2025:CGHC:19067 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRR No. 520 of 2025 Devraj Toppo S/o Mahanguram Aged About 33 Years Caste - Uraon Occupation Constable Gd 710, R/o Village Dipadih Kudhur, Shankargarh, District Balrampur Ramanujganj, C.G. Current Address Camp Kudhur, District Kondagaon Chhattisgarh. ... Applicants versus 1 - Smt. Pratima Toppo W/o Devraj Toppo Aged About 28 Years Caste - Uraon, R/o D.C. Road Mahavir Ward No. 19 Ambikapur, District Surguja (C.G.), Current Address Village Dipadih, Khurd P.S. Shankargarh District Balrampur Ramanujganj Chhattisgarh. 2 - Ku. Bhumika Toppo D/o Devraj Toppo Aged About 6 Years Through The Natural Guradian Mother (Res. No. 1), R/o D.C. Road Mahavir Ward No. 19 Ambikapur, District Surguja (C.G.), Current Address Village Dipadih, Khurd P.S. Shankargarh District Balrampur Ramanujganj Chhattisgarh. ... Respondents (Cause title is taken from the CIS) ------------------------------------------------------------------------------------------------------------------ For Applicant : Shri Ashok Kumar Shukla, Advocate For Respondents : None appears ------------------------------------------------------------------------------------------------------------------ Hon'ble Shri Justice Ravindra Kumar Agrawal Order on Board 23.04.2025 1. The applicant has filed the instant Criminal Revision under Section 438 read with Section 442 of the Bhartiya Nagarik Suraksha Sanhita, 2023 (BNSS), against the order dated 25-02-2025 passed by the learned Family Court, Ambikapur, District Surguja (C.G.) in Miscellaneous Digitally signed by V PADMAVATHI Date: 2025.04.30 11:39:45 +0530 Crr 520 of 2025 2 Criminal Case No. 126 of 2023, whereby the learned family court has dismissed the application of the applicant/husband for DNA test of respondent No. 2. 2. The facts of the case in brief are that respondent No.1 is wife of the applicant. Their marriage was solemnized on 22-05-2017 as per their rights and rituals. After the marriage, respondent No. 1 started residing in her matrimonial house at village Deepadih Khurd. Out of their wedlock, respondent No. 2 was born on 31-05-2018. For about two years of their marriage, their relationship was normal, and both of them were living happily. After two years of their marriage, the applicant started avoiding the company of respondent No.1, and has completely neglected the respondents since 2020. He has gone to his place of posting and stopped coming to his native place where the respondents are residing, and is not paying any maintenance to them. Respondents completely became destitutes, and facing hardship for their livelihood. The respondents had also gone to Kondagaon, where the applicant is posted, but he refused to meet them. The applicant is employed at the Chhattisgarh Police service and earns about Rs. 60,000/- per month as his salary, whereas the respondent No. 1/wife has no source of income. 3. On 05-07-2023, the respondents have filed their application for grant of maintenance of Rs. 30,000/- per month from the applicant under Section 125 of Cr.P.C. before the learned Family Court, Surguja (place Ambikapur). The application of respondents and child was replied by the Crr 520 of 2025 3 applicant, and he denied his liability. In the reply, the applicant/husband denied that he is the father of respondent No. 2 and has submitted that respondent No.1 is having suspicious character and when he had gone to his duty at Kondagaon, she developed physical relation with his father (father-in-law of the respondent No. 1), and the child is born from him and not from the present applicant/husband. The relationship between the respondent No. 1 and her father-in-law is known to every person in the vicinity. Since respondent No. 1 is residing with her father-in-law as his wife, the applicant/husband is not liable to pay any maintenance to them. 4. The learned family court framed issues and proceeded for recording evidence of the parties. On 20-09-2024, the respondent No. 1/wife and her witness Shivlal (A.W. 2) were examined and their evidence was recorded. On 08-01-2025, the applicant/husband has been examined and his evidence has been recorded. 5. On 20-01-2025, applicant/husband has filed an application for conducting the DNA test of the respondents. He averred in his application that respondent No. 1 is having an illicit relationship with her father-in- law, and respondent No. 2 has born from her father-in-law and not from him; he is HIV-positive patient and, therefore, an order for DNA test may be passed. The learned family court, after hearing the parties, passed the order on 25-02-2025 and dismissed the application by holding that routinely, the DNA test cannot be ordered, and it can be ordered only in exceptional cases. It is also for consideration of the learned family court Crr 520 of 2025 4 that the DNA of the applicant, and his father would be the same. Therefore, even if, it is ordered for DNA test of applicant’s father, the report would be the same with respect to either the applicant or his father. The said order dated 25-02-2025 is under challenge in the present petition. 