- 1 - HC-KAR NC: 2026:KHC:509 CRL.P No. 14726 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF JANUARY, 2026 BEFORE THE HON'BLE MR. JUSTICE M.NAGAPRASANNA CRIMINAL PETITION NO. 14726 OF 2025 BETWEEN: SRI. KARIYAPPA S/O LATE CHANNAPPA, AGED ABOUT 46 YEARS, R/O CHIKKENAHALLI, ALAGATTA POST, BARAMA SAGARA HOBLI, CHITHRADURGA DISTRICT - 577 526. …PETITIONER (BY SRI. RAKSHITH KUMAR, ADVOCATE) AND: 1. SMT. SUREKA AGED ABOUT 40 YEARS, TAILORING WORK, R/O BAZAR LANE JOG, JOG AT POST, JOG-SAGAR-TALUK - 577 435. 2. KUMARI. YASHASWI Digitally signed by NAGAVENI Location: High Court of Karnataka - 2 - HC-KAR NC: 2026:KHC:509 CRL.P No. 14726 of 2025 D/O. SMT. SUREKA AGED ABOUT 13 YEARS, 3. MASTER TEJAS S/O SMT. SUREKA AGED ABOUT 12 YEARS RESPONDENTS NO.2 AND 3 ARE MINORS ARE REPRESENTED BY THEIR MOTHER RESPONDENT NO.1 …RESPONDENTS THIS CRL.P IS FILED U/S 482 OF CR.PC (FILED U/S 528 BNSS) PRAYING TO QUASH THE IMPUGNED ORDER DATED 22.02.2025 PASSED BY THE HONBLE V ADDL. DISTRICT AND SESSIONS JUDGE, SHIVAMOGGA IN CRIMINAL REVISION PETITIONER NO.10041/2024 FOR CONFIRMING THE IMPUGNED ORDER DATED 18.05.2024 PASSED BY THE PRL. SENIOR CIVIL JUDGE AND JMFC, SAGAR IN CRL.MISC.NO.26/2018 ON I.A. FILED U/S. 151 OF CPC AS PER DOCUMENT NO.1. THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: - 3 - HC-KAR NC: 2026:KHC:509 CRL.P No. 14726 of 2025 CORAM: HON'BLE MR. JUSTICE M.NAGAPRASANNA ORAL ORDER The petitioner is before this Court calling in question an order dated 22.02.2025 passed in Criminal Revision Petition No.10041/2024 affirming the order dated 18.05.2024 passed by the concerned Court in Crl.Misc.No.26/2018. 2. Heard Sri. Rakshith Kumar, learned counsel appearing for the petitioner. 3. The petitioner is the husband and respondent No.1, the wife and respondents No.2 and 3, the children born from the wedlock of the petitioner and respondent No.1. The petitioner and respondent No.1 get married on 15.09.2010. The relationship between the two appears to have floundered after the birth of two children/respondent Nos.2 and 3. The wife invokes Section 125 of the Code of Criminal Procedure, 1973 ('the Cr.P.C.' for short) and files Crl.Misc.No.26/2018. The petitioner then files a Miscellaneous First Appeal challenging an order passed by the Family Court in MC.No.294/2015 where the validity of the marriage between the petitioner and respondent - 4 - HC-KAR NC: 2026:KHC:509 CRL.P No. 14726 of 2025 No.1 was pending adjudication. Therefore, the two proceedings that sprang from a floundered relationship are one seeking maintenance under the Cr.P.C. and the other an order passed in MC.No.294/2015. In the proceeding under Section 125 of the Cr.P.C., the respondent files an application seeking DNA test of the petitioner to know the paternity, which comes to be opposed by the petitioner. The concerned Court allows the application and directs conduct of a DNA test. The said order comes to be challenged before the Court of Session in Crl.RP.No.10041/2024, which also comes to be dismissed, thereby permitting the DNA test of the petitioner to be conducted. 4. The learned counsel appearing for the petitioner would vehemently contend that the concerned Court has committed a grave error in law by directing a DNA test failing to appreciate the limited scope of its powers under Section 125 of the Cr.P.C. The power to order a test cannot be exercised as a matter of course. The learned counsel would submit that the concerned Court has erred in overlooking the legal presumption of legitimacy in terms of Section 112 of the Indian Evidence - 5 - HC-KAR NC: 2026:KHC:509 CRL.P No. 14726 of 2025 Act, 1872. The marriage between the parties was solemnized on 15.09.2010 and the children were born during the subsistence of a valid marriage. Therefore, the concerned Court ought not to have as a matter of course permitted conduct of a DNA test upon the petitioner contrary to the legal presumption. 5. I have given my anxious consideration to the submissions made by the learned counsel appearing for the petitioner and have perused the available material on record. 