Madhya Pradesh High Court
Tejsingh vs Rahul Singh on 8 April, 2026
1 MP-2746-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
ON THE 8 th OF APRIL, 2026
MISC. PETITION No. 2746 of 2025
TEJSINGH AND OTHERS
Versus
RAHUL SINGH AND OTHERS
Appearance:
Shri Ankit Saxena - Advocate for the petitioner.
Shri Vijay Shukla - Advocate for the respondents No.1 to 4.
Shri D.P. Sharma - P.L. for the State.
ORDER
The present petition has been filed challenging the order dated 14.02.2025 passed by the trial Court, whereby the trial Court has rejected application of the petitioners-plaintiffs under Section 151 C.P.C. for conducting DNA test of defendant No.1-Rahul on the allegation that the defendant No.2, who is the mother of Rahul possibly last cohabited with her husband namely Sajan Singh upto 12.07.1994 on which date she executed a Farkatinama (relinquishment deed), whereas the defendant No.1 has been born on 06.07.1995, which is after 12 months of execution of Farkatinama and therefore, prima facie, the defendant No.1 does not appear to be son of defendant No.2 from Sajan Singh and this can only be clarified by conducting DNA test of defendant No.1-Rahul Singh.
2. Counsel for the petitioner has vehemently argued that the trial Court Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 4/20/2026 5:22:32 PM 2 MP-2746-2025 has erred in rejecting the application for conducting DNA tests and conducting DNA tests would have been the only way to establish the paternity and legitimacy of defendant No.1 Rahul Singh. It is argued that a Farkatinama (relinquishment deed) was executed by defendant No.2 in the year 1994 mentioning that she is 30 years of age and she got married about 18 years ago with Sajan Singh and she started cohabiting with Sajan Singh about 10 years ago, but since last eight years, there has been no cohabitation and in future, she will not claim any maintenance for herself or her children. On the strength of the aforesaid Farkatinama, it is stated that there was no cohabitation between defendant No.2 and deceased Sajan Singh at least from the date of execution of this Farkatinama on 12.07.1994 and therefore, the defendant No.1 is a illegitimate child of defendant No.2, who is not born out of her wedlock with Sajan Singh.
3. Per contra, it is argued by the learned counsel for the defendant that such an application for DNA test to verify the paternity or the legitimacy of a child cannot be carried out as it is contrary to the law settled by the Hon'ble Supreme Court. It is further contended that the application under Section 151 seeking DNA test does not inspire and confidence, and it is a slip-shod application, because though in the plaint, the legitimacy and paternity of defendants No.3 & 4, who are the daughters of defendant No.2 from Sajan Singh is admitted, but in the application seeking DNA test even the paternity of defendants No.3 & 4 has been disputed. Therefore, it is clear that the averments made in the application seeking DNA test are made just for the sake of it and have not been made in responsible manner so as to inspire any Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 4/20/2026 5:22:32 PM 3 MP-2746-2025 confidence in the said pleadings made in the application under Section 151 CPC.
4. This Court has heard learned counsel for the rival parties at length and perused the record.
5. By a separate order passed today in M.P. No.755 of 2026, this Court has already held that the questioned Farkatinama (relinquishment deed) is not a divorce deed, because divorce taking place by a deed is not contemplated in Hindu law and it can be said to be a relinquishment deed, but it is neither stamped nor registered as per law and therefore, it is inadmissible in evidence for any purpose. Therefore, nothing contained in the said Farkatinama (relinquishment deed) can be pressed into service to order DNA test in the present case.
6. Even otherwise, even if the questioned Farkatinama (relinquishment deed) had to be read in evidence, then also the pleadings in the plaint clearly admit in paragraph 1 of the plaint itself that the deceased Sajan Singh had got married with defendant No. 2 prior to he entering into second marriage. It is only contended that divorce with defendant No.2 took place by executing a document and otherwise there is no divorce decree with the defendant No.2. It implies that in absence of a divorce decree with the defendant No.2, that there was no valid divorce between defendant No.2 and deceased Sajan Singh and the child born during existence of wedlock of Sajan Singh with the defendant No.2 would be born with presumption of legitimacy in terms of Section 112 of Indian Evidence Act. The only mode of demolishing that presumption is non-access between husband and wife at Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 4/20/2026 5:22:32 PM 4 MP-2746-2025 the time of conception, which is estimated to be 280 days prior to the date of birth.
