Chattisgarh High Court
Devraj Toppo vs Smt. Pratima Toppo on 23 April, 2025
Digitally signed by V
PADMAVATHI
Date: 2025.04.30
11:39:45 +0530
2025:CGHC:19067
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRR No. 520 of 2025
Devraj Toppo S/o Mahanguram Aged About 33 Years Caste - Uraon Occupation
Constable Gd 710, R/o Village Dipadih Kudhur, Shankargarh, District Balrampur
Ramanujganj, C.G. Current Address Camp Kudhur, District Kondagaon Chhattisgarh.
... Applicants
versus
1 - Smt. Pratima Toppo W/o Devraj Toppo Aged About 28 Years Caste - Uraon, R/o
D.C. Road Mahavir Ward No. 19 Ambikapur, District Surguja (C.G.), Current Address
Village Dipadih, Khurd P.S. Shankargarh District Balrampur Ramanujganj
Chhattisgarh.
2 - Ku. Bhumika Toppo D/o Devraj Toppo Aged About 6 Years Through The Natural
Guradian Mother (Res. No. 1), R/o D.C. Road Mahavir Ward No. 19 Ambikapur,
District Surguja (C.G.), Current Address Village Dipadih, Khurd P.S. Shankargarh
District Balrampur Ramanujganj Chhattisgarh. ... Respondents
(Cause title is taken from the CIS)
------------------------------------------------------------------------------------------------------------------
For Applicant : Shri Ashok Kumar Shukla, Advocate For Respondents : None appears
——————————————————————————————————————
Hon’ble Shri Justice Ravindra Kumar Agrawal
Order on Board
23.04.2025
1. The applicant has filed the instant Criminal Revision under Section
438 read with Section 442 of the Bhartiya Nagarik Suraksha Sanhita,
2023 (BNSS), against the order dated 25-02-2025 passed by the learned
Family Court, Ambikapur, District Surguja (C.G.) in Miscellaneous
Crr 520 of 2025
2
Criminal Case No. 126 of 2023, whereby the learned family court has
dismissed the application of the applicant/husband for DNA test of
respondent No. 2.
2. The facts of the case in brief are that respondent No.1 is wife of the
applicant. Their marriage was solemnized on 22-05-2017 as per their
rights and rituals. After the marriage, respondent No. 1 started residing in
her matrimonial house at village Deepadih Khurd. Out of their wedlock,
respondent No. 2 was born on 31-05-2018. For about two years of their
marriage, their relationship was normal, and both of them were living
happily. After two years of their marriage, the applicant started avoiding
the company of respondent No.1, and has completely neglected the
respondents since 2020. He has gone to his place of posting and
stopped coming to his native place where the respondents are residing,
and is not paying any maintenance to them. Respondents completely
became destitutes, and facing hardship for their livelihood. The
respondents had also gone to Kondagaon, where the applicant is posted,
but he refused to meet them. The applicant is employed at the
Chhattisgarh Police service and earns about Rs. 60,000/- per month as
his salary, whereas the respondent No. 1/wife has no source of income.
3. On 05-07-2023, the respondents have filed their application for
grant of maintenance of Rs. 30,000/- per month from the applicant under
Section 125 of Cr.P.C. before the learned Family Court, Surguja (place
Ambikapur). The application of respondents and child was replied by the
Crr 520 of 2025
3
applicant, and he denied his liability. In the reply, the applicant/husband
denied that he is the father of respondent No. 2 and has submitted that
respondent No.1 is having suspicious character and when he had gone
to his duty at Kondagaon, she developed physical relation with his father
(father-in-law of the respondent No. 1), and the child is born from him and
not from the present applicant/husband. The relationship between the
respondent No. 1 and her father-in-law is known to every person in the
vicinity. Since respondent No. 1 is residing with her father-in-law as his
wife, the applicant/husband is not liable to pay any maintenance to them.
4. The learned family court framed issues and proceeded for recording
evidence of the parties. On 20-09-2024, the respondent No. 1/wife and
her witness Shivlal (A.W. 2) were examined and their evidence was
recorded. On 08-01-2025, the applicant/husband has been examined and
his evidence has been recorded.
