that defendant

No.1 undergoes the DNA test, as he has right to know about his parentage

and accruing rights, emanating therefrom. Learned counsel referred to the

pleadings of the case to assert about the manner of the circumstances,

coming forth, which constrained the plaintiff to file the suit, to know who

fathered him. It is further submitted that the Courts, time and again, have

reiterated the guidelines to be taken into consideration, while ordering such

a test, which is best suited for the child, who comes to the Court and the

proportional force for necessary compliance of undergoing the DNA test,

can be made. Beneficial reference is made to Rohit Shekhar vs. Narayan

Dutt Tiwari and another, 2012 (2) RCR (Civil) 1011.

The advent of scientific testing has made it much easier to

prove that a child is a particular person’s offspring. However, the Courts

have time and again cautioned the sparing use of the DNA testing.

Before proceeding further, it is essential to take note of Section

112 of the Indian Evidence Act, which is reproduced, as herein given:-

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“112. Birth during marriage, conclusive proof of legitimacy.

The fact that any person was born during the continuance of a

valid marriage between his mother and any man, or within two

hundred and eighty days after its dissolution, the mother

remaining unmarried, shall be conclusive proof that he is the

legitimate son of that man, unless it can be shown that the

parties to the marriage had no access to each other at any time

when he could have been begotten.”

The very language of the aforesaid provision makes it

sufficiently clear about there to be existing a strong presumption that the

husband is the father of the child, borne by his wife during the subsistence

of their marriage. It provides that conclusive proof of legitimacy is

equivalent to paternity. However, the object of this principle is to prevent

any unwarranted enquiry, into the parentage of the child. Considering the

same, in Ivan’s case (supra), it was held by the Hon’ble Supreme Court

since the presumption is in favour of legitimacy, the burden is cast upon the

person, who asserts ‘illegitimacy’ to prove it only through ‘non-access.’

Furthermore, it was also observed as herein given:-

“29. It is well-established that access and non-access under

Section 112 do not require a party to prove beyond reasonable

doubt that they had or did not have sexual intercourse at the

time the child could have been begotten. ‘Access’ merely refers

to the possibility of an opportunity for marital relations.30 To

put it more simply, in such a scenario, while parties may be on

non-speaking terms, engaging in extra-marital affairs, or

residing in different houses in the same village, it does not

necessarily preclude the possibility of the spouses having an

opportunity to engage in marital relations. Non-access means

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the impossibility, not merely inability, of the spouses to have

marital relations with each other. For a person to rebut the

presumption of legitimacy, they must first assert non-access

which, in turn, must be substantiated by evidence.”

Furthermore, it was also observed that it is only when the

aforesaid assertion is made, that the court can consider the question of

ordering a DNA test to establish paternity. Also, reference was made to

Goutam Kundu’s case (supra), whereby, the Hon’ble Supreme Court had

laid down the parameters to decide whether a Court can order a DNA test

for the purpose of Section 112. This was again reiterated as under:-

“(1) that courts in India cannot order blood test as a matter of

course;

(2) wherever applications are made for such prayers in order to

have roving inquiry, the prayer for blood test cannot be

entertained.

(3) There must be a strong prima facie case in that the husband

must establish non-access in order to dispel the presumption

arising under Section 112 of the Evidence Act.

(4) The court must carefully examine as to what would be the

consequence of ordering the blood test; whether it will have the

effect of branding a child as a bastard and the mother as an

unchaste woman.

(5) No one can be compelled to give sample of blood for

analysis.”

Thus, in Goutam Kundu’s case (supra), the Hon’ble Supreme

Court had cautioned against conducting of the scientific test of the nature of

giving blood samples, for the purposes of DNA testing, in a routine manner,

but did not altogether ban their conduct upon the third party.

CR-38-2016 -9-

In Sharda’s case (supra) as well as in Bhabani’s case (supra), the

Apex Court has held that there is no violation of the right to life, or privacy

of a person, in directing a DNA test to be undergone by him-to undergo such

test is not an invasion of his right to life. However, it was held that DNA

test may be ordered, only if a strong prima facie case of non-access is made

out, without sufficient material placed before the Court to arrive at a

decision.

However, the rationale of the aforesaid decisions, is relating to

any of the partner to the subsisting marriage, resisting the parenthood of the

child. This ought to be taken into consideration, while assailing the order in

question.

