—

Madras High Court

Suresh Kumar vs Shanmugapriya on 22 February, 2024

Crl.R.C(MD)No.752 of 2023

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Reserved On : 20.12.2023
Pronounced On : 22.02.2024

CORAM :

THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN

Crl.R.C(MD)No.752 of 2023
and
Crl.M.P(MD)No.10241 of 2023

Suresh Kumar .. Petitioner / Petitioner /
Respondent
Vs.
1.Shanmugapriya

2. Minor Karthik,

Minor represented by,
his mother/natural guardian
1st respondent Shanmugapriya .. Respondents / Respondents/
Petitioners

PRAYER: Criminal Revision filed under Section 397 r/w 401 of the

Criminal Procedure Code, to call for the records pertaining to the order dated

19.06.2023 passed in Crl.M.P.No.5009 of 2022 in M.C.No.3 of 2022 on the

file of the learned District Munsif-cum-Judicial Magistrate, Thirupuvanam

and set aside the same.

For Petitioner : Mr.N.Vallinayagam

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ORDER

This Criminal Revision Case has been filed against the order dated

19.06.2023 passed in Crl.M.P.No.5009 of 2022 in M.C.No.3 of 2022 on the

file of the learned District Munsif-cum-Judicial Magistrate, Thirupuvanam.

2. The case of the prosecution is that the first respondent married the

petitioner on 30.06.2017. After solemnization of marriage, due to

menstruation period of the first respondent, according to the petitioner, there

was no consummation of marriage. After the mensuration period, according

to the petitioner, he had not had sexual intercourse with the first respondent

due to injuries sustained by him on his private part. Thereafter, when the first

respondent went to take treatment for fever, the doctor informed the fact that

she was pregnant. Suspecting the said pregnancy, the petitioner harassed the

first respondent following which a complaint was lodged by the first

respondent. Finally, they parted company. In the meantime, the child/second

respondent was born. So, the first respondent filed M.C.No.3 of 2022 on the

file of the learned District Munsif-cum-Judicial Magistrate, Thirupuvanam.

The petitioner filed the counter affidavit denying all the allegations, more

particularly, the petitioner stated that he sustained injury on his private part

on the date of proposed first consummation, ie., sexual intercourse is denied

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as false and there was no sexual intercourse at all, and hence, he is not liable

to pay maintenance to the first respondent and the child/second respondent.

3. After filing the said counter affidavit, he filed the Crl.M.P.No.5009

of 202 under Section 45 of the Indian Evidence Act to subject the child for

DNA test. The same was dismissed by the learned trial Judge holding that the

petitioner has not established the circumstances to order the DNA test.

Aggrieved over the same, the petitioner filed this revision raising the ground

stated in the memorandum of grounds of revision.

4. The learned counsel for the petitioner reiterated the grounds and

further elaborated that it is the specific case of the petitioner that he had no

sexual intercourse with the first respondent and hence, the alleged birth of

the second respondent is suspicious. Hence, the claim of maintenance, on

behalf of the second respondent is also not maintainable. Therefore, the

learned trial Judge has committed error in dismissing the petition. He placed

reliance upon the following judgments:

1. In the case of Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik

and another reported in 2014 (2) SCC 576

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2. In the case of Dipanwita Roy v. Ronobroto Roy reported in 2014

(6) CTC 791

3. In the case of V.K.Bhuvaneswari v. N.Venugopal reported in 2007

(1) LW 318

5. In the case of Palanisamy v. Vijayakumar and Others reported in

2021 (4) LW 771

5. This Court has considered the submission made on behalf of the

petitioner and the precedents relied upon by him.

Pater est quem nuptiae demonstrant” which means, the father is he

whom the nuptials point out.

Section 112 of the Indian Evidence Act is based on the above said

principle. For better appreciation, Section 112 of the Indian Evidence Act,

1872, is 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

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marriage had no access to each other at any time when
he could have been begotten.”

It is the principle of law that “Odiosa et inhonesta non sunt in lege prae

sumenda” (Nothing odious or dishonourable will be presumed by the law).

So the law presumes against vice and immorality. One of the strongest

illustrations of the principle, is the presumption in favour of legitimacy of

children in a civilized society.