5. On 20-01-2025, applicant/husband has filed an application for
conducting the DNA test of the respondents. He averred in his application
that respondent No. 1 is having an illicit relationship with her father-in-
law, and respondent No. 2 has born from her father-in-law and not from
him; he is HIV-positive patient and, therefore, an order for DNA test may
be passed. The learned family court, after hearing the parties, passed the
order on 25-02-2025 and dismissed the application by holding that
routinely, the DNA test cannot be ordered, and it can be ordered only in
exceptional cases. It is also for consideration of the learned family court
Crr 520 of 2025
4
that the DNA of the applicant, and his father would be the same.
Therefore, even if, it is ordered for DNA test of applicant’s father, the
report would be the same with respect to either the applicant or his father.
The said order dated 25-02-2025 is under challenge in the present
petition.
6. Learned counsel for the applicant would submit that the applicant
denied the paternity of the child/respondent No. 2, that he was born from
the father-in-law of his mother. Respondent No.1 is having an illicit
relationship with her father-in-law, and is residing with him. The
applicant/husband had gone to his place of posting after 2 days of his
marriage and thereafter, respondent No.1 developed relationship with her
father-in-law, and gave birth to respondent No. 2. The applicant/husband
was not having access to presume the legitimacy of respondent No. 2 as
provided under Section 112 of the Indian Evidence Act, 1872. The
applicant/husband specifically denied the paternity of the child. DNA test
is the accurate scientific method to determine paternity of the child in the
present era, and there would be no prejudice to anyone, if such an order
is passed for DNA test to do complete justice in the case.
7. Learned counsel for the applicant would rely upon the judgment
passed by Hon’ble Supreme Court in case of Nandlal Vasudeo Badwaik
v. Lata Nandlal Badwaik and Another, 2014 (2) SCC 576, and submits
that the revision may be allowed and the parties may be directed to
conduct the DNA test.
Crr 520 of 2025
5
8. I have heard learned counsel for the applicant and perused the
documents annexed with the petition.
9. In the matter of Bhabani Prasad Jena v. Orissa State
Commission for Women, 2010 (8) SCC 633, the Hon’ble Supreme
Court has emphasized that a direction to use DNA test to determine the
paternity of a child is an extremely delicate and sensitive matter.
Therefore, such test may be directed to be conducted only when the
same is eminently needed. DNA test in a matter relating to the paternity
of a child should not be directed by the court as a matter of course, or in
a routine manner, whenever such a request is made.
10. Recently, the Hon’ble Apex Court, while dealing with the issue of
necessity for DNA test in a matrimonial dispute in case of Aparna
Ajinkya Firodia v. Ajinkya Arun Firodia, 2024 (7) SCC 773, has
framed the issue for consideration in para 15.1 of its judgment, which is
reproduced hereunder for ready reference:
“15.1 (I) Whether, the family court Pune and the High
Court of Judicature at Bombay, have rightly appreciated
Section 112 of the Evidence Act in directing that a DNA
test of Master Arjun be conducted ?”
11. While dealing with the case of Aparna Ajinkya (supra), the Hon’ble
Supreme Court has considered the scope of Section 112 of the Evidence
Act, 1872, ‘access’ and ‘non-access’, and also the proof of legitimacy of
Crr 520 of 2025
6
the child during subsistence of marriage. In para 18 to 25, of the
judgment, the Hon’ble Supreme Court has held that:-
“18. The principle underlying Section 112 is to prevent an unwarranted
enquiry as to the paternity of the child whose parents, at the relevant time
had “access” to each other. In other words, once a marriage is held to be
valid, there is a strong presumption as to the children born from that
wedlock as being legitimate. This presumption can be rebutted only by
strong, clear and conclusive evidence to the contrary. Section 112 of the
Evidence Act is based on the presumption of public morality and public
policy vide Sham Lal vs. Sanjeev Kumar, (2009) 12 SCC 454. Since
Section 112 creates a presumption of legitimacy that a child born during
the subsistence of a marriage is deemed to be legitimate, a burden is cast
on the person who questions the legitimacy of the child.
19. Further, “access” or “non-access” does not mean actual co- habitation
but means the “existence” or “non-existence” of opportunities for sexual
relationship. Section 112 refers to point of time of birth as the crucial aspect
and not to the time of conception. The time of conception is relevant only to
see whether the husband had or did not have access to the wife. Thus,
birth during the continuance of marriage is “conclusive proof” of legitimacy
unless “non-access” of the party who questions the paternity of the child at
the time the child could have been begotten is proved by the said party.