7. Therefore, what is required to be proved, when there was valid subsistence of marriage between defendant No.2 and deceased Sajan Singh till the death of Sajan Singh, is that defendant No.2 and Sajan Singh had no access to each other. Mere inability of access is not to be proved, but impossibility of access has to be proved and that too, within 280 days of the date of birth of defendant No.1. Therefore, various facts need to be proved by evidence before the trial Court, which are the date of birth of defendant No.1 and the question of impossibility of access between defendant No.2 and deceased Sajan Singh on the approximate date, i.e. 280 days prior to date of birth of defendant No.1.
8. It is settled in law that to adjudge legitimacy/illegitimacy, DNA test cannot be ordered and a child is born with presumption as per Section 112 of Indian Evidence Act.
9 . In the case of adultery the matter was considered by the Hon'ble Supreme Court in the case of Dipanwita Roy v. Ronobroto Roy, (2015) 1 SCC 365. It was the case where the husband had prayed for a DNA test to establish the ground of adultery of the wife and the issue of the legitimacy of the child was only an incidental issue and it was not the main issue. The main issue which was involved in the matter was adultery of the wife. The Hon'ble Supreme Court considered Section 112 of Evidence Act and considering the legal position, the Hon'ble Apex Court held that in such cases where the ground of adultery is involved, in appropriate cases out of Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 4/20/2026 5:22:32 PM 5 MP-2746-2025 such cases, DNA test can be ordered. The Hon'ble Supreme Court held as under:-
"9. The learned counsel for the appellant wife, in the first instance, invited our attention to Section 112 of the Evidence Act. The same is being extracted hereunder:
"112.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 son 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."
Based on the aforesaid provision, the learned counsel for the appellant wife drew our attention to decision rendered by the Privy Council in Karapaya Servai v. Mayandi [(1934) 39 LW 244 : AIR 1934 PC 49] , wherein it was held, that the word "access" used in Section 112 of the Evidence Act, connoted only the existence of an opportunity for marital intercourse, and in case such an opportunity was shown to have existed during the subsistence of a valid marriage, the provision by a fiction of law, accepted the same as conclusive proof of the fact that the child born during the subsistence of the valid marriage, was a legitimate child. It was the submission of the learned counsel for the appellant wife, that the determination of the Privy Council in Karapaya Servai case [(1934) 39 LW 244 : AIR 1934 PC 49] was approved by this Court in Chilukuri Venkateswarlu v. Chilukuri Venkatanarayana [(1953) 2 SCC 627 : AIR 1954 SC 176 : 1954 SCR 424] .
13. All the judgments relied upon by the learned counsel for the appellant were on the pointed subject of the legitimacy of the child born during the subsistence of a valid marriage. The question that arises for consideration in the present appeal pertains to the alleged infidelity of the appellant wife. It is not the husband's desire to prove the legitimacy or illegitimacy of the child born to the appellant. The purpose of the respondent is to establish the ingredients of Section 13(1)(ii) of the Hindu Marriage Act, 1955, namely, that after the solemnisation of the marriage of the appellant with the respondent, the appellant had voluntarily engaged in sexual intercourse with a person other than the respondent. There can be no doubt that the prayer made by the respondent for conducting a DNA test of the appellant's son as also of himself was aimed at the alleged Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 4/20/2026 5:22:32 PM 6 MP-2746-2025 adulterous behaviour of the appellant. In the determination of the issue in hand, undoubtedly, the issue of legitimacy will also be incidentally involved. Therefore, insofar as the present controversy is concerned, Section 112 of the Evidence Act would not strictly come into play.
16. It is borne from the decisions rendered by this Court in Bhabani Prasad Jena [Bhabani Prasad Jena v. Orissa State Commission for Women, (2010) 8 SCC 633 : (2010) 3 SCC (Civ) 501 : (2010) 3 SCC (Cri) 1053] and Nandlal Wasudeo Badwaik [Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik, (2014) 2 SCC 576 : (2014) 2 SCC (Civ) 145 : (2014) 4 SCC (Cri) 65] that depending on the facts and circumstances of the case, it would be permissible for a court to direct the holding of a DNA examination to determine the veracity of the allegation(s) which constitute one of the grounds, on which the party concerned would either succeed or lose. There can be no dispute, that if the direction to hold such a test can be avoided, it should be so avoided. The reason, as already recorded in various judgments by this Court, is that the legitimacy of a child should not be put to peril.
