1 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WP227 No. 391 of 2022 1 - Ramprasad Jagat S/o Thagguram Jagat, Aged About 40 Years R/o Village Saketi, Post Sagar, Police Station Hirri Mines, Tahsil Takhatpur, District : Bilaspur, Chhattisgarh ... Petitioner(s) versus 1 - Smt. Anita W/o Ramprasad Jagat, D/o Rupsingh Shyam, Aged About 32 Years R/o Village Navagaon (Mohda), Police Station Ratanpur, Tahsil Kota, District : Bilaspur, Chhattisgarh ---- Respondent(s) For Petitioner : Mr. Prashant Pathak, Advocate For Respondent : Mr. Akash Shrivastava, Advocate Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board 25.08.2025 1. The petitioner has filed this petition against the order dated 11.05.2022 passed by the learned Principal, Family Judge, Bilaspur (C.G.), whereby an application moved by the petitioner seeking direction to conduct a DNA test has been rejected. 2. Learned counsel appearing for the petitioner would submit that the petitioner and respondent were married off on 16.05.2011. He would further submit that the respondent gave birth to a child on 14.11.2011, -2- six months after the marriage. He would contend that a petition was filed by the petitioner for dissolution of marriage on the ground of adultery, which is still pending consideration before the learned Family Court. He would contend that an application to conduct DNA test was moved and the same has been rejected. He would further contend that there is a prima facie case in favour of the petitioner as the child was born before the expiry of 280 days as provided under the provisions of Section 112 of the Evidence Act. He would also contend that the learned Family Court ought to have allowed the application. 3. On the other hand, learned counsel appearing for the respondent would oppose the submissions made by learned counsel appearing for the petitioner. He would submit that the petitioner may prove the allegations made against the respondent with regard to adultery by leading evidence. He would contend that the petition deserves to be dismissed. 4. I have heard the learned counsel appearing for the petitioner and perused the documents placed on the record. 5. Section 112 of the Indian Evidence Act reads as under:- “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 3 when he could have been begotten.” A bare reading of the above-quoted provision would make it clear that the factum of the birth of the child during the continuance of a valid marriage can be proved by leading evidence to the effect that such a child was born within 280 days. 6. 6. The Hon’ble Supreme Court in the matter of Ivan Rathinam Versus Milan Joseph, reported in 2025 LiveLaw SC 118, held that the order to conduct a DNA test cannot be passed in a routine manner. 7. Further, in paras 46 and 47 of Ivan Rathinam (supra), it is held that while dealing with the issue of DNA testing, the Court should balance the interests of both parties and must consider whether it is possible to reach a conclusion without such a test. It is also held that if evidence can be led to prove legitimacy, there is no need to pass an order for a DNA test, but once insufficiency is apparent, the Court must consider the interest of the party and must inform whether it is necessary to pass such an order. The relevant Paragraphs 46 & 47 are reproduced herein-below:- "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 -4- 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.” 8. In the present case, as alleged by the petitioner, the marriage was solemnized on 16.05.2011 and the child was born on 14.11.2011, therefore, the petitioner may prove this fact taking shelter to the provisions of Section 112 of the Evidence Act by leading evidence and thus, I do not find any good ground to interfere with the order passed by the learned Family Court. 9. Accordingly, this petition fails and is hereby dismissed. No cost(s). Sd/- (Rakesh Mohan Pandey) Judge Rekha