Case Note & Summary
The case arises from a criminal application filed by Sahebrao Deorao Chavan (applicant No. 1) challenging an order dated 03/01/2019 passed by the Judicial Magistrate First Class (Court No. 11), Aurangabad, rejecting his application (Exh. 54) for a DNA test of his wife Kalpana (respondent No. 1) and their two children (respondent Nos. 2 and 3) in proceedings under the Protection of Women from Domestic Violence Act, 2005. The marriage between applicant No. 1 and respondent No. 1 was solemnized on 5.5.1992. The couple had marital discord and initially filed a divorce petition by mutual consent under Section 13B of the Hindu Marriage Act, 1955, but the wife withdrew her consent. Subsequently, the wife filed an application under Sections 18(a)(f), 19(f) and (8), and 20(b) and (d) of the DV Act claiming domestic violence and seeking maintenance for herself and the two children, who she asserted were born from the marriage. The husband appeared and denied paternity of the children, alleging that the wife had illicit relations with one Pravin Keni and that the children were born out of that adulterous relationship. He filed Exhibit 54 seeking a DNA test of the wife and children to prove his claim. The wife opposed the application, contending that the husband had admitted in other proceedings that the children were his. The Magistrate rejected the application, leading to the present challenge. The High Court framed the issue of whether a DNA test can be ordered in DV Act proceedings on the basis of mere allegations of adultery. The court analyzed the legal position, emphasizing that under Section 112 of the Indian Evidence Act, 1872, a child born during wedlock is conclusively presumed to be legitimate unless the husband proves non-access. The court noted that the husband did not plead or prove non-access; instead, he relied on vague allegations of adultery. The court also observed that the husband had admitted paternity in other proceedings, which weakened his case. The court held that a DNA test cannot be directed as a matter of routine; strong prima facie evidence is required to rebut the presumption of legitimacy. Since the husband failed to provide such evidence, the Magistrate's order rejecting the DNA test application was justified. The court dismissed the criminal application, upholding the Magistrate's order.
Headnote
A) Family Law - Paternity - DNA Test - Protection of Women from Domestic Violence Act, 2005 - Sections 18, 19, 20 - The husband sought DNA test of wife and children to prove children were born out of adultery. The court held that a DNA test cannot be ordered as a matter of course; strong prima facie evidence is required to rebut the presumption of legitimacy under Section 112 of the Indian Evidence Act, 1872. The husband's bare allegations of adultery were insufficient. (Paras 1-10) B) Evidence Act - Presumption of Legitimacy - Section 112 Indian Evidence Act, 1872 - The court reiterated that a child born during wedlock is conclusively presumed to be legitimate unless non-access is proved. The husband did not plead or prove non-access, and his own admissions in other proceedings supported paternity. (Paras 7-10) C) Domestic Violence - Maintenance - Protection of Women from Domestic Violence Act, 2005 - Sections 18, 19, 20 - The court held that in proceedings for maintenance under the DV Act, the issue of paternity is relevant only if the husband establishes strong grounds. The Magistrate rightly rejected the application for DNA test as it would delay proceedings and was not in the interest of justice. (Paras 6-10)
Issue of Consideration
Whether a husband can be directed to undergo a DNA test to determine paternity of children born during wedlock in proceedings under the Protection of Women from Domestic Violence Act, 2005, when he denies paternity on grounds of adultery.
Final Decision
The High Court dismissed the criminal application, upholding the order of the Judicial Magistrate First Class rejecting the application for DNA test. The court held that the husband failed to provide strong prima facie evidence to rebut the presumption of legitimacy under Section 112 of the Indian Evidence Act, 1872, and that a DNA test cannot be ordered as a matter of course.
Law Points
- DNA test
- paternity
- domestic violence
- Protection of Women from Domestic Violence Act
- 2005
- Section 112 Indian Evidence Act
- 1872
- legitimacy
- presumption of marriage
- bestiality
- adultery