In Ivan’s case (supra), it was thus held that there has to be

‘balancing of interest’ and the ‘eminent need’ for the DNA test. It has to be

kept in mind that in the case in hand, there is additional access impliedly

asserted and the same in itself, may not automatically negate the access

between the spouses, during the subsistence of marriage and non-access has

to be proved. In this regard, the claim of the mother of a person, who

knocked the door of the Court, would be of utmost importance, to be taken

note of. Considering the same, as held in Ivan’s case (supra), there has to

be balancing of interest and the eminent need for DNA test.

In Ivan’s case (supra), the Hon’ble Supreme Court, consciously

observed about taking into consideration the interest of all the stakeholders,

while ordering the DNA test and also considered the ‘eminent need’. It

was observed, as herein given:-

CR-38-2016 -10-

“46. When dealing with the eminent need for a DNA test to

prove paternity, this Court balances the interests of those

involved and must consider whether it is possible to reach the

truth without the use of such a test.

47. First and foremost, the courts must, therefore, consider the

existing evidence to assess the presumption of legitimacy. If

that evidence is insufficient to come to a finding, only then

should the court consider ordering a DNA test. Once the

insufficiency of evidence is established, the court must consider

whether ordering a DNA test is in the best interests of the

parties involved and must ensure that it does not cause undue

harm to the parties. There are thus, two blockades to ordering

a DNA test: (i) insufficiency of evidence; and (ii) a positive

finding regarding the balance of interests.

However, in the case under consideration, in Ivan’s case,

considering its own peculiar facts and circumstances and when seemingly,

there was ample evidence to presume legitimacy and that there was no

confusion, as to whether the presumption would apply, it was held that

balance of interest do not support mandating the DNA testing, as it is likely

to have a disproportionately adverse impact, on the person, who knocked the

door of the Court as well as the respondent’s mother and on this account, it

was held that there is no ‘eminent need’ for a DNA test.

The presumption of legitimacy of child born from the

subsistence of lawful wedlock provided under Section 112 of the Indian

Evidence Act, is directed towards safeguarding the interest of the child and

protecting him from gaining the status of ‘bastard’, in the event that his

paternity is in question.

CR-38-2016 -11-

However, it is not so in the case in hand. The rationale laid

down in the decisions aforesaid, where it was one partner of the marriage,

who resisted the parenthood, in any manner, would not apply, where a child

on attaining adulthood moves to the Court to assert his paternity. In that

eventuality, application of Section 112 of the Indian Evidence Act does not

arise.

In Rohit Shekhar vs. Narayan Dutt Tiwari and another,

2011(4) RCR (Civil) 459, the Hon’ble Delhi High Court held that where

there is a dispute over, whether a person was biological father of a child or

not, the Court has a right to order DNA test of the person. Also, it was

observed that birth of a child, during the subsistence of valid marriage, is

conclusive of legitimacy of a child under Section 112 of the Indian evidence

Act. It was also held that however, it is not conclusive proof of paternity,

which ought to be established by scientific test.

Further, while deciding IA No.10394 of 2011, in C.S. (OS) No.700 of

2008, the Hon’ble Delhi High Court had further held that the Court can

direct a person to give blood sample for DNA test to ascertain the paternity

and on refusal of such person to give sample, the Court has no power to

compel him to give sample. But however, the Court may draw adverse

inference, in the facts of the case, but not in all cases. Therein, the Hon’ble

Court had also collated the principle laid down by the Hon’ble Supreme

Cout as well as by the High Court, in several judicial pronouncements and

observed as herein given:-

“216. In this background, it would be appropriate to collate the

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principles laid down by the Supreme Court as well as the High

Courts in the several judicial pronouncements noticed

hereinabove which are to the following effect:-

(i) A matrimonial court and the civil court have the implicit and

inherent power to order a person to submit himself for medical

examination (Re: Sharda)

(ii) The court under section 75(e) of the CPC and order XXVI,

rule 10A has the requisite power to issue a direction to hold a

scientific, technical or expert investigation. (Re : Sharda; Selvi)

(iii) Passing of an order for medical examination would not be

in violation of the right to personal liberty under Article 21 of

the Indian Constitution (Re : Goutam Kundu)

(iv) The direction for the medical examination can be issued

suo motto by the court or upon an application filed by a party

(Re : Sharda) The principles of natural justice would require to

be complied with.

(v) The court would examine that the proportionality of the

legitimate aims being pursued are not arbitrary, discriminatory

or pointless or which may adversely impact the best interest of

the child (for instance, bastradise a child) and that they justify

the restrictions on privacy and personal autonomy concerns of

the person directed to be subjected to medical examination.

