1 2026:CGHC:25464 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WP227 No. 687 of 2026 1 - Kishun S/o Dhansai Aged About 65 Years R/o Village- Kewra Tahsil- Bhaiyathan District- Surajpur (C.G.) (Plaintiff). ... Petitioner(s) Versus 1 - Sanjay Kumar S/o Heeralal Aged About 40 Years R/o Village- Kewra Tahsil- Bhaiyathan District- Surajpur (C.G.) (Defendant No 1) 2 - Maheshia W/o Heeralal Aged About 60 Years R/o Village- Kewra Tahsil- Bhaiyathan District- Surajpur (C.G.) (Defendant No.2) ... Respondent(s) (Cause-title taken from Case Information System) For Petitioner : Shri Pushkar Sinha, Advocate. Hon’ble Shri Justice Ravindra Kumar Agrawal, J Order on Board 22.06. 202 6 1. The present writ petition under Article 227 of the Constitution of India has been filed by the petitioner against the impugned order dated 19.03.2026 passed by IInd District Judge, Surajpur, in Civil Suit No.2- A/2023 whereby the application filed by the petitioner under Order 26 Rule 10A read with Section 151 of CPC for conducting DNA test of defendant No.1 has been rejected. INDRAJEET SAHU Digitally signed by INDRAJEET SAHU Date: 2026.06.29 14:32:52 +0530 2 2. Learned counsel for the petitioner would submit that the petitioner is the plaintiff before the trial court. He filed a suit before the trial court for declaration that defendant No.1 is not his biological son, and also for permanent injunction from interference in the possession of the property of the plaintiff. He would submit that in the plaint, the plaintiff has pleaded that he is the son of late Dhansai. His first wife was Shakunti and since Shakunti was issuless, he performed second marriage with Sarita from whom his daughter Gita borne. The defendant No.1 is claiming to be biological son of plaintiff from Maheshia who was alleged to be concubine of the brother of plaintiff namely Puran. The plaintiff have no relation at any point of time with Maheshia, but by claiming that defendant No.1 is the son of plaintiff and Maheshia, they are interfering with the property of plaintiff. In the other revenue documents, the name of Maheshia was recorded to be the wife of late Puran and thus she was not concubine, but was the wife of Puran. In the year 2022 when the plaintiff approached before the revenue authorities for mutation of the name of his daughter, the defendant No.1 raised an objection that he is the son of plaintiff and thereafter the plaintiff filed the suit after collecting relevant documents. 3. He would further submit that since the serious question of paternity of defendant No.1 is raised by the plaintiff, the defendant No.1 may be directed to conduct DNA test to prove the paternity as to whether he is the biological son of plaintiff or not, for which, he filed an application before the trial court on 18.11.2025 but the same has been rejected holding that it may cause stigma upon the parties concerned. It was also held that except from eminent need to conduct DNA test, it cannot 3 be allowed in routine. The trial court further observed that presumption of legitimacy should be given priority and DNA test cannot be ordered only on apprehension. The counsel for the petitioner would further submit that when defendant No.1 is claiming to be the biological son of plaintiff and plaintiff denied the same, there is no other way to prove the paternity of defendant No.1 except DNA test. The issue involved eminent need to conduct such a DNA test to adjudicate the issue finally. Therefore, the impugned order may be set aside and the application for DNA test of defendant No.1 filed by the plaintiff may be allowed. 4. I have heard the counsel for the petitioner and perused the material annexed with the petition. 5. The claim of the petitioner in the present writ petition is for a direction to conduct DNA test of defendant No.1. The claim of defendant No.1 is that he is the son of plaintiff. From reply of the application filed by the defendant No.1 it transpires that the defendant No.1 is claiming that the plaintiff, only to deprive the defendant No.1 from his property, denied his paternity. The other documents like school records as also on other government records viz Bank Passbook, Voter ID Card and in Social Status Certificate the name of plaintiff is shown to be the father of defendant No.1 and the DNA test could be ordered only in absence of any other evidence and also in eminent need. 6. Section 116 of Bhartiya Sakshya Adhiniyam, 2023 (in short, the Adhiniyam, 2023) (Section 112 of The Indian Evidence Act, 1872) requires the parties disputing the parentage to prove non-access in order to dispel the presumption of the fact under Section 115 of The 4 Adhiniyam, 2023. There is a presumption of legitimacy of a child that he/she was borne during the continuance of a valid marriage between their parents or within 200 and 80 days after its dissolution unless it can be shown that parties to the marriage had no access to each other at any time when he could have been begotten. The presumption of legitimacy is this, that a child born of a married woman is deemed to be legitimate, it throws on the person who is interested in making out the illegitimacy, the whole burden of proving it. It is a rebuttable presumption of law that a child born during lawful wedlock is legitimate, and that access occurred between the parents. The presumption can only be displaced by a strong preponderance of evidence and not by a mere balance of probability. 