6. Learned counsel for the applicant would submit that the applicant denied the paternity of the child/respondent No. 2, that he was born from the father-in-law of his mother. Respondent No.1 is having an illicit relationship with her father-in-law, and is residing with him. The applicant/husband had gone to his place of posting after 2 days of his marriage and thereafter, respondent No.1 developed relationship with her father-in-law, and gave birth to respondent No. 2. The applicant/husband was not having access to presume the legitimacy of respondent No. 2 as provided under Section 112 of the Indian Evidence Act, 1872. The applicant/husband specifically denied the paternity of the child. DNA test is the accurate scientific method to determine paternity of the child in the present era, and there would be no prejudice to anyone, if such an order is passed for DNA test to do complete justice in the case. 7. Learned counsel for the applicant would rely upon the judgment passed by Hon’ble Supreme Court in case of Nandlal Vasudeo Badwaik v. Lata Nandlal Badwaik and Another, 2014 (2) SCC 576, and submits that the revision may be allowed and the parties may be directed to conduct the DNA test. Crr 520 of 2025 5 8. I have heard learned counsel for the applicant and perused the documents annexed with the petition. 9. In the matter of Bhabani Prasad Jena v. Orissa State Commission for Women, 2010 (8) SCC 633, the Hon’ble Supreme Court has emphasized that a direction to use DNA test to determine the paternity of a child is an extremely delicate and sensitive matter. Therefore, such test may be directed to be conducted only when the same is eminently needed. DNA test in a matter relating to the paternity of a child should not be directed by the court as a matter of course, or in a routine manner, whenever such a request is made. 10. Recently, the Hon’ble Apex Court, while dealing with the issue of necessity for DNA test in a matrimonial dispute in case of Aparna Ajinkya Firodia v. Ajinkya Arun Firodia, 2024 (7) SCC 773, has framed the issue for consideration in para 15.1 of its judgment, which is reproduced hereunder for ready reference: “15.1 (I) Whether, the family court Pune and the High Court of Judicature at Bombay, have rightly appreciated Section 112 of the Evidence Act in directing that a DNA test of Master Arjun be conducted ?” 11. While dealing with the case of Aparna Ajinkya (supra), the Hon’ble Supreme Court has considered the scope of Section 112 of the Evidence Act, 1872, ‘access’ and ‘non-access’, and also the proof of legitimacy of Crr 520 of 2025 6 the child during subsistence of marriage. In para 18 to 25, of the judgment, the Hon’ble Supreme Court has held that:- “18. The principle underlying Section 112 is to prevent an unwarranted enquiry as to the paternity of the child whose parents, at the relevant time had “access” to each other. In other words, once a marriage is held to be valid, there is a strong presumption as to the children born from that wedlock as being legitimate. This presumption can be rebutted only by strong, clear and conclusive evidence to the contrary. Section 112 of the Evidence Act is based on the presumption of public morality and public policy vide Sham Lal vs. Sanjeev Kumar, (2009) 12 SCC 454. Since Section 112 creates a presumption of legitimacy that a child born during the subsistence of a marriage is deemed to be legitimate, a burden is cast on the person who questions the legitimacy of the child. 19. Further, “access” or “non-access” does not mean actual co- habitation but means the “existence” or “non-existence” of opportunities for sexual relationship. Section 112 refers to point of time of birth as the crucial aspect and not to the time of conception. The time of conception is relevant only to see whether the husband had or did not have access to the wife. Thus, birth during the continuance of marriage is “conclusive proof” of legitimacy unless “non-access” of the party who questions the paternity of the child at the time the child could have been begotten is proved by the said party. 