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MP-5428 of 2023

IN THE HIGH COURT OF MADHYA PRADESH

AT JABALPUR

BEFORE

HON’BLE SHRI JUSTICE VIVEK JAIN

MISC. PETITION No. 5428 of 2023

KAMLA PATEL

Versus

GOVIND BAHADUR

……………………………………………………………………………………………

Appearance:

Shri Anuj Pathak - Advocate for the petitioner.

Shri Sheetal Tiwari- Advocate for the respondent.

.……………………………………………………………………………………………

O R D E R

(Reserved on 19.11.2025)

(Pronounced on 20.01.2026)

The present petition has been filed by the petitioner-wife,

challenging the order Annexure-P2 dated 18-08-2022 passed by the Family

Court Jabalpur, whereby the Family Court has allowed application of the

respondent-husband to conduct Deoxyribonucleic Acid Test (DNA Test) to

determine whether the girl child born during wedlock of the parties to the

marriage is biological child of the respondent-husband, or not.

2. The counsel for the petitioner has vehemently argued that to protect

right to privacy, the Family Court could not have issued directions for

DNA test of the child to determine that whether she is biological daughter

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MP-5428 of 2023

of the respondent-husband, who has filed divorce petition before the

Family Court, because it would invade the right of privacy of the individual

and also create unnecessary clouds over legitimacy of the child which are

not in the interest of the child nor in the interest of the parties. By placing

reliance on judgment of the Hon’ble Supreme Court in the case of Aparna

Ajinkya Firodia vs Ajinkya Arun Firodia, 2024 (7) SCC 773, it is argued

that there is presumption of legitimacy as per Section 122 of Indian

Evidence Act and such presumption cannot be lightly interfered with or

demolished and the Courts cannot order DNA test as a matter of routine

course only at the asking of one party to the marriage. It is argued that the

right to privacy, autonomy and identity of the children under the

convention on child rights have to be respected and best interests of the

child have to be secured by the Courts while giving such directions. No

child can be branded as illegitimate which casts shadow on identity of the

child and therefore the impugned order deserves to be set aside. It is further

argued that the conclusive presumption available under section 112 of the

Evidence Act can be rebutted by use of DNA evidence only when there are

compelling circumstances linked with access of the parties to each other

which cannot be liberally used at a drop of hat on mere of asking of one of

the parties to the marriage and therefore the impugned order deserves to be

set aside.

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MP-5428 of 2023

3. Per contra, it is argued by learned counsel for the respondent

husband that the present petition has no legs to stand because it is filed with

suppression of material fact. It is argued that in the divorce petition filed by

the respondent husband sufficient pleadings are made in the matter of non-

access in terms of Section 112 of Evidence Act and also that the present

divorce petition is the third divorce petition between the parties. The first

divorce petition was filed in the year 2019 and the parties appeared before

the Family Court and stated that they would file a fresh application seeking

divorce with mutual consent because there has been settlement between the

parties to seek divorce by mutual consent. Thereafter, the second

application was filed in the year 2019 itself under Section 13-B of Hindu

Marriage Act, 1955 and the wife appeared on first motion on 14.10.2019

but despite repeated opportunities given by the Family Court did not appear

in second motion and ultimately the Family Court closed the divorce

petition on account of non-appearance of the wife on 2-3-2021. Thereafter,

this third divorce petition has been filed by the respondent-husband.

