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2025 Supreme(Online)(Mad) 62195
IN THE HIGH COURT OF JUDICATURE AT MADRAS
SHAMIM AHMED, J
Titus – Appellant
Versus
Golda Glory – Respondent
Crl.RC(MD)No.914 of 2025
For the Appellants/Petitioners: Mr. V.Nirmal Kumar
For the Respondents: Ms.M.R.Preethi
DNA testing in paternity disputes cannot be ordered without a strong prima facie case proving non-access, due to privacy rights and presumption of legitimacy.
Headnote:(A) Bharatiya Nagarik Suraksha Sanhita, 2023 - Sections 438 and 442 - DNA testing in paternity disputes - The court found no merit in the Revision Petitioner's claims for a DNA test to prove the illegitimacy of the minor, citing delay and lack of evidence to support non-access. Affirmation of the presumption of legitimacy under Section 116 necessitates substantial proof to disprove access. (Paras 8, 28, 30, 41, 44)
(B) Fundamental Rights - Privacy implications - The court emphasized the tension between efficient investigation and preservation of individual rights, particularly in matters involving DNA testing, which infringes upon privacy. Scientific techniques must not overshadow personal rights. (Paras 10, 39)
Facts of the case:
The Revision Petitioner alleged that the marriage with the 1st Respondent was not consummated and questioned the legitimacy of their child born shortly thereafter. Legal proceedings for maintenance ensued, leading to disputes over paternity testing.
Findings of Court:
The lack of evidence for non-access and the timing of the DNA application undermined the Revision Petitioner’s claims, affirming the legitimacy presumption of children born within marriage.
Issues: The legal questions included the legitimacy of the 2nd Respondent, the necessity of DNA testing, and the implications on fundamental rights.
Ratio Decidendi: The court held that a strong prima facie case is required for DNA testing in parental disputes; mere allegations do not suffice, especially in light of privacy concerns.
Result: The Criminal Revision Case was dismissed.
| Table of Content |
|---|
| 1. overview of the case context and background. (Para 1 , 2) |
| 2. court's analysis of legal rights and evidentiary standards. (Para 3 , 6 , 8 , 9 , 10 , 11 , 12 , 15) |
| 3. arguments regarding the need for dna test. (Para 4 , 5) |
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.663 of 2024, by the Judicial Magistrate, Lalgudi 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)It is alleged by the Revision Petitioner/Husband that though the marriage between him and the 1st Respondent/Wife was solemnized on 19.06.2018, according to Christian Rites and Customs, the marriage between them was not consummated and that the 1st Respondent was having illegal relationship with one Sivastephen and that to his shock and surprise, the 1st Respondent stated that only on compulsion by her parents, she married the Revision Petitioner. It is also stated by the Petitioner that when on 16.08.2018, the Revision Petitioner took the 1st Respondent to hospital for hair fall treatment, he came to know that the 1st Respondent was pregnant and that when the Revision Petitioner questioned her about the same, she stated that the child is not the Revision Petitioner's.
(b)It is further stated by the Revision Petitioner that on 23.08.2018, the mother and uncle of the 1st Respondent took the 1st Respondent, locked the house and gave the keys to the brother of the Revision Petitioner and that on 26.08.2018, the uncle of the 1st Respondent informed that the 1st Respondent was not willing to live with him and requested to give divorce and that the minor male child/the 2nd Respondent was born within nine months from the date of their marriage, i.e. on 28.03.2019 and hence, he is not his son.
(c)The 1st Respondent has filed a maintenance Petition, under Section125 of Cr.PC, against the Revision Petitioner in MC.No.11 of 2021 on 01.07.2021, before the Judicial Magistrate, Lalgudi 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.663 of 2024, on 19.03.2024, seeking for DNA test to prove that the 2nd Respondent was not born through him and the 1st respondent/wife had filed a counter in the said application, seeking for DNA Test.
(d)By the impugned order, the Trial Court had dismissed the said Petition/Application, seeking DNA Test, on the grounds that the Revision Petitioner and the 1st Respondent were living as husband and wife from the date of their marriage and that the Revision Petitioner has failed to prove by furnishing valid evidence 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 the present Criminal Revision Case on 21.07.2025.
3. This court heard Mr.V.Nirmal Kumar, the learned counsel for the Revision Petitioner and Ms.M.R.Preethi, the learned counsel for the Respondents and considered their submissions and also perused the entire materials available on record.
4. The learned counsel for the Revision Petitioner has submitted that when the marriage itself was not consummated and there was no access between the Revision Petitioner and the 1st Respondent, during the relevant period of time, 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 both the Revision Petitioner and the Respondents is necessary and thus, an application, seeking DNA test to prove the paternity 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 re