6. The afore-narrated dates linked in the chain of events are a matter of record. The relationship between the two is not in dispute. The wife invokes Section 125 of the Cr.P.C. and files Crl.Misc.No.26/2018 seeking maintenance at the hands of the husband. The husband denied the relationship and made several allegations against the wife that the children are not born from the wedlock of the petitioner and respondent No.1. In that circumstance, the wife files an application seeking conduct of DNA test to ascertain the paternity of the minor children. The learned Magistrate in Crl.Misc.No.26/2018, by rendering cogent reasons, permits conduct of the DNA test in a - 6 - HC-KAR NC: 2026:KHC:509 CRL.P No. 14726 of 2025 peculiar facts and circumstances of the case, which reads as follows: "12. There is no conflict in the three decisions of the Hon'ble Supreme Court, namely, Goutam Kundu vs. State of West Bengal [(1993) 3 SCC 418], Sharda vs. Dharmpal [(2003) 4 SCC 493], and Ashok Kumar vs.Raj Gupta and Ors [(2022 SAR (civ) 109)]. In Goutam Kundu's case, 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. 13. In Sharda vs. Dharmpal [(2003) 4 SCC 493], the Hon'ble Supreme Court considered two questions: (i) Whether matrimonial court has a power to direct a party to undergo medical examination? (ii) Whether passing of such an order would be in violation of Art.21 of the Constitution of India? After elaborate discussions, the Supreme Court answered both questions positively. 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 prime 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. Similar observations have been made by the Apex court in the case of Sharda vs. Dharmpal [(2003) 4 SCC 493 relied by the respondent. 14. In Nandlal Wasudeo Badwaik's case, the Apex Court considered the question whether a scientific proof accepted by the world community to be correct would prevail over the presumption of conclusive proof envisaged under Section 112 of the Evidence Act and answered positively for the reasons elaborated hereunder: "13. We may remember that S.112 of the Evidence Act was enacted at a time when the modern scientific - 7 - HC-KAR NC: 2026:KHC:509 CRL.P No. 14726 of 2025 advancement and DNA test were not even in contemplation of the Legislature. The S.112 raises a presumption of conclusive proof on satisfaction of result of DNA test is said to be scientifically accurate. Although the conditions enumerated therein but the same is rebuttable. The presumption may afford legitimate means of arriving at an affirmative legal conclusion. While the truth or fact is known, in our opinion, there is no need or room for any presumption. Where there is evidence to the contrary, the presumption is rebuttable and must yield to proof. Interest of justice is best served by ascertaining the truth and the Court should be furnished with the best available science and may not be left to bank upon presumptions, unless science has no answer to the facts in issue. In our opinion, when there is a conflict between a conclusive proof envisaged under law and a proof based on scientific advancement accepted by the world community to be correct, the latter must prevail over the former." 15. In the decision in Alexander C.C. vs. Jacob Antony Palakkathadathi @ Amith and another [2012 (3) KLJ 381] a Division Bench of the Hon'ble High Court of Kerala considered the power of the Family Court to entertain application seeking direction for DNA test and this Court held as follows: "When there is a petition for guardianship or there is a case for maintenance under S.125 of Code of Civil Procedure or under S.7 of the Family Court Act, the Family Court would indeed have the power to entertain the application for DNA test. It would also have the power to incidentally decide the question of paternity. Paternity and legitimacy are distinct concepts, as held by the Division Bench. We may notice that S.125 of the Code of Criminal Procedure entitles an illegitimate minor child also to seek maintenance. The emphasis is on paternity and not on legitimacy, in a proceeding under 5.125 brought by an illegitimate child. Since the claim is for maintenance alone and the Family Court, no doubt, has the power to decide the issue as to paternity, and the present order of the Family Court is only by way of assisting it to decide the question relating to paternity, we are of the view that there is no merit in the contention of the petitioner." - 8 - HC-KAR NC: 2026:KHC:509 CRL.P No. 14726 of 2025 16. In all the above decisions, discussions were made in the light of the scope and extent of the presumption of legitimacy under Sec.114 of the Evidence Act also. But, none of the above decisions held a proposition that DNA test is impermissible in view of the presumption of legitimacy under Sec. 114 of the Evidence Act. 17. In the light of the above discussions enlightened by judicial precedents of the Apex Court and the Hon'ble High Courts, 1 hasten to hold that the direction to a person, from whom maintenance is claimed, to submit himself for DNA test is legally permissible, in a maintenance claim under Sec.125 of the Cr.P.C., in