(vi) The court should not exercise such power as matter of

course or in order to have a roving inquiry (Re : Goutam

Kundu) Such power would be exercised if the applicant has a

strong prima facie case and there is sufficient material before

the court (Re: Sharda) The court would consider the age;

physical and mental health of the persons involved.

(vii) No one can be compelled to give a sample of blood for

analysis (Re:Goutam Kundu). If despite the order of the court,

the respondent refuses to submit himself to medical

examination, the court will be entitled take the refusal on

record and to draw an adverse inference against him (Re:

Sharda)

(viii) A direction to a person to undergo a medical examination

could be made to enable the court to leading the truth; in

matrimonial cases also for removal of misunderstanding,

bringing a party to terms; for judging competency of a person

to be a witness; whether a person/party needs treatment or

protection; the capacity of a person/party to protect his interest

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or defence in litigation; whether the person needs legal aid

(Re;Sharda)

(ix) In a case involving a paternity claim/denial issue, the

conclusive proof standard mandated by Section 112 of the

Evidence Act, read with Section 4, admits an extremely limited

choice before the Court, to allow evidence of "non access" to a

wife by the husband, who alleges that the child begotten by her

is not his offspring; it is designed to protect the best interests of

the child, and his legitimacy (Re: Goutam Kundu ; Rohit

‟

Shekhar (Bhat, J - DOJ 23rd December, 2010)

(x) A "paternity" action by the son or daughter of one, claiming

the defendant to be his or her biological father, filed in a civil

court by an adult plaintiff, or claims paternity, for other

reasons, (such as non- consensual sexual relationship the basis

of facts, and on the basis of the child s rights/either under

‟

Section 125 Cr.PC, or in a suit for declaration or for

maintenance) cannot be jettisoned by shutting out evidence,

particularly based on DNA test reports, on the threshold

application of Section 112; the Court has to weigh all pros and

cons, and, on being satisfied about existence of "eminent need"

make appropriate orders; (Re: Goutam Kundu; Bhabhani

Jena; Rohit Shekhar (Bhat, J- DOJ 23rd December, 2010)

(xi) In a case involving a parentage issue, the child s best

‟

interest shall dominate the consideration by the court. The

court may refrain from ordering a test if it considers that this

may not be in the child s best interest." The court would also

‟

consider the reasons for refusal of the examination of the child

by the party having custody and make appropriate orders

based on the best interest principle.”

(xii) XXXX XX XX XXXX

(xiii) XXXX XX XX XXXX

(xiv) XXXX XX XX XXXX

(xv) XXXX XX XX XXXX

(xvi) XXXX XX XX XXXX

(xvii) XXXX XX XX XXXX

(xviii)XXXX XX XX XXXX

(xix) XXXX XX XX XXXX

(xx) XXXX XX XX XXXX

Also, it was observed that these guidelines, would guide

consideration of an application for medical examination, before

a civil court and matrimonial court.

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However, in FAO (OS) No.547 of 2011 decided on 27.04.2012,

titled Rohit Shekhar vs. Narayan Dutt Tiwari and another, 2012(2) RCR

(Civil) 1011, the Hon’ble Division Bench had observed that if, in case of

refusal of the compliance of the direction given by the Court to undergo

DNA testing to determine the paternity of a child, the Court can order use of

police force to take the sample. However, in Ivan’s case (supra), the

Hon’ble Supreme Court, reiterated the guidelines, wherein it was observed

that no one can be compelled to give sample of blood for analysis. Also

that, the ordering of DNA test, while taking into consideration and balancing

the interest and the eminent need for the DNA test and that the Courts must

be mindful of the collateral infringement of the privacy, on which, balancing

of interest, has to be made. The parameters laid down in Goutam Kundu’s

case (supra), for DNA testing to establish paternity, were reiterated and

observed about the same to have been followed in Sharda’ s case (supra)

and Bhabani’s case (supra) and thereupon, observed about the Courts to

undertake the exercise of balance of interest of the parties involved and

decide, whether there is eminent need for the DNA test and that this

pertains, not simply to the interest of the child, but also to the interest of the

other side.

Further, it was observed therein that forcefully undergoing a DNA

test, would subject to individual’s private life to scrutiny from the outside

world and the consequences of the same were also noticed and applying this

principle, as observed aforesaid, it was concluded about there to be no

eminent need for DNA test, while appraising the factual circumstances of

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the case under consideration.