5.1. Now, the question arose in this case is that whether the petitioner’s

prayer to subject the second respondent for DNA test can be entertained or

not?

6. When a child was born during the valid marriage, it is a conclusive

proof of his legitimacy unless strong and cogent evidence is led to prove

otherwise. Therefore, no person is allowed to raise a question of legitimacy

by filing an application to seek the child to undergo DNA test.

7. In this regard, the Hon’ble Supreme Court issued the detailed

following guidelines to be followed before ordering DNA test:

7.1.Goutam Kundu v. State of W.B., (1993) 3 SCC 418 at page 428

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26. From the above discussion it emerges—
(1) that courts in India cannot order blood test as a matter of course;

(2) wherever applications are made for such prayers in order to have
roving inquiry, the prayer for blood test cannot be entertained.
(3) There must be a strong prima facie case in that the husband must
establish non-access in order to dispel the presumption arising
under Section 112 of the Evidence Act.

(4) The court must carefully examine as to what would be the
consequence of ordering the blood test; whether it will have the
effect of branding a child as a bastard and the mother as an
unchaste woman.

(5) No one can be compelled to give sample of blood for analysis.

7.2. In Aparna Ajinkya Firodia Vs. Ajinkya Arun Firodia
reported in 2023 SCC online SC161

60. 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.

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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 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

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children born out of adultery, including inheritance-related
consequences, social stigma, etc.
7.3. In Kamti Devi v. Poshi Ram, (2001) 5 SCC 311 at page 316

10. We may remember that Section 112 of the Evidence
Act was enacted at a time when the modern scientific
advancements with deoxyribonucleic acid (DNA) as well as
ribonucleic acid (RNA) tests were not even in contemplation
of the legislature. The result of a genuine DNA test is said to
be scientifically accurate. But even that is not enough to
escape from the conclusiveness of Section 112 of the Act e.g.
if a husband and wife were living together during the time of
conception but the DNA test revealed that the child was not
born to the husband, the conclusiveness in law would remain
irrebuttable. This may look hard from the point of view of the
husband who would be compelled to bear the fatherhood of a
child of which he may be innocent. But even in such a case
the law leans in favour of the innocent child from being
bastardised if his mother and her spouse were living together
during the time of conception. Hence the question regarding
the degree of proof of non-access for rebutting the
conclusiveness must be answered in the light of what is
meant by access or non-access as delineated above.

11. Whether the burden on the husband is as hard as
the prosecution to prove the guilt of the accused in a trial
deserves consideration in the above background. The

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standard of proof of prosecution to prove the guilt beyond
any reasonable doubt belongs to criminal jurisprudence
whereas the test of preponderance of probabilities belongs to
civil cases. The reason for insisting on proof beyond
reasonable doubt in criminal cases is to guard against the
innocent being convicted and sent to jail if not to extreme
penalty of death. It would be too hard if that standard is
imported in a civil case for a husband to prove non-access as
the very concept of non-access is negative in nature. But at
the same time the test of preponderance of probability is too
light as that might expose many children to the peril of being
illegitimatized. If a court declares that the husband is not the
father of his wife’s child, without tracing out its real father
the fallout on the child is ruinous apart from all the ignominy
visiting his mother. The bastardised child, when grows up
would be socially ostracised and can easily fall into
wayward life. Hence, by way of abundant caution and as a
matter of public policy, law cannot afford to allow such
consequence befalling an innocent child on the strength of a
mere tilting of probability. Its corollary is that the burden of
the plaintiff husband should be higher than the standard of
preponderance of probabilities. The standard of proof in
such cases must at least be of a degree in between the two as
to ensure that there was no possibility of the child being
conceived through the plaintiff husband.

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12. In Goutam Kundu v. State of W.B. [(1993) 3 SCC
418 : 1993 SCC (Cri) 928] the Hon’ble Supreme Court after
considering the above decision in Dukhtar Jahan v. Mohd.
Farooq [(1987) 1 SCC 624 : 1987 SCC (Cri) 237] held (at
SCC p. 427, para 22) that “this presumption can only be
displaced by a strong preponderance of evidence, and not by
a mere balance of probabilities”.