the cases where such a test is imminently needed to prove the paternity of the children which is denied by the alleged father, notwithstanding the presumption under Sec.112 of the Indian Evidence Act. The presumption under Sec.112 of the Evidence Act does not bar DNA test to prove fatherhood of a child. But, it cannot be ordered as a routine procedure and the facts and circumstances of the case must be so conducive to rely on such a scientific test only. 18. But, at the same time, in my view, there is no need to take coercive or forceful steps to subject the person against whom DNA test is ordered. Since DNA test is the most reliable, accurate and approved test to prove the paternity of the child as well as the innocence of a person against whom paternity is ascribed, where a person wilfully resist to undergo such a test or disobeys the direction of the court, an adverse inference can be drawn against him under the Illustration (g) of Sec.114 of the Indian Evidence Act, which is extracted below: "(g) That evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it." 19. Coming to the instant case, I am satisfied that the application has merits and such a direction to the respondent to submit himself for DNA test to be ordered. According to the mother of the minor children, she denied her marriages with other persons as alleged by the respondent. She has specifically stated that the respondent is her sole husband and minor children are - 9 - HC-KAR NC: 2026:KHC:509 CRL.P No. 14726 of 2025 begotten though him. As the respondent has made scandalous remarks against the character of the petitioner no.1/wife alleging that she is women of loose character and leading adulterous life and even she married 5 to 6 persons including Nagaraj and children were born when the marriage of the petitioner no.1/wife was in subsistence with the Nagaraj. This is a fit case where a DNA test is imminently needed, particularly when the respondent himself has declared in the open court that he is ready for DNA test to prove his defense. However he did not file any application for DNA test and thus the petitioner No.1/wife filed the present application and she is ready to meet all expenses for the same. So, his subsequent withdrawal from the said challenge is not justifiable also. In all the decisions, the Hon'ble Supreme Court cautioned about the consequences of DNA test and held that the law leans in favour of the innocent child from being bastardised, if his mother and spouse were living together during the time of conception. But, in the instant case, no such question would arise; but to the contrary, here, an innocent children, whose paternity stands denied, the mother as well as children are craving for an opportunity to prove the parentage by scientific test. I am unable to deny an opportunity for the same. 20. As a sequel of the above discussion, I am of the opinion that, the application has merits and it is liable to be allowed. Consequently, I proceed to pass the following- ORDER The application filed by the petitioner No.1 wife under section 151 of CPC to undergo D.N.A test by the respondent/husband is hereby allowed and no order as to cost in view of the relationship between the parties. In the result, the respondent is directed to undergo D.N.A test in State Forensic Science Laboratory, Madivala, Bangalore, on 20.06.2024. It is needless to say that the minor children are also directed to appear before the aforesaid State Forensic Madivala, Science Laboratory, Bangalore, to - 10 - HC-KAR NC: 2026:KHC:509 CRL.P No. 14726 of 2025 undergo D.N.A test and all necessary expenditure shall be borne by the petitioner No.1/wife. Put up on 03.07.2024." The husband challenges the same before the Court of Session in Crl.RP.No.10041/2024. The Court of Session rejects the revision petition by the following order: "16. Further held that a Court is required to be sensitive to the fact, but for the medical/DNA test. it would be impossible for the respondent herein to establish the assertions made in the pleadings. Further held that the Family Court had been adequately sensitive in taking note of the statement of the respondent to the effect that he would not disown Master "X" even if the paternity test establishes that he is not the biological father. That the respondent had also made prayers for the custody of the said child, therefore, the interest of the child was not jeopardized in allowing the DNA test. Further held in the said case that if the appellant failed to comply with the directions of the Family Court, the Court can draw a presumption of the nature contemplated under illustration (h) of Section 114 of the Evidence Act. 17. Further the Hon'ble Apex Court held as follows; "22.2 This Court has consistently invoked the principle of best interest of child, particularly, in disputes concerning custody of children. 