20. It is necessary in this context to note what is “conclusive proof” with reference to the proof of the legitimacy of the child, as stated in Section 112 of the Evidence Act. As to the meaning of “conclusive proof” reference may be made to Section 4 of the Evidence Act, which provides that when one fact is declared to be conclusive proof of another, proof of one fact, would automatically render the other fact as proved, unless contra Crr 520 of 2025 7 evidence is led for the purpose of disproving the fact so proved. A conjoint reading of Section 112 of the Evidence Act, with the definition of “conclusive proof” under Section 4 thereof, makes it amply clear that a child proved to be born during a valid marriage should be deemed to be a legitimate child except where it is shown that the parties to the marriage had no access to each other at any time when the child could have been begotten or within 280 days after the dissolution of the marriage and the mother remains unmarried, that fact is the conclusive proof that the child is the legitimate son of the man. Operation of the conclusive presumption can be avoided by proving non-access at the relevant time. 21. The latter part of Section 112 of the Evidence Act indicates that if a person is able to establish that the parties to the marriage had no access to each other at any time when the child could have been begotten, the legitimacy of such child can be denied. That is, it must be proved by strong and cogent evidence that access between them was impossible on account of serious illness or impotency or that there was no chance of sexual relationship between the parties during the period when the child must have been begotten. Thus, unless the absence of access is established, the presumption of legitimacy cannot be displaced. 22. Thus, where the husband and wife have co-habited together, and no impotency is proved, the child born from their wedlock is conclusively presumed to be legitimate, even if the wife is shown to have been, at the same time, guilty of infidelity. The fact that a woman is living in adultery would not by itself be sufficient to repel the conclusive presumption in favour of the legitimacy of a child. Therefore, shreds of evidence to the effect that the husband did not have intercourse with the wife at the period of conception, can only point to the illegitimacy of a child born in wedlock, but it would not uproot the presumption of legitimacy under Section 112. Crr 520 of 2025 8 23. The presumption under Section 112 can be drawn only if the child is born during the continuance of a valid marriage and not otherwise. “Access” or “non-access” must be in the context of sexual intercourse that is, in the sexual sense and therefore, in that narrow sense. Access may for instance, be impossible not only when the husband is away during the period when the child could have been begotten or owing to impotency or incompetency due to various reasons or the passage of time since the death of the husband. Thus, even though the husband may be cohabiting, there may be non-access between the husband and the wife. One of the instances of non-access despite co-habitation is the impotency of the husband. If the husband has had access, adultery on the wife's part will not justify a finding of illegitimacy. 24. Thus, “non-access” has to be proved as a fact in issue and the same could be established by direct and circumstantial evidence of an unambiguous character. Thus, there could be “non-access” between the husband and wife despite co-habitation. Conversely, even in the absence of actual co-habitation, there could be access. 25. Sect ion 112 was enacted at a time when modern scientific tests such as DNA tests, as well as Ribonucleic acid tests (‘RNA’, for short), were not in contemplation of the legislature. However, even the result of a genuine DNA test cannot escape from the conclusiveness of the presumption under Section 112 of the Evidence Act. If a husband and wife were living together during the time of conception but the DNA test reveals that the child was not born to the husband, the conclusiveness in law would remain irrebuttable. What would be proved, is adultery on the part of the wife, however, the legitimacy of the child would still be conclusive in law. In other words, the conclusive presumption of paternity of a child born during the subsistence of a valid marriage is that the child is that of the husband Crr 520 of 2025 9 and it cannot be rebutted by a mere DNA test report. What is necessary to rebut is the proof of non-access at the time when the child could have been begotten, that is, at the time of its conception vide Kamti Devi vs. Poshi Ram, (2001) 5 SCC 311.” 12. Answering the aforesaid issue, the Hon’ble Supreme Court has concluded in para 43 of its judgment that: “Having regard to the aforesaid discussion, the following principles could be culled out as to the circumstances under which a DNA test of a minor child may be directed to be conducted: i. That a DNA test of a minor child is not to be ordered routinely, in matrimonial disputes. Proof by way of DNA profiling is to be directed in matrimonial disputes involving allegations of infidelity, only in matters where there is no other mode of proving such assertions. ii. DNA tests of children born during the subsistence of a valid marriage may be directed, only when there is sufficient prima-facie material to dislodge the presumption under Section 112 of the Evidence