The main legal point established in the judgment is the high standard of proof required to displace the presumption of legitimacy under section 112 of the Evidence Act and the need for a strong prima facie case to order a DNA test in property disputes.

ORDER : – This petition under Article 227 of the Constitution of India has been filed against the order dated 12-5-2017 passed by Twelfth Civil Judge, Class II, Gwalior in Civil Suit No. 17-A/2014 by which the application filed by the petitioner for conducting DNA test of Hemlata Yadav has been rejected.

2. The necessary facts for disposal of present petition in short are that the husband of the petitioner, namely Late Kaptan Singh had filed a civil suit against the respondents/defendants for partition. During the pendency of this suit, the husband of the petitioner died. As a result, an application for bringing the petitioner as legal representative on record was moved. An objection was raised by respondent No. 2 to the application by alleging that the petitioner has not impleaded Hemlata Yadav as legal representative of Late Kaptan Singh, whereas she is the daughter of Late Kaptan Singh. Thereafter, the petitioner moved an application under Order 26 Rule 10(A), Civil Procedure Code read with section 45 of Indian Evidence Act on the ground that the petitioner who is the wife of Late Kaptan Singh had never given birth to any child and Hemlata Yadav is the daughter of respondent No. 2-Laxmi Naryan Singh, and accordingly, it was prayed that the DNA test of Hemlata Yadav may be conducted so that it can be ascertained that Hemlata Yadav is not the daughter of Late Kaptan Singh. By the impugned order, the said application has been rejected.

3. Challenging the order passed by Court below, it is submitted by counsel for petitioner that where the question of property is involved and the paternity of the person is also in dispute, then a direction for DNA test may be issued. To substantiate his submission, counsel for petitioner has relied upon the judgment passed by a Coordinate Bench of this Court in the case of Radheshyam vs. Kamla Devi and others, reported in 2022(2) M.P.L.J. 38.

4. None for the respondents though served.

5. Heard the learned counsel for the petitioner.

6. The Supreme Court in the case of Banarsi Dass vs. Teeku Dutta (Mrs.) and another, reported in (2005) 4 SCC 449 has held that the Courts in India cannot order blood test as a matter of course. There must be a strong prima-facie case to the effect that the husband had no access in order to dispel the presumption arising under section 112 of Evidence Act and the Court must carefully examine as to what would be the consequence of ordering the blood test i.e. whether it will have the effect of branding a child as a illegitimate child or mother as an unchaste woman.

7. Directions for conducting the DNA test is also violative of privacy of a individual.

8. The Supreme Court in the case of Ashok Kumar vs. Raj Gupta and others, reported in (2022) 1 SCC 20 has held as under :

“9. In Bhabani Prasad Jena vs. Orissa State Commission for Women [Bhabani Prasad Jena vs. Orissa State Commission for Women, (2010) 8 SCC 633 = (2010) 3 SCC (Civ) 501 = (2010) 3 SCC (Cri) 1053], R. M. Lodha, J., while reconciling two earlier decisions [Goutam Kundu vs. State of W. B., (1993) 3 SCC 418 = 1993 SCC (Cri) 928], [Sharda vs. Dharmpal, (2003) 4 SCC 493] of this Court on the point, had rightfully prescribed that : (SCC p. 643, para 23)

“23. There is no conflict in the two decisions of this Court, namely, Goutam Kundu [Goutam Kundu vs. State of W. B., (1993) 3 SCC 418 = 1993 SCC (Cri) 928] and Sharda [Sharda vs. Dharmpal, (2003) 4 SCC 493]. In Goutam Kundu [Goutam Kundu vs. State of W. B., (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 [Sharda vs. Dharmpal, (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