In a Dukhtar Jahan v. Mohd. Farooq, (1987) 1 SCC 624 at
page 629

12. Another serious infirmity noticed in the judgment
is that the learned Judge has completely lost sight of Section
112 of the Indian Evidence Act. Section 112 lays down that if
a 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 and the mother
remains unmarried, it shall be taken as 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. This rule of
law based on the dictates of justice has always made the
courts incline towards upholding the legitimacy of a child
unless the facts are so compulsive and clinching as to
necessarily warrant a finding that the child could not at all
have been begotten to the father and as such a legitimation
of the child would result in rank injustice to the father.
Courts have always desisted from lightly or hastily rendering

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a verdict and that too, on the basis of slender materials,
which will have the effect of branding a child as a bastard
and its mother an unchaste woman.

8.The Hon’ble Supreme Court in 1987 1 SCC 624, rejected the similar

contention raised by the petitioner herein in the “maintenance proceedings”

categorically in the following terms:-

In Dukhtar Jahan v. Mohd. Farooq, (1987) 1
SCC 624 at page 628

11. Examining the matter, we feel the learned
Judge has failed to view the case in its entire
conspectus and this has led to miscarriage of
justice. On the sole ground that the child had been
born in about 7 months’ time after the marriage it
cannot be concluded that the child should have been
conceived even before the respondent had
consummated the marriage. Giving birth to a viable
child after 28 weeks’ duration of pregnancy is not
biologically an improbable or impossible event.

In Combined Textbook of Obstetrics and
Gynaecology by Sir Gugald Baird, 7th Edn., at p.
162 it is reported as under:

“In the case of Clark v. Clark(1939) P 228 an
extremely small baby, born alive 174 days after last
possible date when intercourse with the husband
could have taken place, and which survived, was

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held to be legitimate. While it is most unusual for
babies of this weight or gestation period to survive
it does occasionally happen.”
The learned Judge ought not, therefore, to have
rushed to the conclusion that a child born in about 7
months’ time after the marriage of the parents
should have necessarily been conceived even before
the marriage took place. Insofar as the second
aspect is concerned viz. about the appellant’s
statement that the child was not born prematurely,
the High Court has failed to bear in mind that the
appellant is a rustic and illiterate woman and as
such her opinion could suffer from error of
judgment.

15.The relevant features which have escaped
the attention of the High Court can be catalogued as
under :

15-A.If the appellant was pregnant even at the
time of the marriage she could not have concealed
that fact for long and in any event the respondent
would have come to know of it within two or three
months of the marriage and thereupon he would
have immediately protested and either discarded the
appellant or reported the matter to the village elders
and relatives and sought for a divorce. On the
contrary the respondent had continued to lead life

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with the appellant in a normal manner till the birth
of the child. Even the confinement appears to have
taken place in his house as otherwise the child’s
birth would not have been registered in his village.
The respondent had not disowned the child
immediately after its birth or sent away the
appellant to her parents’ house. Such would not
have been his conduct if he had any doubt about the
paternity of the child. Moreover, there is an entry in
the birth register (Ex. Kha-1) setting out the
respondent as the father of the child. Though the
respondent has attempted to neutralise the entry in
Ex. Kha-1 by examining DW 2 and making it appear
that the entry had been made on the basis of
information given by a third party, the lower courts
have refused to give credence to the vague and
uncorroborated testimony of DW 2. It is also
significant to note that the respondent had allowed
eleven months to pass before effecting a divorce. By
his inaction for such a long period the respondent
has given room for inference that the divorce may
have been effected for other reasons and not on
account of the appellant giving birth to a child
conceived through someone else. Lastly, even if the
child had been born after a full-term pregnancy it
has to be borne in mind that the possibility of the

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respondent having had access to the appellant
before marriage cannot be ruled out because they
were closely related and would therefore have been
moving in close terms. All these factors negate the
plea of the respondent that the minor child was not
fathered by him.