Act. Further, if no plea has been raised as to non-access, in order to rebut the presumption under Section 112 of the Evidence Act, a DNA test may not be directed. iii. A Court would not be justified in mechanically directing a DNA test of a child, in a case where the paternity of a child is not directly in issue, but is merely collateral to the proceeding. iv. Merely because either of the parties have disputed a factum of paternity, it does not mean that the Court should direct DNA test or such other test to resolve the controversy. The parties should be directed to lead evidence to prove or disprove the factum of paternity and only if the Crr 520 of 2025 10 Court finds it impossible to draw an inference based on such evidence, or the controversy in issue cannot be resolved without DNA test, it may direct DNA test and not otherwise. In other words, only in exceptional and deserving cases, where such a test becomes indispensable to resolve the controversy the Court can direct such test. v. While directing DNA tests as a means to prove adultery, the Court is to be mindful of the consequences thereof on the children born out of adultery, including inheritance-related consequences, social stigma, etc.” 13. Further in para 102, the Hon’ble Supreme Court has held that:- “Whose rights, are to tilt the balance in the scales of justice? 102. As rightly contended by Shri Huzefa Ahmadi, learned senior counsel for the appellant, the question as to whether a DNA test should be permitted on the child, is to be analysed through the prism of the child and not through the prism of the parents. The child cannot be used as a pawn to show that the mother of the child was living in adultery. It is always open to the respondent- husband to prove by other evidence, the adulterous conduct of the wife, but the child’s right to identity should not be allowed to be sacrificed.” 14. Reverting to the facts of the present case, the respondents have filed the application for grant of maintenance amount, saying that they are destitutes, and neglected by the applicant/husband, who is not providing any amount to them for their maintenance. The applicant denied the paternity of the child, and averred that she was born from his father (father-in-law of respondent No. 1/wife) as she developed physical relation with him, and resided in his house as his wife, and the Crr 520 of 2025 11 child/respondent No. 2 was born from them. The applicant/husband has got himself examined before the learned family court on 08-01-2025. He admitted in his evidence that he has been in service since 2014. He has not made any complaint to anyone that he performed the marriage with respondent No. 1 under pressure. Although from para 17 of his cross- examination, he denied that he performed 2nd marriage with any other lady, but he subsequently admitted that in the document Ex. D-1, the name of that lady is mentioned as the “Caretaker”. 15. The applicant/husband virtually denied access to his wife/respondent and submitted that after two days of his marriage, he left his house and went back to his duty and has never returned to his house thereafter. He stated in his deposition that respondent No. 1 has developed an illicit relationship with his father and is residing with him as his wife. The child/ respondent No. 2 was born from his father and not from him. Another aspect of the matter is that the father-in-law of the respondent No. 1 is not the party to the proceeding, and he cannot be directed to undergo DNA test. 16. Merely because either party disputed the paternity of the child, it does not mean that the DNA test should be conducted to resolve the dispute between the parties. The parties may lead other evidence to prove the factum of paternity and ‘access’ or ‘non-access’ and it is only when the court finds it impossible to draw an inference based on such evidence that the controversy cannot be resolved with DNA test, it may Crr 520 of 2025 12 direct for the same, and such order should not be passed mechanically. As has been held by Hon’ble Supreme Court that in order to rebut the presumption under Section 112 of the Evidence Act, a DNA test may not be directed. 17. The judgment of Nandlal Wasudeo Badwaik case (supra) cited by the learned counsel for the applicant has already been considered by the Hon’ble Supreme Court in the matter of Aparna Ajinkya case (supra), and therefore, no benefit can be extended to the applicant on the basis of that judgment cited by him. 18. For the foregoing consideration, this court does not find any sufficient ground to allow the petition and to grant relief to the applicant. Accordingly, the Criminal Revision filed by the applicant is dismissed. 19. However, this shall not preclude the applicant/husband to prove his defence by leading other evidence and to establish the allegation made by him in the case. Sd/- (Ravindra Kumar Agrawal) JUDGE padma