Madhya Pradesh High Court refuses to allow DNA test in property dispute

The Gwalior Bench of Madhya Pradesh High Court recently dismissed a writ petition against the lower court's decision rejecting petitioner's plea for a paternity test of her and her husband's alleged daughter in an ongoing partition suit. The petitioner had claimed that the alleged daughter was actually child of one of the opposite parties.

The bench of Justice Gurpal Singh Ahluwalia observed, "Directions for conducting the DNA test is also violative of privacy of an individual".

Court referred to the case of Ashok Kumar Vs. Raj Gupta and Others (2022) wherein the Supreme Court held that "in circumstances where other evidence is available to prove or dispute the relationship, the court should ordinarily refrain from ordering blood tests. This is because such tests impinge upon the right of privacy of an individual and could also have major societal repercussions. Indian law leans towards legitimacy and frowns upon bastardy. The presumption in law of legitimacy of a child cannot be lightly repelled."

A civil suit for partition was filed by petitioner's husband, however, he died during the pendency of the suit. Thereafter, the petitioner filed an application for bringing her as her husband's legal representative on record, however, an objection was raised by the opposite parties claiming that the petitioner had not impleaded her and her husband's daughter in the application for legal representative on record.

This claim was refuted by the petitioner stating that she had never given birth to any child, and the alleged daughter was actually child of one of the opposite parties.

Therefore, the petitioner moved an application under Order 26 Rule 10 (A) CPC read with Section 45 of the Indian Evidence Act seeking a paternity test of the alleged daughter to ascertain that she is not her and her husband's daughter. However, the lower court rejected the application.

Challenging the order passed by the lower court, it was argued by the petitioner's counsel that where the question of property is involved and the paternity of the person is also in dispute, then a direction for a DNA test may be issued.

However, the Court placed reliance upon the ruling of the Apex Court in Banarsi Dass vs. Teeku Dutta (Mrs.) & Another (2005) that the courts in India cannot order blood test as a matter of course.

The Top court had opined that "there must be a strong prima-facie case to the effect that the husband had no access in order to dispel the presumption arising under Section 112 of Evidence Act and the court must carefully examine as to what would be the consequence of ordering the blood test i.e. whether it will have the effect of branding a child as a illegitimate child or mother as an unchaste woman".

Referring to Section 112 of the Indian Evidence Act which provides that 'any person born during a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, shall be conclusive proof that he/she is a legitimate child of that man, Court said that it was not petitioner's case the alleged daughter was born prior to her marriage with her husband.

"The presumption as provided under Section 112 of Evidence Act is a rebuttable presumption and the petitioner will get every opportunity to rebut the said presumption in the trial," Court, however, opined.

Therefore, in light of the rulings of the top court, the High Court held that the Trial Court did not commit any jurisdictional error by rejecting the application for compelling the alleged daughter to undergo a DNA test and rejected petitioner's plea.

Case Title: Smt. Urmila Singh v. Saudan Singh and Ors