2026:CGHC:4005 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 2862 of 2024

1 - Bharti Sahu And Anr. W/o Vijay Kumar Sahu Aged About 27 Years R/o Village Joratarai, Shitala Para, P.S. Bhilai Bhatti, Tehsil Durg, District Durg, C.G.

2 - Naitik Kumar Sahu S/o Vijay Kumar Sahu Aged About 6 Years (Minor Natural Guardian Mother Bharti Sahu), R/o Village Joratarai, Shitala Para, P.S. Bhilai Bhatti, Tehsil Durg, District Durg, C.G.

... Petitioners versus Vijay Kumar Sahu S/o Jagannath Sahu Aged About 30 Years R/o Village Kataro P.S. Utai, Chowki Machandur Tehsil Durg, District Durg, C.G.

... Respondent (Cause-title taken from Case Information System)

Digitally signed by PREETI PREETI KUMARI For Petitioners : Mr. Virendra Kashyap, Advocate KUMARI Date:

2026.01.24

11:09:56 For Respondent : Mr. Punit Ruparel, Advocate +0530 Hon'ble Shri Ramesh Sinha, Chief Justice

Order on Board

22 .01.2026

1. Heard Mr. Virendra Kashyap, learned counsel for the petitioners and Mr. Punit Ruparel, learned counsel appearing on behalf of the respondent.

2. The present petition has been filed by the petitioners with the following relief:-

“It is therefore prayed that, this Hon'ble Court may kindly be pleased to allow this Criminal Miscellaneous Petition against the order dated 27/09/2024 wherein the passed by the learned Principal Judge of Family Court Durg (C.G.) in Miscellaneous Criminal Case No.494/2019 in the interest of justice.”

3. Mr. Virendra Kashyap, learned counsel for the petitioners submits that the impugned order dated 27.09.2024, passed by the learned Family Court, Durg, allowing the application of the respondent for conducting a DNA test of applicant No.2, is illegal, arbitrary, and unsustainable in law. It is submitted that the marriage between applicant No.1 and the respondent admittedly took place on 24.04.2018, and applicant No.2 was born on 27.12.2018 during the subsistence of the said lawful wedlock. The respondent has himself admitted both the marriage and the date of birth of applicant No.2 in his reply filed under Section 125 CrPC. He further submits that despite admitted cohabitation of the parties after marriage, the respondent has made reckless and scandalous allegations against the character of applicant No.1, only with a view to evade his statutory obligation of maintenance. The allegations of alleged prior relationship are baseless, vague, and unsubstantiated, and have been raised for the first time only to defeat the object of Section 125 CrPC.

4. It is submitted by Mr. Kashyap that the learned Family Court has completely ignored the statutory presumption under Section 112 of the Indian Evidence Act, 1872, which accords conclusive proof of legitimacy to a child born during a valid marriage. The respondent has neither pleaded nor proved non-access at the time of conception, which is the only legally permissible mode to rebut the presumption under Section 112. In the absence of such pleadings or proof, the direction for DNA test is wholly impermissible. He further submits that the proceedings under Section 125 CrPC are summary in nature, intended to provide immediate succour to destitute wife and child, and issues relating to paternity are essentially civil in nature, which cannot be permitted to derail maintenance proceedings. The respondent was fully aware of the birth of applicant No.2 since 2018 and never disputed paternity until the maintenance proceedings, which clearly demonstrates mala fide intent.

5. Mr. Kashyap contends that the learned Family Court has passed the impugned order in a mechanical manner, without recording any finding of eminent need or necessity for conducting DNA test, and without weighing the serious consequences of such an order on the dignity of applicant No.1 and the legitimacy of applicant No.2, contrary to the settled law laid down by the Hon’ble Supreme Court in Kantidevi vs. Poshiram (2001) 5 SCC 311 and Banarsi Dass vs. Tiku Dutta (2005) 4 SCC 449

6. Lastly, Mr. Kashyap submits that the impugned order su