22.3. It is undeniable that a finding as to Illegitimacy. if revealed in a DNA test, would, at the very least adversely affect the child psychologically. It can cause not only confusion in the mind of the child, but a quest to find out who the real father is and a mixed feeling towards a person who may have nurtured the child, but is not the biological father. Not knowing who one's father is creates a mental trauma in a child. One can imagine, if. after coming to know the identity of the biological father what greater trauma and stress would impact on a young mind. Proceedings which are in rem - 11 - HC-KAR NC: 2026:KHC:509 CRL.P No. 14726 of 2025 have a real impact on not only the child, but also on the relationship between the mother and the child itself which is otherwise sublime. It has been said that parents of a child may have an illegitimate relationship, but a child born out of such a relationship cannot carry the stamp of illegitimacy on its forehead, as, such a child has no role to play in its birth. An Innocent child cannot be traumatised and subjected to extreme stress and tension in order to discover its paternity. That is why Section 112 of the Evidence Act speaks about a conclusive presumption regarding the paternity of a child, subject to a rebuttal, as provided in the second part of the Section. In today's world, there can even be a race to claim paternity of a child so as to invade upon its rights, particularly, if such a child is endowed with property and wealth. There could also be exclusions in a testament doubting the paternity of a child or an evasion in performance of parental obligations such as educational expenses by simply doubting the payment of maintenance paternity of a child. In many cases, this would cast a doubt on the chastity of the mother of a child when no such doubt could arise. As a result, the reputation and dignity of a mother of a child would be jeopardised in society. What is of utmost importance for a lady who is the mother of a child is to protect her chastity as well as her dignity and reputation, in that, she would also preserve the dignity of her child. No woman, particularly, who is married can be exposed to an enquiry on the paternity of a child she has given birth to in the face of Section 112 of the Evidence Act subject to the presumption being rebutted by strong and cogent evidence. Section 112 particularly speaks about birth of a child during marriage and raises a conclusive presumption about legitimacy, Section 112 has recognised the institution of marriage i.e., a valid marriage for the purpose of conferring legitimacy on children born during the subsistence of such a marriage. As to children born outside a valid marriage, the personal law of respective parties would apply. But in the cases of children born from a relationship in the nature - 12 - HC-KAR NC: 2026:KHC:509 CRL.P No. 14726 of 2025 of marriage and when the parents are in a domestic relationship or those born as a result of a sexual assault or to those who are in a casual relationship or to those forced or subjected to render sexual favours and beget children, the problem of their legitimacy gets complex and is serious. A child should not be lost in its search for paternity. Precious childhood and youth cannot be lost in a quest to know about one's paternity. Therefore, the wholesome object of Section 112 of the Evidence Act which confers legitimacy on children born during the subsistence of a valid marriage, subject to the same being rebutted by cogent and strong evidence, is to be preserved. Children of today are citizens and the future of a nation. The confidence and happiness of a child who is showered with love and affection by both parents is totally distinct from that of a child who has no parents or has lost a parent and still worse, is that of a child whose paternity is in question without there being any cogent reason for the same. The plight of a child whose paternity and thus his legitimacy. is questioned would sink into a vortex of confusion which can be confounded if Courts are not cautious and responsible enough to exercise discretion in a most judicious and cautious manner. 