Case Note & Summary
The writ petition arose from a matrimonial dispute before the Family Court, Nagpur, in which the respondent-husband sought a DNA Profiling Test to determine the legitimacy of a child born to the petitioner-wife during the subsistence of their marriage. The petitioners were the wife and the minor child, who challenged the Family Court's order dated 17/02/2020 below Exh.51 in Petition No.A-457/2023, which allowed the husband's application for DNA Profiling Test. The marriage was solemnized on 18/12/2011. On 19/01/2013, when the wife left the matrimonial home, she was carrying a pregnancy of three months. The husband issued a notice on 28/01/2013 calling her back for cohabitation. He then filed a judicial separation petition on 08/02/2013, but later withdrew it and filed for divorce on grounds of adultery, cruelty, and desertion, numbered A-199/2014. The wife filed a petition for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955, numbered A-4457/2013. The child was born on 27/07/2013. The husband earlier filed an application for DNA test in R.C.C. No.912/2014 before the Judicial Magistrate First Class, Nagpur, which was rejected on 19/11/2016. When proceedings were at the stage of recording evidence, the husband filed Exh.51 seeking DNA Profiling Test, which the Family Court allowed. The main legal issue was whether the Family Court erred in directing a DNA test in the absence of a specific plea of non-access as required by Section 112 of the Indian Evidence Act, 1872, and whether the wife's statement during cross-examination that she would abide by the court's direction constituted consent. The petitioners contended that only exceptional cases justify DNA tests, the husband never pleaded non-access, and the notice indicated he knew of the pregnancy; therefore, no genuine issue warranted the test. They also argued that the wife's statement could not be construed as consent. The respondent-husband relied on Nandlal Wasudeo Badwaik, K. Sugandha Kumar, Rajesh Francis, and contended that Section 112 predated scientific advancements like DNA testing, and when such a full-proof method is available, the request should not be declined. He stated he was ready to deposit Rs.1,00,000/- as compensation if paternity confirmed him as father. The court examined Section 112 of the Indian Evidence Act, which provides that a child born during a valid marriage or within two hundred eighty days after its dissolution while the mother remains unmarried is conclusive proof of legitimacy, unless non-access is shown. The court noted the presumption casts a burden on the person questioning legitimacy to plead and prove non-access; mere denial is insufficient. It observed that the Supreme Court has held there is no straitjacket formula for DNA tests, which should be directed only if eminently needed after balancing interests. The court also referred to Aparna Ajinkya Firodia, which emphasized that Section 112 prevents unwarranted paternity enquiry and that access means existence of opportunities for sexual relationship. The available judgment excerpt does not record the final operative direction.
Headnote
A) Evidence Law - Legitimacy of Child - Conclusive Proof - Indian Evidence Act, 1872, Section 112 - Section 112 makes birth during valid marriage or within 280 days of dissolution while mother remains unmarried conclusive proof of legitimacy unless the party questioning it proves non-access at the time child could have been begotten. The court observed the presumption is based on public morality and public policy and can be rebutted only by strong, clear and conclusive evidence. Held that legitimacy cannot be challenged unless a specific plea of non-access is made out. (Paras 5-7) B) Evidence Law - DNA Profiling Test - Judicial Discretion - Indian Evidence Act, 1872, Section 112 read with Section 4 - There is no straitjacket formula for allowing or rejecting DNA test; it depends on facts of each case and must be directed only if eminently needed after balancing interests of both parties and the child. The court referred to Supreme Court decisions including Aparna Ajinkya Firodia which held that Section 112 prevents unwarranted paternity enquiry where parents had access. Held that DNA test cannot be ordered as a matter of course. (Paras 6-7) C) Family Law - Restitution of Conjugal Rights and Divorce - Access and Paternity - Hindu Marriage Act, 1955, Section 9 - The husband had not specifically pleaded non-access; his notice dated 28/01/2013 indicated knowledge of wife's pregnancy, and he did not deny physical relationship during relevant period. The wife's statement in cross-examination that she would abide by court direction for DNA test was argued not to constitute consent. The court considered whether Family Court erred in treating this as consent and in not requiring exceptional circumstances. (Paras 3-5)
Issue of Consideration
Whether the Family Court erred in allowing DNA Profiling Test to decide legitimacy of child without specific plea of non-access as required under Section 112 of Indian Evidence Act, 1872; whether wife's statement during cross-examination constituted consent; whether DNA test should be directed only in exceptional cases after balancing interests
Law Points
- Section 112 Indian Evidence Act
- 1872 creates conclusive proof of legitimacy unless non-access proved
- DNA profiling test cannot be ordered as matter of course
- no straitjacket formula
- test must be eminently needed
- courts must balance interests of parties and child
- access means existence of opportunities for sexual relationship
- presumption can be rebutted only by strong clear conclusive evidence
