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2025 Supreme(Online)(Mad) 56941
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 25.09.2025 CORAM THE HONOURABLE MR.JUSTICE SHAMIM AHMED CRL.R.C.(MD)No.842 of 2025 and CRL MP(MD)No.8958 of 2025 Kandhasamy, S/o.Velan, K.Vallakundapuram, Udumalaipettai, Thiruppur District. ... Petitioner vs.
1.Magudeeshwari, W/o. Kandhasamy
2.Minor.Akshya, D/o. Kandhasamy (R-2 is represented by R1 who is her mother and natural guardian)
Both are residing at Kavalapatti Village, Palani Taluk, Dindigul District. ... Respondents PRAYER: Criminal Revision Petition is filed under Section 438 r/w 442 of BNSS, 2023, to call for the records pertains to the impugned order passed by the learned Judicial Magistrate, Palani in Cr.M.P.No.504 of
2025 dated 12.06.2025 in M.C.No.4 of 2021 and to set aside the same.
For Petitioner : Mr.A.K.Manikkam For Respondent : Ms.Kayal Vizhi For Mr.T.Thirumurugan *****
DNA tests cannot be ordered without a strong prima facie case; the legal presumption of legitimacy from a valid marriage stands firm against mere allegations of paternity denial.
Headnote:(A) Bharatiya Nagarik Suraksha Sanhita, 2023 - Sections 438 and 442 - DNA test application in maintenance proceedings dismissed for lack of sufficient cause - Delay of 12 years since divorce not justified - Legal presumption of legitimacy under Section 116 highlights that determination of paternity requires more than mere claims. (Paras 25, 36, 38)
(B) DNA Test - Legal implications - Right to privacy and fundamental rights must be protected; DNA test cannot be mandated without prima facie evidence against the presumption of legitimacy established by subsequent marriage. (Paras 31, 36, 38)
Facts of the case:
The revision petitioner filed for a DNA test to prove that he is not the father of his daughter's child post-divorce. The maintenance case initiated by the mother of the child led to this dispute. The trial court dismissed his application, emphasizing delay and lack of evidence.
Findings of Court:
The court affirmed the trial court's dismissal, highlighting that the revision petitioner failed to establish a prima facie case to warrant a DNA test, amidst privacy concerns regarding the child’s identity.
Issues: The main issues were whether a DNA test should be ordered in light of the delay and the presumption of legitimacy, and if the applicant provided sufficient evidence to necessitate such a test.
Ratio Decidendi: The court ruled that rights to privacy and the presumption of legitimacy cannot be disregarded, and the revision petitioner did not present adequate evidence to challenge the mother’s claim. Further, the delay in seeking DNA testing undermined his case.
Result: Criminal Revision Case dismissed.
ORDER
1. This Criminal Revision Case has been filed, to call for the records, relating to the order dated, 12.06.2025, made in Cr.MP.No.504 of 2025 in MC.No.4 of 2021, by the Judicial Magistrate, Palani and to set aside the same.
2. The facts of the case, in a nutshell, as set out in the affidavit filed in support of this Criminal Revision Case, led to filing of this Criminal Revision Case and necessary for disposal of the same, are as follows:-
(a)The marriage between the Revision Petitioner and the 1st Respondent was allegedly solemnized on 25.03.2007, according to Hindu rites and customs. Out of their wedlock, the 2nd Respondent was born to them on 13.12.2009. Due to matrimonial dispute arose between them, they are living separately. The 1st respondent/wife filed a petition under HMOP No. 17 of 2012 against the petitioner before the Palani Divisional Court, seeking a divorce order. Subsequently, they jointly filed a memo and obtained a divorce on 04.03.2012.
(b)Thereafter, the 1st Respondent had filed a maintenance Petition under Section 125 of Cr.PC against the Revision Petitioner in MC.No.4 of 2021 on the file of the Judicial Magistrate, Palani and the Revision Petitioner had also filed a counter affidavit in the said maintenance Petition. In the said maintenance Petition, the Revision Petitioner had filed an application in Cr.MP.No.504 of 2025, seeking for a DNA test to prove that the 2nd Respondent was not born through him and the 1st respondent/wife did not file any counter affidavit to that application.
(c)By the impugned order, the Trial Court had dismissed the said Petition/Application, seeking DNA Test, stating that there is no need to order DNA test to determine whether the 2nd Respondent is the child of the Petitioner and the 1st Respondent. As against the same, the Revision Petitioner herein, has filed this Criminal Revision Case.
3. This court heard Mr.A.K.Manikkam, the learned counsel for the Revision Petitioner and Mr.T.Thirumurgan, learned counsel for the Respondent and considered his submissions and also perused the entire materials available on record.
4. The learned counsel for the Revision Petitioner has submitted that the issue between the 1st respondent and the petitioner revolves around the 1st respondent's inappropriate behavior with the petitioner's relative, Thirumalaisamy. During the divorce proceedings initiated by the 1st respondent, it was stated that the 2nd respondent (the child) was never born to the petitioner, and the 1st respondent agreed to the divorce based on this acknowledgment. During cross-examination, when asked if she had any objection to sending the child for a test to confirm that he was not the father, the 1st respondent replied that she had no objection. However, the petitioner alleges that the 1st respondent has now filed a maintenance case with false information. Under such circumstances, the petitioner has filed a petition in Cr.M.P.No.504 of 2025 requesting to appoint a Commissioner to collect blood samples from the petitioner and the respondents and send them to a Government Laboratory for a paternity test. The petitioner's counsel argues that this is necessary to determine the truth and that not doing so would cause him irreparable hardship and loss. Thus, an application, seeking a DNA test of the child in the matrimonial proceedings, is maintainable. The learned counsel has further submitted that the Trial Court erred in passing the impugned order, while rejecting the application of the petition for DNA Test, as it did not consider the facts of the matter and thus, the learned counsel prays for allowing this Criminal Revision Case.
5. The case of the Revision Petitioner before the Trial Court in the Petition/Application seeking DNA Test is that the minor child/the 2nd Respondent did not born through him and in order to prove his case, DNA test is necessary. Though no counter was filed by the Respondents herein before the Trial Court, they were represented by an Advocate, whose