4. It is vehemently argued that the respondent-husband is posted in

Indian Army and he visits his wife only once every 3 months or 6 months

and that too, for a few days. The petitioner-wife is constable in MP Police

and is posted at Jabalpur. It is contended that in the divorce petition which

has deliberately not been filed before this Court by the petitioner, there are

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MP-5428 of 2023

sufficient pleadings in the matter of non-access of the husband to the wife

at the time when the child could have been conceived by the petitioner-

wife. It is argued that in the divorce petition sufficient pleadings are made

in Para-4 that in October, 2015 the husband was called from his duty by the

wife and within four days the wife intimated the husband that she has

conceived a child and is pregnant. The husband being a soldier did not have

any knowledge of such biological facts that when the factum of pregnancy

becomes known, and he believed the petitioner-wife and within eight

months, the girl child was born to the wife. Thereafter, when the husband

consulted doctors then he came to know that conception of a child cannot

be known within four days and that it can be known by the lady only atleast

20 to 30 days after conception and also that the date of delivery of the child

is within eight months of October, 2015 which is also not possible and the

husband had no access to the wife when the child had been conceived and

he had been called in October, 2015 from his duty in Army posting only so

as to instill false belief in the mind of the husband that he is the biological

father of the child. On these grounds, it is prayed to reject the present

petition by upholding the direction to carry out the DNA test of the child.

5. Heard learned counsel for the parties and perused the record.

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MP-5428 of 2023

6. In the present case the divorce petition has been filed on the ground

of adultery. It is not the case where the husband wants to know the

paternity of the child or he wants to repudiate the liability to maintain the

child or for any other purpose. It is the case where DNA test of the child is

being sought only to prove the fact of adultery of the wife. In the case of

adultery the matter was considered by the Hon’ble Supreme Court in the

case of Dipanwita Roy v. Ronobroto Roy, (2015) 1 SCC 365. It was the

case where the husband had prayed for a DNA test to establish the ground

of adultery of the wife and the issue of the legitimacy of the child was only

an incidental issue and it was not the main issue. The main issue which was

involved in the matter was adultery of the wife. The Hon’ble Supreme

Court considered Section 112 of Evidence Act and considering the legal

position, the Hon’ble Apex Court held that in such cases where the ground

of adultery is involved, in appropriate cases out of such cases, DNA test

can be ordered. The Hon’ble Supreme Court held as under:-

“9. The learned counsel for the appellant wife, in the first

instance, invited our attention to Section 112 of the Evidence

Act. The same is being extracted hereunder:

“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.”

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MP-5428 of 2023

Based on the aforesaid provision, the learned counsel for the

appellant wife drew our attention to decision rendered by the

Privy Council in Karapaya Servai v. Mayandi [(1934) 39 LW

244 : AIR 1934 PC 49] , wherein it was held, that the word

“access” used in Section 112 of the Evidence Act, connoted only

the existence of an opportunity for marital intercourse, and in

case such an opportunity was shown to have existed during the

subsistence of a valid marriage, the provision by a fiction of law,

accepted the same as conclusive proof of the fact that the child

born during the subsistence of the valid marriage, was a

legitimate child. It was the submission of the learned counsel for

the appellant wife, that the determination of the Privy Council

in Karapaya Servai case [(1934) 39 LW 244 : AIR 1934 PC 49]

was approved by this Court in Chilukuri

Venkateswarlu v. Chilukuri Venkatanarayana [(1953) 2 SCC

627 : AIR 1954 SC 176 : 1954 SCR 424] .

13. All the judgments relied upon by the learned counsel for the

appellant were on the pointed subject of the legitimacy of the

child born during the subsistence of a valid marriage. The

question that arises for consideration in the present appeal

pertains to the alleged infidelity of the appellant wife. It is not

the husband's desire to prove the legitimacy or illegitimacy of the

child born to the appellant. The purpose of the respondent is to

establish the ingredients of Section 13(1)(ii) of the Hindu

Marriage Act, 1955, namely, that after the solemnisation of the

marriage of the appellant with the respondent, the appellant had

voluntarily engaged in sexual intercourse with a person other

than the respondent. There can be no doubt that the prayer made

by the respondent for conducting a DNA test of the appellant's

son as also of himself was aimed at the alleged adulterous

behaviour of the appellant. In the determination of the issue in

hand, undoubtedly, the issue of legitimacy will also be

incidentally involved. Therefore, insofar as the present

controversy is concerned, Section 112 of the Evidence Act would

not strictly come into play.