16.The proper course for the High Court, even
if entitled to interfere with the concurrent findings of
the courts below in exercise of its powers under
Section 482 CrPC, should have been to sustain the
order of maintenance and direct the respondent to
seek an appropriate declaration in the civil court,
after a full-fledged trial, that the child was not
born to him and as such he is not legally liable to
maintain it. Proceedings under Section 125 CrPC,
it must be remembered, are of a summary nature
and are intended to enable destitute wives and
children, the latter whether they are legitimate or
illegitimate, to get maintenance in a speedy
manner. The High Court was, therefore, clearly in
error in quashing the order of maintenance, in
favour of the child.

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8.1.Goutam Kundu v. State of W.B., (1993) 3 SCC
418 at page 428

27. Examined in the light of the above, we find
no difficulty in upholding the impugned order of the
High Court, confirming the order of the Additional
Chief Judicial Magistrate, Alipore in rejecting the
application for blood test. We find the purpose of the
application is nothing more than to avoid payment
of maintenance, without making any ground
whatever to have recourse to the test. Accordingly,
criminal appeal will stand allowed. Crl. M.P. No.
2224 of 1993 in SLP (Crl.) No. 2648 of 1992 filed by
respondent 2 will stand allowed. She is permitted to
withdraw the amount without furnishing any
security.

By applying the above principles, the petitioner prayer to subject the child to

DNA Test in order to avoid the payment of maintenance under Section 125 of

Cr.P.C., under the summary proceedings cannot legally be entertained.

9. According to the first respondent, the petitioner married the first

respondent on 13.06.2017. After the marriage, the first respondent and the

petitioner were living in the matrimonial home along with her father-in-law,

mother-in-law and sister-in-law, and all caused cruelty to the first respondent.

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Even the petitioner assaulted the first respondent. When she was pregnant,

she suffered from fever. She was taken to the hospital. In the hospital, the

doctors informed that she was pregnant. Therefore, the petitioner forcibly

drove her out from the matrimonial home and she is living in her parental

house and the petitioner never made any contact and the second respondent

was born on 22.03.2018 in the Government Hospital. Even after that the

petitioner never visited the respondents.

10. According to the petitioner, on the date of the marriage, the first

respondent informed that she was under the mensuration period and hence,

the petitioner had no sexual intercourse with her. After one week, he

sustained injury on his private part at the time of the sexual intercourse and

hence there was no sexual intercourse between them. Thereafter, there was

some dispute relating to the pregnancy and hence, she was forced to have left

the matrimonial home within a period of 25 days from the date of marriage

and hence, he disputed the paternity of child. Therefore, he filed the petition

in Crl.M.P.No.5009 of 2022 to subject the second respondent for the DNA

test and the same was dismissed by the learned trial Judge.

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11. From the pleadings it is clear that the petitioner married the first

respondent on 13.06.2017 and she left the matrimonial home hardly one

month from the date of marriage. Even in the present petition, it is stated that

he had sexual intercourse and sustained injuries on his private part, for

which, he is said to have taken treatment. In the said circumstances, it cannot

be denied that he had the access and the relationship with the first

respondent.

12. As per the provision of Section 112 of the Indian Evidence Act,

only when parties to the marriage establish that they had no access to each

other at any time when the child could have begotten, the question of

legitimacy comes. In this case, no such situation arise.

13. The petitioner should establish that he had no access with the first

respondent to have sexual intercourse. Further, it is not the case of the

petitioner that the first respondent had access with some other person. In the

said situation, A man who can readily be in company with his wife is said to

have access to her; and in that case her child is presumed to be his child. But

this presumption may be rebutted by positive evidence that no sexual

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intercourse took place and the same has been emphasized by the Hon’ble

Supreme Court in the following judgement:

Chilukuri Venkateswarlu Vs. Chilukuri Venkatanarayana reported in

A.I.R. 1954 S.C. 176

(4) It may be stated at the outset that the presumption
which section 112 of the Indian Evidence Act contemplates,
is a conclusive presumption of law which can be displaced
only by proof of the particular fact mentioned in the
section, namely, non-access between the parties to the
marriage at a time when according to the ordinary course
of nature the husband could have been the father of the
child. Access and non-access again connote, as has been
held by the Privy Council: Vide — ‘Karapaya v.Mayandi’,
AIR 1934 PC 49 (A) existence and non-existence of
opportunities for material intercourse.

