1. Suit for declaration of will as null and void, involving dispute over daughter's maternity in ancestral property context. (Para 2 , 3 )
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2026 Supreme(Raj) 641
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
BIPIN GUPTA, J.
Smt. Bhauri Devi, D/o. Badri Wife Of Late Bhaurilal – Appellant
Versus
Mahendra Kumar Son Of Sarvan – Respondent
S.B. Civil Writ Petition No. 5426 of 2022
Decided On : 07-02-2026
Important Points
DNA tests are permissible to determine maternity when a mother denies the child, as no statutory presumption of legitimacy exists for mothers. While privacy is considered, "eminent need" for truth justifies the order, and refusal leads to an adverse inference under the law of evidence.
Subject
Civil Law - Evidence & Procedure
Act Referred
Headnote
(A) Code of Civil Procedure, 1908 - Order 26 Rule 10A - Indian Evidence Act, 1872 - Sections 112 and 114 - Bharatiya Sakshya Adhiniyam, 2023 - Sections 116 and 119 - Determination of maternity through DNA test - Where the mother denies the relationship with the child, no statutory presumption exists under Section 112 of the Evidence Act or Section 116 of BSA, 2023, as these provisions primarily create a presumption of legitimacy regarding the father - DNA testing is the most conclusive scientific method to determine maternity in such cases (Paras 16, 18, 19, 21).
(B) Right to Privacy vs. Search for Truth - While a person cannot be forcibly compelled to undergo a DNA test, the court may issue a direction if the test is "eminently needed" for a just decision after balancing the interests of the parties - If a party refuses to comply with such a direction, the court may draw an adverse inference under Section 114 Illustration (h) of the Evidence Act or Section 119 of BSA, 2023 (Para 22).
Facts of the case:
A suit was filed for the declaration of a Will as null and void and for a declaration of ownership of a share in ancestral property. The plaintiff claimed to be the daughter of the deceased father and the defendant mother. The defendant mother denied the plaintiff's claim of being her daughter. To resolve the issue of maternity, the plaintiff filed an application under Order 26 Rule 10A CPC for a DNA test of the mother. The trial court rejected the application on the grounds that it would affect the privacy of the defendants and because the defendants had refused to undergo the test.
Findings of Court:
The court found that the dispute specifically concerns maternity, which is distinct from paternity. Since the legislature did not provide a presumption of legitimacy for the mother in the same way it did for the father, a child must rely on scientific evidence to prove maternity when denied. The court held that the scientific accuracy of a DNA test outweighs legal presumptions and privacy concerns when such a test is necessary to reach the truth.
Issues: Whether a DNA test can be ordered to prove maternity when the mother denies the relationship and whether the right to privacy overrides the need for conclusive scientific evidence in a suit for declaration of rights.
Ratio Decidendi: Proof based on scientific DNA analysis prevails over legal presumptions when a conflict exists. In cases of disputed maternity where no statutory presumption exists for the mother, DNA testing is a necessary and conclusive tool. While privacy is a protected right, the "eminent need" for truth in the interest of justice justifies the direction for a test. A party's refusal to undergo the test justifies the court drawing an adverse inference against them.
Result: Writ allowed. Order dated 24.02.2022 quashed. Application under Order 26 Rule 10A partly allowed.
(B) Right to Privacy vs. Search for Truth - While a person cannot be forcibly compelled to undergo a DNA test, the court may issue a direction if the test is "eminently needed" for a just decision after balancing the interests of the parties - If a party refuses to comply with such a direction, the court may draw an adverse inference under Section 114 Illustration (h) of the Evidence Act or Section 119 of BSA, 2023 (Para 22).
Facts of the case:
A suit was filed for the declaration of a Will as null and void and for a declaration of ownership of a share in ancestral property. The plaintiff claimed to be the daughter of the deceased father and the defendant mother. The defendant mother denied the plaintiff's claim of being her daughter. To resolve the issue of maternity, the plaintiff filed an application under Order 26 Rule 10A CPC for a DNA test of the mother. The trial court rejected the application on the grounds that it would affect the privacy of the defendants and because the defendants had refused to undergo the test.
Findings of Court:
The court found that the dispute specifically concerns maternity, which is distinct from paternity. Since the legislature did not provide a presumption of legitimacy for the mother in the same way it did for the father, a child must rely on scientific evidence to prove maternity when denied. The court held that the scientific accuracy of a DNA test outweighs legal presumptions and privacy concerns when such a test is necessary to reach the truth.
Issues: Whether a DNA test can be ordered to prove maternity when the mother denies the relationship and whether the right to privacy overrides the need for conclusive scientific evidence in a suit for declaration of rights.
Ratio Decidendi: Proof based on scientific DNA analysis prevails over legal presumptions when a conflict exists. In cases of disputed maternity where no statutory presumption exists for the mother, DNA testing is a necessary and conclusive tool. While privacy is a protected right, the "eminent need" for truth in the interest of justice justifies the direction for a test. A party's refusal to undergo the test justifies the court drawing an adverse inference against them.
Result: Writ allowed. Order dated 24.02.2022 quashed. Application under Order 26 Rule 10A partly allowed.