16. It is borne from the decisions rendered by this Court

in Bhabani Prasad Jena [Bhabani Prasad Jena v. Orissa State

Commission for Women, (2010) 8 SCC 633 : (2010) 3 SCC (Civ)

501 : (2010) 3 SCC (Cri) 1053] and Nandlal Wasudeo

Badwaik [Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik,

(2014) 2 SCC 576 : (2014) 2 SCC (Civ) 145 : (2014) 4 SCC

(Cri) 65] that depending on the facts and circumstances of the

case, it would be permissible for a court to direct the holding of

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MP-5428 of 2023

a DNA examination to determine the veracity of the allegation(s)

which constitute one of the grounds, on which the party

concerned would either succeed or lose. There can be no dispute,

that if the direction to hold such a test can be avoided, it should

be so avoided. The reason, as already recorded in various

judgments by this Court, is that the legitimacy of a child should

not be put to peril.

17. The question that has to be answered in this case is in respect

of the alleged infidelity of the appellant wife. The respondent

husband has made clear and categorical assertions in the

petition filed by him under Section 13 of the Hindu Marriage

Act, alleging infidelity. He has gone to the extent of naming the

person who was the father of the male child born to the appellant

wife. It is in the process of substantiating his allegation of

infidelity that the respondent husband had made an application

before the Family Court for conducting a DNA test which

would establish whether or not he had fathered the male child

born to the appellant wife. The respondent feels that it is only

possible for him to substantiate the allegations levelled by him

(of the appellant wife's infidelity) through a DNA test. We

agree with him. In our view, but for the DNA test, it would be

impossible for the respondent husband to establish and confirm

the assertions made in the pleadings. We are therefore satisfied

that the direction issued by the High Court, as has been

extracted hereinabove, was fully justified. DNA testing is the

most legitimate and scientifically perfect means, which the

husband could use, to establish his assertion of infidelity. This

should simultaneously be taken as the most authentic, rightful

and correct means also with the wife, for her to rebut the

assertions made by the respondent husband, and to establish that

she had not been unfaithful, adulterous or disloyal. If the

appellant wife is right, she shall be proved to be so.

18. We would, however, while upholding the order passed by the

High Court, consider it just and appropriate to record a caveat,

giving the appellant wife liberty to comply with or disregard the

order passed by the High Court, requiring the holding of the

DNA test. In case, she accepts the direction issued by the High

Court, the DNA test will determine conclusively the veracity of

accusation levelled by the respondent husband against her. In

case, she declines to comply with the direction issued by the

High Court, the allegation would be determined by the court

concerned by drawing a presumption of the nature contemplated

in Section 114 of the Evidence Act, especially, in terms of

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MP-5428 of 2023

Illustration (h) thereof. Section 114 as also Illustration (h),

referred to above, are being extracted hereunder:

“114.Court may presume existence of certain facts.—The court

may presume the existence of any fact which it thinks likely to

have happened, regard being had to the common course of

natural events, human conduct and public and private business,

in their relation to the facts of the particular case.”

“Illustration (h)—that if a man refuses to answer a question

which he is not compelled to answer by law, the answer, if given,

would be unfavourable to him;”

This course has been adopted to preserve the right of individual

privacy to the extent possible. Of course, without sacrificing the

cause of justice. By adopting the above course, the issue of

infidelity alone would be determined, without expressly

disturbing the presumption contemplated under Section 112 of

the Evidence Act. Even though, as already stated above,

undoubtedly the issue of legitimacy would also be incidentally

involved.

(Emphasis supplied)

7. The counsel for the wife had heavily relied on judgment in the case

of Aparna Ajinkya Firodia (supra). The judgment of the case of

Dipanwita Roy (supra) has been considered in the case of Aparna Ajinkya

Firodia (Supra) and in Para-10 it has been held that the said judgment is in

view of the fact that it was a divorce petition on the ground of adultery of

the wife and the necessary facts had been pleaded so as to justify direction

to conduct a DNA Test. The Supreme Court in Aparna Ajinkya Firodia

(Supra) has held that inferences are to be drawn by the Court on

consideration of facts and circumstances of each individual case and

therefore the judgment in case of Dipanwita Roy (supra) is to be read in

the aforesaid context.