17. The question that has to be answered in this case is in respect of the alleged infidelity of the appellant wife. The respondent husband has made clear and categorical assertions in the petition filed by him under Section 13 of the Hindu Marriage Act, alleging infidelity. He has gone to the extent of naming the person who was the father of the male child born to the appellant wife. It is in the process of substantiating his allegation of infidelity that the respondent husband had made an application before the Family Court for conducting a DNA test which would establish whether or not he had fathered the male child born to the appellant wife. The respondent feels that it is only possible for him to substantiate the allegations levelled by him (of the appellant wife's infidelity) through a DNA test. We agree with him. In our view, but for the DNA test, it would be impossible for the respondent husband to establish and confirm the assertions made in the pleadings. We are therefore satisfied that the direction issued by the High Court, as has been extracted hereinabove, was fully justified. DNA testing is the most legitimate and scientifically perfect means, which the husband could use, to establish his assertion of infidelity. This should simultaneously be taken as the most authentic, rightful and correct means also with the wife, for her to rebut the assertions made by the respondent husband, and to establish that she had not been unfaithful, adulterous or disloyal. If the appellant wife is right, she shall be proved to be so.
18. We would, however, while upholding the order passed by the High Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 4/20/2026 5:22:32 PM 7 MP-2746-2025 Court, consider it just and appropriate to record a caveat, giving the appellant wife liberty to comply with or disregard the order passed by the High Court, requiring the holding of the DNA test. In case, she accepts the direction issued by the High Court, the DNA test will determine conclusively the veracity of accusation levelled by the respondent husband against her. In case, she declines to comply with the direction issued by the High Court, the allegation would be determined by the court concerned by drawing a presumption of the nature contemplated in Section 114 of the Evidence Act, especially, in terms of Illustration (h) thereof. Section 114 as also Illustration
(h), referred to above, are being extracted hereunder:
"114.Court may presume existence of certain facts.--The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case."
"Illustration (h)--that if a man refuses to answer a question which he is not compelled to answer by law, the answer, if given, would be unfavourable to him;"
This course has been adopted to preserve the right of individual privacy to the extent possible. Of course, without sacrificing the cause of justice. By adopting the above course, the issue of infidelity alone would be determined, without expressly disturbing the presumption contemplated under Section 112 of the Evidence Act. Even though, as already stated above, undoubtedly the issue of legitimacy would also be incidentally involved.
10. The issue was subsequently considered in judgment in the case of Aparna Ajinkya Firodia (2024 (7) SCC 773) . The judgment of the case of Dipanwita Roy (supra) has been considered in the case of Aparna Ajinkya Firodia (Supra) and in Para-10 it has been held that the said judgment is in view of the fact that it was a divorce petition on the ground of adultery of the wife and the necessary facts had been pleaded so as to justify direction to conduct a DNA Test. The Supreme Court in Aparna Ajinkya Firodia (Supra) has held that inferences are to be drawn by the Court on consideration of facts and circumstances of each individual case and Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 4/20/2026 5:22:32 PM 8 MP-2746-2025 therefore the judgment in case of Dipanwita Roy (supra) is to be read in the aforesaid context.
11. Subsequently, the Hon'ble Apex Court in Ivan Rathinam v. Milan Joseph, 2025 SCC OnLine SC 175 has again considered the law on the subject. The Hon'ble Supreme Court has laid great stress on 'eminent need' and 'balancing the interests'. The Hon'ble Supreme Court considered that in what manner the presumption under Section 112 of Evidence Act can be rebutted. The Hon'ble Supreme Court held as under:-
28. The language of the provision makes it abundantly clear that there exists a strong presumption that the husband is the father of the child borne by his wife during the subsistence of their marriage.
This section provides that conclusive proof of legitimacy is equivalent to paternity. The object of this principle is to prevent any unwarranted enquiry into the parentage of a child. Since the presumption is in favour of legitimacy, the burden is cast upon the person who asserts 'illegitimacy' to prove it only through 'non- access.'
29. It is well-established that access and non-access under Section 112 do not require a party to prove beyond reasonable doubt that they had or did not have sexual intercourse at the time the child could have been begotten. 'Access' merely refers to the possibility of an opportunity for marital relations.To put it more simply, in such a scenario, while parties may be on non-speaking terms, engaging in extra-marital affairs, or residing in different houses in the same village, it does not necessarily preclude the possibility of the spouses having an opportunity to engage in marital relations. Non- access means the impossibility, not merely inability, of the spouses to have marital relations with each other. For a person to rebut the presumption of legitimacy, they must first assert non- access which, in turn, must be substantiated by evidence.