7. In case of Ashok Kumar Vs. Raj Gupta and Others, 2022 (1) SCC 20, the Hon’ble Supreme Court has observed that DNA test is not to be directed as a matter of routine, but only in deserving cases. In paragraph 8 to 11 it has been held as under: “8. This court in Banarsi Dass V. Teeku Dutta had declared that DNA test is not to be directed as a matter of routine but only in deserving cases. A petition was filed in that case for grant of succession certificate in respect of properties of the deceased. The Plaintiff claimed to be the deceased’s daughter and the only Class 1 legal heir, under the Hindu Succession Act, 1956. The deceased had died intestate, leaving behind 5 brothers. The Delhi High Court denied one of the brother’s applications for conducting the DNA test of the daughter to establish her paternity. Justice Arijit Pasayat upheld the decision of the High Court in the following passage of the judgment: - “10. In matters of this kind the court must have regard to Section 112 of the Evidence Act. This section is based on the well- known maxim pater is est quem nuptiae demonstrant (he is the father whom the marriage indicates). The presumption of legitimacy is this, that a child born of a married woman is deemed to be legitimate, it throws on the person who is interested in making out the illegitimacy, the whole burden of proving it. The law presumes both that a marriage ceremony is valid, and that every person is legitimate. Marriage or filiation (parentage) may be presumed, the law in general presuming against vice and immorality.” 5 9. In Bhabani Prasad Jena vs. Convenor Secretary, Orissa State Commission for Women &Anr.2, Justice R.M. Lodha, while reconciling two earlier decisions of this Court on the point, had rightfully prescribed that; “23. There is no conflict in the two decisions of this Court, namely, Goutam Kundu [(1993) 3 SCC 418 : 1993 SCC (Cri) 928] and Sharda [(2003) 4 SCC 493] . In Goutam Kundu [(1993) 3 SCC 418 : 1993 SCC (Cri) 928] it has been laid down that courts in India cannot order blood test as a matter of course and such prayers cannot be granted to have roving inquiry; there must be strong prima facie case and the court must carefully examine as to what would be the consequence of ordering the blood test. In Sharda [(2003) 4 SCC 493] while concluding that a matrimonial court has power to order a person to undergo a medical test, it was reiterated that the court should exercise such a power if the applicant has a strong prima facie case and there is sufficient material before the court. Obviously, therefore, any order for DNA test can be given by the court only if a strong prima facie case is made out for such a course.” The learned Judge while noting the sensitivities involved with the issue of ordering a DNA test, opined that the discretion of the court must be exercised after balancing the interests of the parties and whether a DNA Test is needed for a just decision in the matter and such a direction satisfies the test of “eminent need”. 10. The above decision in Bhabani Prasad Jena (supra) was considered and approved in Dipanwita Roy vs. Ronobroto Roy, where the Court noticed from the facts that the husband alleged infidelity against his wife and questioned the fatherhood of the child born to his wife. In those circumstances, when the wife had denied the charge of infidelity, the Court opined that but for the DNA test, it would be impossible for the husband to establish the assertion made in the pleadings. In these facts, the decision of the High Court to order for DNA testing was approved by the Supreme Court. Even then, Justice J.S. Khehar, writing for the Division Bench, considered it appropriate to record a caveat to the effect that the wife may refuse to comply with the High Court direction for the DNA test but in that case, presumption may be drawn against the party. 11. In circumstances where other evidence is available to prove or dispute the relationship, the court should ordinarily refrain from ordering blood tests. This is because such tests impinge upon the right of privacy of an individual and could also have major societal repercussions. Indian law leans towards legitimacy and frowns upon bastardy. The presumption in law of legitimacy of a child cannot be lightly repelled.” 8. The trial court after considering the judgments passed by Supreme Court in case of Goutam Kundu Vs. State of West Bengal, 1993(3)SCC418, Banarsi Dass Vs. Teeku Dutta (Mrs.) and Another, 2005(4) SCC 449 and also the case of Ashok Kumar Gupta Vs. Raj Gupta, 2021(12)SCC1, rejected the application of the plaintiff after 6 considering the facts and circumstances of the case as well as the law laid down by the Supreme Court in the aforesaid judgments. 9. It is well settled that an order directing DNA examination is not to be passed as a matter of course, and such power is required to be exercised sparingly, only in cases of eminent need and when the Court concludes that no other mode of proof is available for effectively adjudicating the controversy. The burden of establishing the facts pleaded in the plaint and rebutting the claim of defendant No. 1 regarding his status and entitlement initially lies upon the petitioner/plaintiff. Admittedly, the parties have not yet led their evidence before the Trial Court. The petitioner, therefore, has an opportunity to prove his case by leading oral and documentary evidence, including such material as may be available regarding his status, the relationship between the parties, and the circumstances surrounding the claim of defendant No. 1. Unless such evidence is first brought on record and evaluated, it cannot be concluded that a scientific test is required for adjudication of the dispute. 10. Therefore, before resorting to such an intrusive procedure affecting the privacy and dignity of an individual, the Court must be satisfied that a strong prima facie case has been established and that the truth cannot be effectively discovered through ordinary rules of evidence. Since the petitioner has not yet exhausted the normal modes of proof available under law, this Court is of the considered opinion that the request for DNA test is premature. However, it is clarified that if, after the parties have adduced their evidence, the Trial Court finds that the controversy relating to the parentage of defendant No.1 cannot be satisfactorily 7 resolved on the basis of the evidence on record and that a scientific examination has become necessary for just decision of the case, it shall remain open to the petitioner to seek such relief at the appropriate stage, to be considered strictly in accordance with law and the principles laid down by the Hon'ble Supreme Court. 11. Accordingly, with the aforesaid observations, the present writ petition is dismissed at this stage. However, the petitioner is at liberty to avail the remedy at an appropriate stage, if occasion so arises. Sd/- (Ravindra Kumar Agrawal) Judge inder