20. It is necessary in this context to note what is “conclusive proof” with
reference to the proof of the legitimacy of the child, as stated in Section
112 of the Evidence Act. As to the meaning of “conclusive proof” reference
may be made to Section 4 of the Evidence Act, which provides that when
one fact is declared to be conclusive proof of another, proof of one fact,
would automatically render the other fact as proved, unless contra
Crr 520 of 20257
evidence is led for the purpose of disproving the fact so proved. A conjoint
reading of Section 112 of the Evidence Act, with the definition of
“conclusive proof” under Section 4 thereof, makes it amply clear that a
child proved to be born during a valid marriage should be deemed to be a
legitimate child except where it is shown that the parties to the marriage
had no access to each other at any time when the child could have been
begotten or within 280 days after the dissolution of the marriage and the
mother remains unmarried, that fact is the conclusive proof that the child is
the legitimate son of the man. Operation of the conclusive presumption can
be avoided by proving non-access at the relevant time.
21. The latter part of Section 112 of the Evidence Act indicates that if a
person is able to establish that the parties to the marriage had no access to
each other at any time when the child could have been begotten, the
legitimacy of such child can be denied. That is, it must be proved by strong
and cogent evidence that access between them was impossible on account
of serious illness or impotency or that there was no chance of sexual
relationship between the parties during the period when the child must
have been begotten. Thus, unless the absence of access is established,
the presumption of legitimacy cannot be displaced.
22. Thus, where the husband and wife have co-habited together, and no
impotency is proved, the child born from their wedlock is conclusively
presumed to be legitimate, even if the wife is shown to have been, at the
same time, guilty of infidelity. The fact that a woman is living in adultery
would not by itself be sufficient to repel the conclusive presumption in
favour of the legitimacy of a child. Therefore, shreds of evidence to the
effect that the husband did not have intercourse with the wife at the period
of conception, can only point to the illegitimacy of a child born in wedlock,
but it would not uproot the presumption of legitimacy under Section 112.
Crr 520 of 2025
8
23. The presumption under Section 112 can be drawn only if the child is
born during the continuance of a valid marriage and not otherwise.
“Access” or “non-access” must be in the context of sexual intercourse that
is, in the sexual sense and therefore, in that narrow sense. Access may for
instance, be impossible not only when the husband is away during the
period when the child could have been begotten or owing to impotency or
incompetency due to various reasons or the passage of time since the
death of the husband. Thus, even though the husband may be cohabiting,
there may be non-access between the husband and the wife. One of the
instances of non-access despite co-habitation is the impotency of the
husband. If the husband has had access, adultery on the wife’s part will
not justify a finding of illegitimacy.
24. Thus, “non-access” has to be proved as a fact in issue and the same
could be established by direct and circumstantial evidence of an
unambiguous character. Thus, there could be “non-access” between the
husband and wife despite co-habitation. Conversely, even in the absence
of actual co-habitation, there could be access.
25. Section 112 was enacted at a time when modern scientific tests such
as DNA tests, as well as Ribonucleic acid tests (‘RNA’, for short), were not
in contemplation of the legislature. However, even the result of a genuine
DNA test cannot escape from the conclusiveness of the presumption
under Section 112 of the Evidence Act. If a husband and wife were living
together during the time of conception but the DNA test reveals that the
child was not born to the husband, the conclusiveness in law would remain
irrebuttable. What would be proved, is adultery on the part of the wife,
however, the legitimacy of the child would still be conclusive in law. In
other words, the conclusive presumption of paternity of a child born during
the subsistence of a valid marriage is that the child is that of the husband
Crr 520 of 20259
and it cannot be rebutted by a mere DNA test report. What is necessary to
rebut is the proof of non-access at the time when the child could have been
begotten, that is, at the time of its conception vide Kamti Devi vs. Poshi
Ram, (2001) 5 SCC 311.”