35. In the peculiar circumstances of this case, this Court must undertake an exercise to 'balance the interests' of the parties involved and decide whether there is an 'eminent need' for a DNA test. This pertains not simply to the interests of the child, i.e. the Respondent, but also to the interests of the Appellant.
Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 4/20/2026 5:22:32 PM9 MP-2746-2025
46. When dealing with the eminent need for a DNA test to prove paternity, this Court balances the interests of those involved and must consider whether it is possible to reach the truth without the use of such a test.
47. First and foremost, the courts must, therefore, consider the existing evidence to assess the presumption of legitimacy. If that evidence is insufficient to come to a finding, only then should the court consider ordering a DNA test. Once the insufficiency of evidence is established, the court must consider whether ordering a DNA test is in the best interests of the parties involved and must ensure that it does not cause undue harm to the parties. There are thus, two blockades to ordering a DNA test : (i) insufficiency of evidence; and (ii) a positive finding regarding the balance of interests.
12. The Hon'ble Supreme Court went on to consider the judgment in the case of Dipanwita Roy (supra) in Para- 50 and held that those proceedings were not proceedings for legitimacy of the child but divorce petition on the ground of adultery. The Hon'ble Apex Court held as under:-
" 5 0 . In Dipanwita Roy v. Ronobroto Roy (supra), this Court directed the child therein to undergo a DNA test. However, this direction was not given in furtherance of a declaration as to the legitimacy of the child. On the contrary, the proceedings therein were regarding a prayer for divorce based on adultery. The DNA test was to be conducted to prove that the wife was adulterous for the sake of obtaining a divorce. The appellant therein did not desire to prove the illegitimacy of the child; it was merely incidental. This Court explicitly stated that though the question of legitimacy was incidentally involved, the issue of infidelity alone would be determined by the DNA test, without expressly disturbing the presumption under Section 112 of the Indian Evidence Act, 1872."
13. The Hon'ble Supreme Court in the very recent case of R. Rajendran v. Kamar Nisha, 2025 SCC OnLine SC 2372 has considered the law on the subject and considered the judgment in the Dipanwita Roy (supra) and also Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 4/20/2026 5:22:32 PM 10 MP-2746-2025 how in usual cases the matter is to be examined because that particular case was the case of cheating by one of the parties to the marriage. The Hon'ble Apex Court considered the judgment in the case of Dipanwita Roy (supra) in the following manner :
41. In Dipanwita Roy (supra), this Court directed a DNA test to be conducted on the child. However, the direction was not issued for the purpose of determining the legitimacy of the child. The proceedings were in the context of a petition for divorce on the ground of adultery. The DNA test was sought to establish the wife's infidelity in order to obtain a decree of divorce. The appellant's objective was not to prove that the child was illegitimate, that question arose only incidentally. This Court expressly observed that while the issue of legitimacy was incidentally involved, the DNA test would determine solely the question of infidelity, and would not disturb the presumption under Section 112 of the Evidence Act.
42. In sharp contrast, respondent No. 1 in the present case seeks a direction for DNA testing precisely to dislodge the statutory presumption of legitimacy that safeguards the child, and to establish the appellant as the biological father so as to sustain the criminal charges of cheating and harassment. The decision in Dipanwita Roy (supra) is, therefore, inapplicable to the facts of the present case.
14. From a perusal of the aforesaid judgments, it is clear that in case where necessary pleadings are there and no declaration is sought regarding illegitimacy of the child and the issue only relates to adultery of the wife then in appropriate cases, DNA test can be ordered, and if there are sufficient pleadings of non-access.
15. Therefore, this Court does not find any error of law or jurisdiction in the impugned order passed by the trial Court in refusing the order DNA test, which is being sought only to adjudge the paternity and legitimacy of Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 4/20/2026 5:22:32 PM 11 MP-2746-2025 defendant No.1.
16. Consequently, the petition is dismissed, leaving it open for the petitioners to rebut the presumption under Section 112 of Indian Evidence Act by leading appropriate evidence before the trial Court.
(VIVEK JAIN) JUDGE rj Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 4/20/2026 5:22:32 PM