'Illegitimate' a term that brands an individual with the shame of being born outside wedlock, casts a shadow on one's identity. Times change and attitudes may change, but the impact of growing up with the social stigma of being illegitimate, does not. The Courts must hence be Inclined towards upholding the legitimacy of the child unless the facts are so compulsive and clinching as to necessarily warrant a finding that the child could not at all have been begotten to the father and as such a legitimisation of the child would result in rank injustice to the father, vide Dukhtar Jahan vs. Mohammed Farooq, (1987) 1 SCC 624. No adverse Inference can be raised in the instant case regarding the legitimacy or paternity of Master "X" vis-à-vis the appellant herein. on her declining to subject - 13 - HC-KAR NC: 2026:KHC:509 CRL.P No. 14726 of 2025 Master "X" to a paternity test. Further, on the appellant declining to subject Master "X" to a paternity test, no adverse Inference can be drawn as regards the alleged adultery on the part of the appellant herein can be raised. In our view, the allegation of adultery has to be proved by the respondent herein de hors the issue of paternity of Master "X". 27. In the result, the present appeal is allowed. Consequently, the impugned judgment of the High Court of Judicature at Bombay dated 22 November, 2021 and the order of the Family Court. Pune dated 12 August, 2021, are set aside." In view of the above said judgment and for the above said reasons this revision petition deserves to be set aside. 18. In the present case as the revision petitioner herein has disputed the paternity of the petitioner No.2 and 3, there is no other way for the petitioner no.1 to prove the paternity of the petitioner No.2 and 3 except to undergo DNA test. Suppose if at all the petitioner No.2 and 3 are not the children of the revision petitioner as contended by him, the said DNA test may aid his case as well. On the other hand it shows that the very objection raised by the revision petitioner herein itself shows that he wants to suppress the truth. 19. Therefore in view of the judgment of Hon'ble Apex court as stated supra, if DNA test is done to determine the paternity of petitioner No.2 and 3 which is very much, necessary to decide the case whether they are the children of the revision petitioner or not, no hardship is caused to the revision petitioner. On the other hand if DNA report does not come in his favour, it aids his case. Apart from that if the DNA test is done, the truth will come out and the paternity of petitioner No.2 and 3 will throw light with regard to the domestic relationship between the revision petitioner and respondent no.2 and 3 herein and also it will aid the court in coming to just and right conclusion. Thus the trial court by considering all these reasons has allowed the application for DNA test to determine the paternity of petitioner No.2 and 3 which requires no interference by this court. Hence, under the - 14 - HC-KAR NC: 2026:KHC:509 CRL.P No. 14726 of 2025 said circumstances the revision petitioner has not made out grounds for this court to interfere with the order passed by the trial court. Hence, I answered point No.1 in Negative. 20. Point No.2: For the above reasons, I proceed to pass the following: ::ORDER:: The Criminal Revision Petition filed by the revision petitioner U/Sec.397(1) and (3) r/w/Sec.399(3) of Cr.P.C. is hereby dismissed. The impugned order passed by the Prl.Senior Civil.Judge and JMFC, Sagar in Crl. Mis. No.26/2018 dated 18-05-2024 is hereby confirmed. Send the TCR to the trial court along with the copy of this order." The husband is now before the Court only contending that personal liberty guaranteed under Article 21 of the Constitution of India is at stake by the callous order passed by the learned Magistrate, as affirmed by the Court of Session. 7. I decline to accept the submission of the learned counsel appearing for the petitioner. The wife did not on her own volition file said application seeking DNA test to be conducted. The husband went on denying the relationship and the birth of children from the wedlock. Several allegations are made against the wife and the character of the wife. Though it - 15 - HC-KAR NC: 2026:KHC:509 CRL.P No. 14726 of 2025 is a proceeding under Section 125 of the Cr.P.C., the husband is wanting to project the same before the Family Court in MC.No.294/2015. Therefore, the concerned Courts, not one, but two have by rendering appropriate reasons has allowed the application filed by the wife and rejected the revision filed by the husband against the said order. 8. Finding no merit, owing to the peculiarity of the facts pertaining to the case at hand, the petition stands rejected. Sd/- (M.NAGAPRASANNA) JUDGE JY List No.: 1 Sl No.: 167