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MP-5428 of 2023

8. Subsequently, the Hon’ble Apex Court in Ivan Rathinam v. Milan

Joseph, 2025 SCC OnLine SC 175 has again considered the law on the

subject. The Hon’ble Supreme Court has laid great stress on ‘eminent need’

and ‘balancing the interests’. The Hon’ble Supreme Court considered that

in what manner the presumption under Section 112 of Evidence Act can be

rebutted. The Hon’ble Supreme Court held as under:-

28. The language of the provision makes it abundantly clear

that there exists a strong presumption that the husband is the

father of the child borne by his wife during the subsistence of

their marriage. This section provides that conclusive proof of

legitimacy is equivalent to paternity.

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The object of this

principle is to prevent any unwarranted enquiry into the

parentage of a child. 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.’

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.

31

Non-access means

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

marital relations with each other.

32

For a person to rebut the

presumption of legitimacy, they must first assert non-access

which, in turn, must be substantiated by evidence.

35. In the peculiar circumstances of this case, this Court must

undertake an exercise to ‘balance the interests’ of the parties

involved and decide whether there is an ‘eminent need’ for a

DNA test.

33

This pertains not simply to the interests of the child,

i.e. the Respondent, but also to the interests of the Appellant.

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

paternity, this Court balances the interests of those involved

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and must consider whether it is possible to reach the truth

without the use of such a test.

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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.

9. The Hon’ble Supreme Court went on to consider the judgment in the

case of Dipanwita Roy (supra) in Para- 50 and held that those proceedings

were not proceedings for legitimacy of the child but divorce petition on the

ground of adultery. The Hon’ble Apex Court held as under:-

“50. In Dipanwita Roy v. Ronobroto Roy (supra), this Court

directed the child therein to undergo a DNA test. However, this

direction was not given in furtherance of a declaration as to the

legitimacy of the child. On the contrary, the proceedings therein

were regarding a prayer for divorce based on adultery. The DNA

test was to be conducted to prove that the wife was adulterous

for the sake of obtaining a divorce. The appellant therein did not

desire to prove the illegitimacy of the child; it was merely

incidental. This Court explicitly stated that though the question

of legitimacy was incidentally involved, the issue of infidelity

alone would be determined by the DNA test, without expressly

disturbing the presumption under Section 112 of the Indian

Evidence Act, 1872.”

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10. The Hon’ble Supreme Court in the most recent case of R.

Rajendran v. Kamar Nisha, 2025 SCC OnLine SC 2372 has considered

the law on the subject and considered the judgment in the Dipanwita Roy

(supra) and also how in usual cases the matter is to be examined because

that particular case was the case of cheating by one of the parties to the

marriage. The Hon’ble Apex Court considered the judgment in the case of

Dipanwita Roy (supra) in the following manner :

41. In Dipanwita Roy (supra), this Court directed a DNA test to

be conducted on the child. However, the direction was not issued

for the purpose of determining the legitimacy of the child. The

proceedings were in the context of a petition for divorce on the

ground of adultery. The DNA test was sought to establish the

wife's infidelity in order to obtain a decree of divorce. The

appellant's objective was not to prove that the child was

illegitimate, that question arose only incidentally. This Court

expressly observed that while the issue of legitimacy was

incidentally involved, the DNA test would determine solely the

question of infidelity, and would not disturb the presumption

under Section 112 of the Evidence Act.

42. In sharp contrast, respondent No. 1 in the present case seeks

a direction for DNA testing precisely to dislodge the statutory

presumption of legitimacy that safeguards the child, and to

establish the appellant as the biological father so as to sustain

the criminal charges of cheating and harassment. The decision

in Dipanwita Roy (supra) is, therefore, inapplicable to the facts

of the present case.

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11. From a perusal of the aforesaid judgments, it is clear that in case

where necessary pleadings are there and no declaration is sought regarding

illegitimacy of the child and the issue only relates to adultery of the wife

then in appropriate cases, DNA test can be ordered, and if there are

sufficient pleadings of non-access.