In this backdrop, adverting to the case in hand, it is pertinent to

mention that it is the child, who is now major, who has come forth to assert

paternity upon defendant No.1. In view of the contents of the plaint, which

as such, have not been controverted by his mother i.e. defendant No.2, in

her written statement and that being read, in the light of the denial of

defendant No.1, of he being the father and who had further asserted about

the plaintiff to be stranger to him, presumption under Section 112 of the

Indian Evidence Act, would not arise, when impliedly, additional access of

the mother of the plaintiff, at the relevant time of begetting of the plaintiff,

at the behest of defendant No.1, is asserted.

Considering the same, at this stage, ‘balancing of the interest’ and the

‘eminent need’ has to be looked into. The child, as a plaintiff, has a right to

know his parentage in the context of denial of relationship by defendant

No.1, in one of the rounds of litigation of defendant No.1 with defendant

No.2. Justice to this child/plaintiff, is a factor, not to be ignored. Rather, his

assertion demands that truth be known, when truth has to be established, as

it undoubtedly can.

Simultaneously, the right of defendant No.1 to privacy and dignity,

also has to be taken into consideration. However, the right of privacy, as

such, cannot override the right of the child and vest interest in his favour.

So far as, the stakeholders are concerned, it is pertinent to mention that the

child, who asserts defendant No.1 to be his father, is major and while

asserting paternity, he is thus very well aware of the consequences of the

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order, which may downsize his position and that of his mother, in the

society. Even, mother of the plaintiff is of mature age and she is bound to

be well aware of the consequences of the action of her son and his claim qua

the paternity issue. They having come forward unhesitatingly has to be

considered.

That being so, now the claim of defendant No.1, to be looked into.

There is simple denial, more particularly to the contents of paragraph No.4

of the plaint, which reads as herein given:-

“4.That the defendant No.1 came into contact of defendant

No.2 in the year 1988 as he took the accommodation in the

house of defendant No.2 as tenant and with the passage of time,

the relations developed between the defendant No.1 & 2 and

accordingly they started living together as husband and wife at

the said address and from their wedlock, the plaintiff was born

in the year 1990.”

Rather, it was also asserted in the written statement that

plaintiff is not the son of defendant No.1 and that he is a stranger to him. In

the plaint, it was also asserted by the plaintiff that he was taken care of by

defendant No.1, who was living with defendant No.2, as husband and wife

and that he used to address them as ‘Papa’ and ‘Mummy’ and they used to

address him as ‘Beta’.

It is also evident that defendant No.2-mother of the plaintiff,

did not deny the relationship. Rather, while conducting cross-examination

of the witnesses, has put forth the claim about showering of love and

affection, towards the plaintiff, at the behest of defendant No.1 and the few

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of the photographs, depicting the trio to be a happy-go family, has also been

placed on record.

The DNA test is surer test to affix the paternity. If the plaintiff

and defendant No.1 are strangers in any manner as asserted, no injustice

shall be done to defendant No.1 by conducting of this test. Rather, if he is

father, his position will be put beyond doubt by the testing and the paternity

as pleaded shall be ascertained. Why there should be any hesitation to

undergo this test is not coming forth. Of course, the evidence is to be led by

both the sides, but the question arises, when the paternity can be affixed by

surer test, then why decision based on legal presumption or gathering of

inference, on the basis of the evidence or any gap, on account of

misjudgment, be left. Considering all these aspects, this test will surely

assist the Court to reach the right conclusion, vis-a-vis, relationship between

the parties concerned. That being so, it ought to be undertaken.

However, use of force as ordered by the trial Court, need not to be

carried out. At this stage, eventuating such circumstance, will go too far to

conclude about there to be no inclination, on the part of defendant No.1, to

undergo this test. But anyhow, the compliance/non-compliance, or there

being no inclination, the inference of this conclusion, will be noted by the

trial Court, at the appropriate stage, in the light of the guidelines, as

observed in Ivan’s case (supra), that ‘no one can be compelled to give

sample of blood’.

With these observations, the revision petition is hereby

dismissed with modification of conducting of the test, but without any

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compel or assistance of the police. In the eventuality of any disinclination,

on the part of defendant No.1 and the reason therefor, to be recorded by the

trial Court, shall be appraised by the trial Court, at appropriate stage, in the

backdrop of the other evidence, brought on record.

However, the observations aforesaid are circumscribed purely

for the purposes of disposal of the revision petition and shall not in any

manner, be construed as expression on merits of the case.

August 12, 2025 (ARCHANA PURI)

Vgulati JUDGE

Whether speaking/reasoned Yes

Whether reportable Yes/No