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2025 Supreme(Online)(Mad) 57694
2025:MHC:2247 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 18.09.2025 CORAM:
THE HONOURABLE MR.JUSTICE SHAMIM AHMED Crl.RC(MD)No.1103 of 2025 Crl.MP(MD)No.11058 of 2025 Arumugam, S/o.Nachimuthu RMTC Periyar Nagar, 14th Ward, Obulapuram Ayakudi Post, Palani Taluk, Dindigul District Revision Petitioner Vs
1. Kalaiselvi, D/o.Balakrishnan Nethaji Street, Gomathipuram, Sooleswarnpatti Pollachi Taluk, Coimbatore District
2. Minor Salini, D/o.Balakrishnan Nethaji Street, Gomathipuram, Sooleswarnpatti Pollachi Taluk, Coimbatore District Respondents Prayer:- This Criminal Revision Case has been filed, under Sections 438 and 442 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) to call for the records, relating to the order dated, 04.07.2025 made in Crl.MP.No. 2759 of 2023 in MC.No.13 of 2012, by the Judicial Magistrate, Palani and to set aside the same.
For Revision Petitioner : Mr.T.Leninkumar For Respondents : No Appearance
A request for a DNA test in paternity disputes requires a strong prima facie case to overcome the presumption of legitimacy; rights against self-incrimination and privacy must be upheld.
Headnote:(A) Bharatiya Nagarik Suraksha Sanhita, 2023 - Sections 438 and 442 - DNA test request in paternity allegations - The petition seeking a DNA test was dismissed due to lack of access proof and delay in application. Legal presumption of legitimacy was upheld. (Paras 27, 39)
(B) Paternity and Access - The presumption of legitimacy protects children's rights; a strong prima facie case must exist to challenge this. Scientific methods must balance investigation with individual rights. (Paras 8, 30, 36)
(C) Fundamental Rights - Article 20(3) and Article 21 - The DNA test implicates privacy and rights against self-incrimination; courts must uphold individual rights while ensuring public interest. (Paras 22, 36)
Facts of the case:
The parties were married on 02.07.2001. After a conviction for stabbing, the petitioner sought a divorce citing adultery and later requested a DNA test for their child, arguing that he had no access during imprisonment.
Findings of Court:
The trial court rejected the DNA test request, affirming the child's legitimacy presumption and citing a lack of evidence for non-access.
Issues: The key issues included whether the DNA test was necessary for paternity proof and the impact of delay in filing.
Ratio Decidendi: The court concluded that the right to privacy and legal presumptions safeguard the minor’s identity and that without a prima facie case, the request for a DNA test was unwarranted.
Result: Criminal Revision Case dismissed.
Key Points: - The petition seeking a DNA test was dismissed due to lack of access proof and delay in application; presumption of legitimacy upheld. (!) (!) (!) (!) - Supreme Court and Kerala/ Bombay/ other precedents emphasize that DNA tests cannot be ordered as a matter of course and require a strong prima facie case showing non-access, balancing privacy and public interest. (!) (!) (!) (!) (!) (!) (!) (!) - The court found no strong prima facie case, no non-access established, and thus declined to order DNA testing; revision petition dismissed with no costs. (!) (!) (!) - The case discusses the strong presumption of legitimacy of a child born during a marriage under Section 116 BNSS 2023 and evidentiary presumptions under Section 112 of the Indian Evidence Act; applicant failed to rebut. (!) (!) (!) (!) - The judgment emphasizes privacy rights under Article 21 and self-incrimination rights under Article 20(3) in the context of DNA testing. (!) (!) (!) (!) - Supreme Court 2025 Ivan Rathinam v. Milan Joseph clarifies that DNA tests require a strong prima facie case and are not routine. (!)
What is the standard for ordering DNA testing in paternity disputes under BNSS 2023?
What are the constitutional rights considerations (privacy and self-incrimination) limiting DNA test orders in paternity cases?
What is the court's conclusion regarding the DNA test request in this case and the resulting disposition of the revision?
ORDER
1. This Criminal Revision Case has been filed, to call for the records, relating to the order dated, 04.07.2025, made in Crl.MP.No.2759 of 2023 in MC.No.13 of 2012, 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 02.07.2001, according to Hindu rites and customs. Due to matrimonial dispute arose between them, they are living separately. On knowing the illegal intimacy of the 1st Respondent with one Ramesh Babu, the Revision Petitioner stabbed the said Ramesh Babu with a knife on 30.08.2001, for which in SC.No.231 of 2003, on the file of the Additional District Sessions Judge, Tiruppur, he was convicted and sentenced to undergo 5 years rigorous imprisonment.
(b)After serving the sentence of imprisonment, the Revision Petitioner came out from jail and he had filed a Petition for divorce in HMOP.No.29 of 2012, before the Sub-Court, Palani, on the ground of adultery. The said divorce Petition was decreed exparte on 10.09.2013. In the mean time, the Respondents had filed a maintenance Petition under Section 125 of Cr.PC against the Revision Petitioner in MC.No.13 of 2012 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 Crl.MP.No.2759 of 2023, 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, on the ground that there is no material to presume that the Revision Petitioner had no access with the 1st respondent during the relevant point of time. As against the same, the Revision Petitioner herein, has filed this Criminal Revision Case.
3. This court heard Mr.T.Leninkumar, the learned counsel for the Revision Petitioner and considered his submissions and also perused the entire materials available on record. There is no representation for the Respondents.
4. The learned counsel for the Revision Petitioner has submitted that since the Revision Petitioner served the sentence of imprisonment for five years, there was no access between the Revision Petitioner and the 1st Respondent, during the relevant period of time and hence, it cannot be stated that the 2nd Respondent was born through him and that in order to prove that there was no access between them, DNA test of the 2nd Respondent is necessary and 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 Revision 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 submissions were considered by the Trial Court, while passing the impugned order.
6. The admitted facts are that the Revision Petitioner and the 1st Respondent are husband and wife, by virtue of the marriage performed between them on 02.07.2001. The judgement of conviction and sentence in SC.No.231 of 2003 was made on 14.11.2003 against the Revision Petitioner, imposing a sentence of rig