12. In the present case, sufficient pleadings are there in the divorce

petition in Para-4 wherein the respondent husband has pleaded that he is in

Indian Army and was called in October, 2015 by the wife who is Constable

in MP Police. Within four days he was informed that by the wife that she is

pregnant and she has conceived a child which could not have been known

to the wife within four days of the husband returning from his duty in army.

It is further pleaded that the child was born within 8 months of October,

2015 and there is clear pleading of non-access at the time when the child

was conceived. The relevant pleadings in the divorce petition are as under:-

“4 यह he, prsnthies osas pbfूबर, 2015 y- आवेदक को

cgeA x lfu से अचानक यह कह कर जबलपुर बुलाया he

prsnthies को आवेदक eA बहुत याद आ aTu है, इसिलये

आवेदक अपने r(eau से NF )fu लेकर घर आ जाये। तब आवेदक

NF )fu लेकर जैसे Tu जबलपुर prsnthies के 8svBjH2 पुिलस

bnsटर थत घर पर आया। NF )fu से आने के चार hir के

भीतर Tu prsnthies osas आवेदक को यह बताया गया he

prsnthies आवेदक के d9Pt eA माँ बनाने वाली है। उस n5

आवेदक को hemrt hir4 y- heg3 yhT8s y- jEB ठहरता है, इन

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MP-5428 of 2023

सब dsm4 eA कोई 2sresau rTuH थी। इस बीच आवेदक अपनी

फौज eA r(eau y- जबलपुर से बाहर 0,Sftv रहा और इसके

बाद prsnthies ने hirsMe 26.06.2016 को 0Fq3 "xxxx" को

2Wy hi s, जो he prsnthies के साथ रहती है।

5. यह he 0Fq3 "xxxx" के 2Wy के बाद आवेदक osas यह

2sresau डॉ. से ली, he hemrt hir4 y- heg3 मhT8s y- jEB

ठहरता है, तो डॉ. ने आवेदक को Tu बताया he कोई भी मां

jEBnm3 होती है तो उसे cgeA 2sresau कम 20 से 30 hir बाद

Tu जाँच से हो सकती है, न he पित-प के िमलने / gHgjB के

ysq चार hir के भीतर और h:a जब prsnthies से आवेदक ने

0Fq3 xxxx के समय अrsnthies के jEBnm3 होने eA बात को

लेकर बात eA तो, prsnthies ने h:a से आवेदक से वाद-ववाद

कर अपने पुिलस कॉ टेबल होने eA धस दखाई और ये धमक

iu he आवेदक चुपचाप फ़ौज y- अपनी r,eau करे और

prsnthies को अपनी SnNHims व मनमज eA ’2Hij3 जीने दे

rTuH तो, आवेदक के िलये p9Ns rTuH होगा और ये धमक भी iu

he prsnthies आवेदक के िमल hv0sfBy-f y- आवेदक के

खलाफ झूठ रपोट करके उसे r(eau से बखा त करा देगी और

उसे जेल िभजवा देगी। इसके आलावा prsnthies osas आवेदक

के 2sresau के बना पहले भी jEB0sm कराया इन सब dsm4 व

ववाद से आवेदक व prsnthies के बीच जो वास था वो

बकु ल समा हो चुका है।”

13. Therefore, in the considered opinion of this Court, it is a fit case

where DNA test of the child should have been ordered by the Family Court

and the Family Court has not erred in ordering DNA test of the child. This

is the third divorce petition and the first divorce petition was scuttled by the

wife on the assertion that she intends to seek divorce by mutual consent.

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Then the application for mutual consent was filed in which the wife did not

appear for second motion and now this third divorce petition has been filed

which is also pending since the year 2021.

14. Consequently, the impugned order passed by the family Court is

upheld. The petition is dismissed. It is observed that in case the petitioner

still refuses to part with DNA samples, then the Family Court would be at

liberty to draw presumption under Section 114(h) of the Indian Evidence

Act or the corresponding provisions of BSA 2023 against the petitioner-

wife.

(VIVEK JAIN)

nks JUDGE