Tejsingh vs Rahul Singh

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IN THE HIGH COURT OF MADHYA PRADESH

AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
th
ON THE 8 OF APRIL, 2026
MISC. PETITION No. 2746 of 2025
TEJSINGH AND OTHERS
Versus
RAHUL SINGH AND OTHERS
Appearance:
Shri Ankit Saxena - Advocate for the petitioner.
Shri Vijay Shukla - Advocate for the respondents No.1 to 4.
Shri D.P. Sharma - P.L. for the State.
ORDER
The present petition has been filed challenging the order dated
14.02.2025 passed by the trial Court, whereby the trial Court has rejected
application of the petitioners-plaintiffs under Section 151 C.P.C. for
conducting DNA test of defendant No.1-Rahul on the allegation that the
defendant No.2, who is the mother of Rahul possibly last cohabited with her
husband namely Sajan Singh upto 12.07.1994 on which date she executed
a Farkatinama (relinquishment deed), whereas the defendant No.1 has been
born on 06.07.1995, which is after 12 months of execution of Farkatinama
and therefore, prima facie, the defendant No.1 does not appear to be son of
defendant No.2 from Sajan Singh and this can only be clarified by
conducting DNA test of defendant No.1-Rahul Singh.
2. Counsel for the petitioner has vehemently argued that the trial Court
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JYOTISHI
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has erred in rejecting the application for conducting DNA tests and

conducting DNA tests would have been the only way to establish the
paternity and legitimacy of defendant No.1 Rahul Singh. It is argued that a
Farkatinama (relinquishment deed) was executed by defendant No.2 in the
year 1994 mentioning that she is 30 years of age and she got married about
18 years ago with Sajan Singh and she started cohabiting with Sajan Singh
about 10 years ago, but since last eight years, there has been no cohabitation
and in future, she will not claim any maintenance for herself or her children.
On the strength of the aforesaid Farkatinama, it is stated that there was no
cohabitation between defendant No.2 and deceased Sajan Singh at least from
the date of execution of this Farkatinama on 12.07.1994 and therefore, the
defendant No.1 is a illegitimate child of defendant No.2, who is not born out
of her wedlock with Sajan Singh.
3. Per contra, it is argued by the learned counsel for the defendant that
such an application for DNA test to verify the paternity or the legitimacy of a
child cannot be carried out as it is contrary to the law settled by the Hon'ble
Supreme Court. It is further contended that the application under Section 151
seeking DNA test does not inspire and confidence, and it is a slip-shod
application, because though in the plaint, the legitimacy and paternity of
defendants No.3 & 4, who are the daughters of defendant No.2 from Sajan
Singh is admitted, but in the application seeking DNA test even the paternity
of defendants No.3 & 4 has been disputed. Therefore, it is clear that the
averments made in the application seeking DNA test are made just for the
sake of it and have not been made in responsible manner so as to inspire any
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confidence in the said pleadings made in the application under Section 151

CPC.
4. This Court has heard learned counsel for the rival parties at length
and perused the record.
5. By a separate order passed today in M.P. No.755 of 2026, this Court
has already held that the questioned Farkatinama (relinquishment deed) is not
a divorce deed, because divorce taking place by a deed is not contemplated
in Hindu law and it can be said to be a relinquishment deed, but it is neither
stamped nor registered as per law and therefore, it is inadmissible in
evidence for any purpose. Therefore, nothing contained in the said
Farkatinama (relinquishment deed) can be pressed into service to order DNA
test in the present case.
6. Even otherwise, even if the questioned Farkatinama
(relinquishment deed) had to be read in evidence, then also the pleadings in
the plaint clearly admit in paragraph 1 of the plaint itself that the deceased
Sajan Singh had got married with defendant No. 2 prior to he entering into
second marriage. It is only contended that divorce with defendant No.2 took
place by executing a document and otherwise there is no divorce decree with
the defendant No.2. It implies that in absence of a divorce decree with the
defendant No.2, that there was no valid divorce between defendant No.2 and
deceased Sajan Singh and the child born during existence of wedlock of
Sajan Singh with the defendant No.2 would be born with presumption of
legitimacy in terms of Section 112 of Indian Evidence Act. The only mode
of demolishing that presumption is non-access between husband and wife at
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the time of conception, which is estimated to be 280 days prior to the date of

birth.
7. Therefore, what is required to be proved, when there was valid
subsistence of marriage between defendant No.2 and deceased Sajan Singh
till the death of Sajan Singh, is that defendant No.2 and Sajan Singh had no
access to each other. Mere inability of access is not to be proved, but
impossibility of access has to be proved and that too, within 280 days of the
date of birth of defendant No.1. Therefore, various facts need to be proved
by evidence before the trial Court, which are the date of birth of defendant
No.1 and the question of impossibility of access between defendant No.2 and
deceased Sajan Singh on the approximate date, i.e. 280 days prior to date of
birth of defendant No.1.
8. It is settled in law that to adjudge legitimacy/illegitimacy, DNA test
cannot be ordered and a child is born with presumption as per Section 112 of
Indian Evidence Act.
9. 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
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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.”
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
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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 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
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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 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.
10. The issue was subsequently considered in judgment in the case of
Aparna Ajinkya Firodia (2024 (7) SCC 773). 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
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therefore the judgment in case of Dipanwita Roy (supra) is to be read in the

aforesaid context.
11. 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. 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.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 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.
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. This pertains not simply to the interests of the child,
i.e. the Respondent, but also to the interests of the Appellant.
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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.
12. 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 .”
13. The Hon’ble Supreme Court in the very 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
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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.
14. 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.
15. Therefore, this Court does not find any error of law or jurisdiction
in the impugned order passed by the trial Court in refusing the order DNA
test, which is being sought only to adjudge the paternity and legitimacy of
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defendant No.1.

16. Consequently, the petition is dismissed, leaving it open for the
petitioners to rebut the presumption under Section 112 of Indian Evidence
Act by leading appropriate evidence before the trial Court.
(VIVEK JAIN)
JUDGE
rj

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