14. In Ammathayee v. Kumaresain [(1967) 1 SCR 353]
the Hon’ble Supreme Court held that the conclusive
presumption under Section 112 of the Indian Evidence Act
can only be displaced if it is shown that the parties to the
marriage had no access at any time when the child could
have been begotten.

In Sham Lal v. Sanjeev Kumar, (2009) 12 SCC 454 at
page 465 the Hon’ble Supreme Court has held as follows:

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33 [Ed.: Para 33 corrected vide Official Corrigendum No.
F.3/Ed.B.J./79/2009 dated 10-7-2009.] . The findings of the
High Court on the interpretation of Section 112 of the
Evidence Act are based on correct analysis of Indian and
English cases for the last more than a century. According to
the legislative intention and spirit behind Section 112 of the
Evidence Act it is abundantly clear that once the validity of
marriage is proved then there is strong presumption about
the legitimacy of children born from that wedlock. The
presumption can only be rebutted by a strong, clear,
satisfying and conclusive evidence. The presumption cannot
be displaced by mere balance of probabilities or any
circumstance creating doubt.

35. It is well-settled principle of law that odiosa et
inhonesta non sunt in lege praesumenda (nothing odious or
dishonourable will be presumed by the law). The law
presumes against vice and immorality. In a civilised society it
is imperative to presume the legitimacy of a child born
during continuation of a valid marriage and whose parents
had “access” to each other. It is undesirable to enquire into
the paternity of a child whose parents “have access” to each
other. Section 112 of the Evidence Act is based on
presumption of public morality and public policy.

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Therefore, he disputed the paternity of the child and hence, a complaint was

given on 23.01.2018 before the Thirumangalam Taluk Police Station. The

police advised both of them to live together. Thereafter, there was no

communication from the petitioner. Hence, the first respondent filed the

maintenance proceedings before the trial Court.

14. From the above sequence of events, it is clear that except the

petitioner, nobody had any access to the first respondent. In the said

circumstances, as per Section 112 of the Indian Evidence Act, legitimacy of

the child can be legally presumed.

15. As per the provisions contained in Section 112 of the Indian

Evidence Act, the husband should establish that he had no access with the

respondent to have sexual intercourse. Here, it is not the case of the petitioner

that the first respondent had access with some other persons. Hence, in the

said circumstances, the learned trial Judge has correctly dismissed the

petition. The paternity of the child cannot be easily raised by the husband. It

is the child’s right to have a good legitimate name as well as unquestioned

patronage. Hence, all over the world, the Courts consistently held that the

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DNA test by disputing the innocent child’s right of privacy, cannot be

ordered.

16. DNA Test is intrusive test and the said lis is between the parties to

a marriage and not between one of the party to the marriage and the child

whose paternity is questioned. It would leave a far-reaching stigma on the

infant and the future of infant would be devastated and would force the child

to a position of fatherless child and would cause stress and potential

heartache to the child and turn his world upside down. Therefore, the Court

below rightly dismissed the petition, without sacrificing the right and best

interest of the child and hence, this Court has no reason to differ with the

conclusion of the learned trial Judge.

17. It is seen from the finding of the learned trial Judge, in paragraph

No.7 of the judgment that the petitioner has not been regularly appearing

before the Court below to co-operate the completion of the proceedings. He

filed the H.M.O.P.No.25 of 2018 to seek divorce but he has not taken any

steps to continue the same. After five years, the petitioner filed the petition

raising the paternity issue without dispelling the conclusive presumption

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under Section 112 of the Indian Evidence Act. Therefore, this Court accepts

the dismissal of the impugned order with costs.

18. Accordingly, this Criminal Revision Petition is dismissed.

Consequently, connected miscellaneous petition is closed.

22.02.2024

NCC : Yes/No
Index :Yes/No
Internet :Yes/No
PJL/sbn

To

1. The District Munsif-cum-Judicial Magistrate,
Thirupuvanam.

2. The Section Officer,
Criminal Section (Records)
Madurai Bench of Madras High Court,
Madurai.

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K.K.RAMAKRISHNAN, J.

PJL/sbn

Predelivery order made in
Crl.R.C(MD)No.752 of 2023

22.02.2024

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