12. Answering the aforesaid issue, the Hon’ble Supreme Court has
concluded in para 43 of its judgment that:
“Having regard to the aforesaid discussion, the following principles could
be culled out as to the circumstances under which a DNA test of a minor
child may be directed to be conducted:
i. That a DNA test of a minor child is not to be ordered routinely, in
matrimonial disputes. Proof by way of DNA profiling is to be directed in
matrimonial disputes involving allegations of infidelity, only in matters
where there is no other mode of proving such assertions.
ii. DNA tests of children born during the subsistence of a valid marriage
may be directed, only when there is sufficient prima-facie material to
dislodge the presumption under Section 112 of the Evidence Act. Further,
if no plea has been raised as to non-access, in order to rebut the
presumption under Section 112 of the Evidence Act, a DNA test may not
be directed.
iii. A Court would not be justified in mechanically directing a DNA test of
a child, in a case where the paternity of a child is not directly in issue, but
is merely collateral to the proceeding.
iv. Merely because either of the parties have disputed a factum of
paternity, it does not mean that the Court should direct DNA test or such
other test to resolve the controversy. The parties should be directed to
lead evidence to prove or disprove the factum of paternity and only if the
Crr 520 of 202510
Court finds it impossible to draw an inference based on such evidence, or
the controversy in issue cannot be resolved without DNA test, it may
direct DNA test and not otherwise. In other words, only in exceptional and
deserving cases, where such a test becomes indispensable to resolve
the controversy the Court can direct such test.
v. While directing DNA tests as a means to prove adultery, the Court is
to be mindful of the consequences thereof on the children born out of
adultery, including inheritance-related consequences, social stigma, etc.”
13. Further in para 102, the Hon’ble Supreme Court has held that:-
“Whose rights, are to tilt the balance in the scales of justice?
102. As rightly contended by Shri Huzefa Ahmadi, learned senior counsel
for the appellant, the question as to whether a DNA test should be
permitted on the child, is to be analysed through the prism of the child
and not through the prism of the parents. The child cannot be used as a
pawn to show that the mother of the child was living in adultery. It is
always open to the respondent- husband to prove by other evidence, the
adulterous conduct of the wife, but the child’s right to identity should not
be allowed to be sacrificed.”
14. Reverting to the facts of the present case, the respondents have
filed the application for grant of maintenance amount, saying that they
are destitutes, and neglected by the applicant/husband, who is not
providing any amount to them for their maintenance. The applicant
denied the paternity of the child, and averred that she was born from his
father (father-in-law of respondent No. 1/wife) as she developed physical
relation with him, and resided in his house as his wife, and the
Crr 520 of 2025
11
child/respondent No. 2 was born from them. The applicant/husband has
got himself examined before the learned family court on 08-01-2025. He
admitted in his evidence that he has been in service since 2014. He has
not made any complaint to anyone that he performed the marriage with
respondent No. 1 under pressure. Although from para 17 of his cross-
examination, he denied that he performed 2nd marriage with any other
lady, but he subsequently admitted that in the document Ex. D-1, the
name of that lady is mentioned as the “Caretaker”.
15. The applicant/husband virtually denied access to his
wife/respondent and submitted that after two days of his marriage, he left
his house and went back to his duty and has never returned to his house
thereafter. He stated in his deposition that respondent No. 1 has
developed an illicit relationship with his father and is residing with him as
his wife. The child/ respondent No. 2 was born from his father and not
from him. Another aspect of the matter is that the father-in-law of the
respondent No. 1 is not the party to the proceeding, and he cannot be
directed to undergo DNA test.
16. Merely because either party disputed the paternity of the child, it
does not mean that the DNA test should be conducted to resolve the
dispute between the parties. The parties may lead other evidence to
prove the factum of paternity and ‘access’ or ‘non-access’ and it is only
when the court finds it impossible to draw an inference based on such
evidence that the controversy cannot be resolved with DNA test, it may
Crr 520 of 2025
12
direct for the same, and such order should not be passed mechanically.
As has been held by Hon’ble Supreme Court that in order to rebut the
presumption under Section 112 of the Evidence Act, a DNA test may not
be directed.
17. The judgment of Nandlal Wasudeo Badwaik case (supra) cited by
the learned counsel for the applicant has already been considered by the
Hon’ble Supreme Court in the matter of Aparna Ajinkya case (supra),
and therefore, no benefit can be extended to the applicant on the basis of
that judgment cited by him.
18. For the foregoing consideration, this court does not find any
sufficient ground to allow the petition and to grant relief to the applicant.
Accordingly, the Criminal Revision filed by the applicant is dismissed.
19. However, this shall not preclude the applicant/husband to prove his
defence by leading other evidence and to establish the allegation made
by him in the case.
Sd/-
(Ravindra Kumar Agrawal)
JUDGE
padma
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