IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 08.12.2025 CORAM THE HONOURABLE MR.JUSTICE S.SOUNTHAR and C.M.P.Nos.28079 and 28081 of 2025 Dhinakaran ... Petitioner vs.

Dhinaselvan ... Respondent PRAYER: Civil Revision Petition is filed under Article 227 of Constitution of India, to set aside the order dated 03.11.2025 passed in I.A.No.1442 of 2023 in O.S.No.212 of 2021 one the file of the Additional District Munsif Court, Gingee.

For Petitioner : Mr.R.Venkatraman for M/s.Tatva Legal Chennai For Respondent :Mr.R.Sivanathan

O R D E R

This Civil Revision Petition is filed challenging the order passed by the trial Court ordering DNA test.

2. The plaintiff/respondent herein filed a suit seeking declaration that he is a son of petitioner/defendant and he was born on 31.10.1978 out of the wedlock between the defendant and Selvi Ammal @ Kalaiselvi.

3. It is the case of the respondent that the defendant married Selvi Ammal @ Kalaiselvi and out of said wedlock, the plaintiff/respondent was born on 31.10.1978 and the various documents filed along with the plaint would show that the plaintiff was born to the defendant.

4. The petitioner herein filed a written statement denying the factum of marriage and contested the suit. The trial in the suit has not been commenced and the suit was posted for framing of issues. At this stage, the application has been filed by the respondent seeking DNA test involving the respondent/plaintiff and the petitioner/defendant. The petitioner filed a counter affidavit on the ground that first of all, the marriage between the petitioner and the above said Selvi Ammal @ Kalaiselvi has to be proved by the respondent and if the said fact was proved, automatically the respondent is entitled to legal presumption and hence the application for DNA test is unnecessary.

5. The trial Court based on the documents filed along with the plaint came to the conclusion that the respondent established the prima facie case and ordered DNA test. Aggrieved by the same, the defendant has come before this Court.

6. The learned counsel appearing for the petitioner by relying on the judgment of the Apex Court in Ivan Rathinam Vs. Milan Joseph reported in 2025 SCC Online SC 175 would submit that need for DNA test would arise only when the evidence available on record is insufficient to come to a conclusion with regard to the legitimacy and paternity.

7. In nutshell, he submitted that if the factum of marriage between the petitioner and above mentioned Selvi Ammal @ Kalaiselvi is proved by the respondent by leading evidence at the time of the trial, he is entitled to take benefit of the presumption under Section 112 of the Indian Evidence Act (Section 116 of Bharatiya Sakshya Adhiniyam Act) and therefore, the petition is a prematured one.

8. The learned counsel appearing for the respondent would submit that DNA test will conclusively prove the dispute, with regard to the paternity and therefore, the respondent shall be given an opportunity to take advantage of the scientific advancement. Section 116 of Bharatiya Sakshya Adhiniyam, which is equivalent to Section 112 of Indian Evidence Act, reads as follows:

116. Birth during marriage, conclusive proof of legitimacy.—The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate child of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.

9. A perusal of the above said provision would make it clear that if the birth of the child took place during continuance of a valid marriage between the man and woman or within 280 days, after the dissolution of said marriage and the mother is unmarried, there shall be a conclusive presumption that the child born to them is a legitimate child.

10. In the case on hand, the respondent/plaint