Legal Category Hierarchy
Advocates Appeared:
For the Appellant : Mr. Anil Mehta, Sr. Adv. assisted by Mr. Raj Kamal Gaur and Mr. Yashodhar Pandey
For the Respondent: Mr. Prahlad Sharma with Mr. Ramprasad Sharma Mr. Khem Singh Rajawat Mr. Lakhan Sharma Mr. Akshay Sharma
For the Appellant : Mr. Anil Mehta, Sr. Adv. assisted by Mr. Raj Kamal Gaur and Mr. Yashodhar Pandey
For the Respondent: Mr. Prahlad Sharma with Mr. Ramprasad Sharma Mr. Khem Singh Rajawat Mr. Lakhan Sharma Mr. Akshay Sharma
Table of Contents
2. Petitioner sought DNA test to prove maternity; respondents opposed on privacy grounds and burden of proof. (Para 4 , 5 , 6 , 9 , 10 , 12 )
3. Court noted rarity of mother denying maternity, absence of statutory presumption, and necessity of DNA testing. (Para 16 , 17 , 18 , 19 , 20 , 21 )
4. DNA test permissible when eminently needed; refusal triggers adverse inference under Section 114 Evidence Act. (Para 22 , 23 , 24 )
5. Writ allowed; order set aside; trial court directed to order DNA test of defendant no.2. (Para 24 , 25 )
6. Can a court order a DNA test to determine maternity when the mother denies the child?
Yes, when eminently needed after balancing interests; DNA test is permissible to ascertain maternity, despite no statutory presumption. (Para 16 , 17 , 20 , 21 )
7. What is the consequence if a party refuses to undergo a court-ordered DNA test?
Court may draw an adverse inference against the refusing party under Section 114 (illustration h) of the Evidence Act. (Para 22 )
8. Does a DNA test infringe privacy rights of the person ordered to undergo it?
Privacy is a consideration, but court must balance it against duty to reach truth; DNA test can be ordered if justified. (Para 22 )
9. Is a DNA test necessary for a defendant claiming to be a son when the plaintiff challenges legitimacy?
No, defendant no.3 claiming to be son must prove it himself; no order for his DNA test is required. (Para 23 )
JUDGMENT :
BIPIN GUPTA, J.
1. The present writ petition has been filed assailing the order dated 24.02.2022 passed by the learned Additional Civil Judge & Judicial Magistrate No.17, Jaipur Metropolitan-I, Sanganer in Civil Suit No.77/2017, whereby the application filed by the petitioner-plaintiff under Order 26 Rule 10-A CPC has been rejected.
2. The brief facts of the case are that a suit was filed by the plaintiff-petitioner, for declaration of the will dated 10.04.2014, to be null and void and for permanent injunction, contending therein that the plaintiff-petitioner is daughter of Shri. Badri and Defendant No.2-Smt. Bila Devi is the wife of Shri. Badri and mother of plaintiff-petitioner. Badri has expired on 14.01.2017.
2.1 Late Shri. Badri was having agriculture land, which was an ancestral land recorded in the name of Shri Badri; father of the plaintiff-petitioner who had half share in the property. Out of this land, some was acquired for the Central Spine Scheme by RIICO and father of the plaintiff-petitioner got eight plots through different allotment letters in lieu of his share in the land.
2.2 A Will dated 10.04.2014, which was registered was executed by her father, whereas he had no right to execute the Will as the property was an ancestral one. In the property, plaintiff-petitioner and her mother i.e. defendant No.2-Smt. Bila Devi had a right. On 17.02.2017, the knowledge of the Will came to the plaintiff and thereafter, the suit was filed for declaration of the Will as null and void and further, declaration was sought that the plaintiff-petitioner may be declared as owner of the half share of her father.
3. The said suit was opposed by the defendants-respondents, denying the fact of plaintiff-Smt. Bhauri Devi being daughter of Shri Badri. Further, defendant No.2-Smt. Bila Devi, who is wife of Shri Badri also denied the factum of plaintiff-petitioner being her daughter. It was also alleged in the reply by the defendants- respondents that Shri Badri and Smt. Bila Devi had a son named as Shri. Ramswaroop and therefore, prayed that the suit may be rejected.
4. The dispute thus, arose that whether the plaintiff-petitioner is the daughter of Shri Badri and defendant No.2-Smt. Bila Devi or not and to crystallize the issue, an application was moved by the plaintiff-petitioner under Order 26 Rule 10A CPC, contending that the paternity of the plaintiff-petitioner, could be proved beyond doubt through scientific investigation, i.e., by conducting a DNA test of the mother Smt. Bila Devi, the plaintiff Smt.
Bhauri Devi and of defendant No.3 Ramswaroop.
5. The plaintiff-petitioner in the application also drew attention of the learned trial Court to Issue No.5, which was to the effect that whether the plaintiff-petitioner is the daughter of Late Shri Badri or not. Further, in the application it was claimed that it was even necessary to find out that whether defendant No.3-Ramswaroop is the son of Smt. Bila Devi or not and for that purpose also scientific investigation i.e. DNA test is required to be carried out. Moreover, it was contended that defendant No.2-Smt. Bila Devi aged about 90 years is under undue pressure of defendants No.1 & 3. Therefore, also it was necessary to carry out the DNA test, where the Court can through scientific investigation arrive at a conclusive conclusion.
6. In reply to the said application, the defendants denied the averments made in the application and stated in the reply that since, defendant No.2-Smt. Bila Devi had denied the claim of the plaintiff-petitioner being the daughter of Shri Badri and Smt. Bila Devi. Therefore, there is no necessity of any scientific investigation to be conducted. It was also contended in the reply that if any such order is passed, then the same will affect the privacy of the defendants. It was further contended by the respondents that the burden is on the plaintiff-petitioner to prove the fact that she is the daughter of Late Shri. Badri and Smt. Bila Devi. Further, even in t
