Presumption of legitimacy under Section 112 can only be challenged by proving non-access; DNA tests for paternity are not warranted without explicit denial of paternity.

JUDGMENT :

R.M. JOSHI, J.

1. By consent of both sides, heard finally at the stage of admission.

2. This petition takes exception to the order dated 17/02/2020 passed by the Family Court below Exh.51 in Petition No.A-457/2023 accepting the request made by the respondent-husband of conducting DNA Profiling Test to decide legitimacy of the child born on 27/07/2013.

3. The facts which led to filing of this petition can be narrated in brief as under :

i. Petitioner No.1 got married with the respondent on 18/12/2011. On 19/01/2013, when she left the matrimonial home, she was carrying pregnancy of three months. The respondent issued notice to the petitioner on 28/01/2013 calling upon her to come back to the matrimonial home for cohabitation. The respondent on 08/02/2013 filed petition bearing No.A-139/2013 for judicial separation before the Family Court, Nagpur. Petitioner No.1 also filed petition bearing No.A-4457/2013 for seeking restitution of conjugal rights under Section 9 of the Hindu Marriage Act. The husband though withdrew the proceedings filed for judicial separation, filed petition for decree of divorce on the ground of adultery, cruelty and desertion. This petition was numbered as Petition No.A-199/2014. Both these petitions are being heard together by the Family Court.

ii. The child was born on 27/07/2013. The respondent- husband filed petition by making allegations against petitioner No.1 doubting her chastity. Similarly an application came to be filed for conducting DNA Test of the child, before the Judicial Magistrate First Class, Nagpur in R.C.C. No.912/2014. The said application, however, was rejected on 19/11/2016.

iii. In the light of these facts, when the proceedings are at the stage of recording evidence, application [Exh.51] came to be filed by the respondent-husband for seeking DNA Profiling Test for deciding legitimacy of the child.

iv. This application came to be allowed. The wife being aggrieved by this order, the present petition is filed.

4. The Counsel for the petitioner submits that the Family Court has committed error in allowing the application essentially on the ground of the alleged admission given by petitioner No.1 during her cross-examination. He drew attention of this Court to the portion of the said cross-examination, wherein it is accepted by the wife that if the Court directs the DNA test of the child, she would abide by the same. It is the contention of the Counsel for the petitioner that on the basis of this statement, it cannot be construed that there is consent of the wife and on such presumption said application [Exh.51] ought not to have been allowed. He opposes the impugned order on the count that only in exceptional cases, conducting of DNA Profiling Test in order to deciding the paternity can be directed and present case is not exceptional. It is his submission that in the facts of the case, more particularly, when husband does not deny access to wife during relevant period, no such direction is required for want of any genuine issue involved herein. In order to substantiate his contention, he has drawn attention of this Court to the notice issued by the respondent dated 28/01/2013, wherein there was no allegation made against petitioner No.1 about she being unchaste and in fact it indicates that it was within knowledge of the respondent that his wife is carrying three months pregnancy. It is his submission that at no point of time, it is the case of the respondent that at the relevant time he had no access to the wife and that there were no physical relationships between them. On these amongst other submissions, he see