The Bombay High Court has reaffirmed that courts may direct DNA testing in matrimonial disputes to establish infidelity, but only without coercion and where delay or acquiescence does not bar equitable relief. The judgment underscores the primacy of Article 21 rights and the statutory presumption of legitimacy under Section 112 of the Evidence Act, even as it declines to interfere due to inordinate delay.
Background & Facts
The Dispute
The petitioner, Sow. Shivnanda, and the respondent, Satyawan Karadbhaje, were married on 13.12.2009 as per Hindu rites and customs. The petitioner resided with the respondent for only eight days after marriage. The respondent alleged that the petitioner thereafter began residing with a third party, Shivaji, and maintained continuous contact with him. On 27.12.2009, the respondent claimed to have seen the petitioner in a compromised position with Shivaji. The petitioner left the matrimonial home permanently after the initial eight-day period.
Key Facts
- Marriage solemnized on 13.12.2009
- Petitioner resided with respondent for only eight days post-marriage
- Petitioner gave birth to a son on 22.12.2010, without disclosing pregnancy to respondent
- Respondent alleged non-access during conception period and claimed he is not the biological father
- Respondent filed Hindu Marriage Petition No. 249 of 2014 on 22.12.2010 under Section 13(1)(i) of the Hindu Marriage Act seeking divorce on grounds of desertion and adultery
- Issue No. 1(c) framed by Trial Court: "Does the petitioner prove that petitioner is not the father of the child born to respondent no.1 on 22.12.2010?"
- Respondent filed Application Exhibit-44 on 15.11.2018 seeking direction for DNA test of petitioner and child
- Petitioner opposed the application
Procedural History
- 01.12.2018: Civil Judge (Sr. Div.), Beed, passed impugned order allowing DNA test application
- 01.12.2018 Order: Directed petitioner and child to appear at Forensic Science Laboratory, Mumbai, for blood sample collection; explicitly stated petitioner shall not be compelled against her will
- Exhibit-57 (Pursis): Filed by petitioner on 18.01.2019, stating she was ready to appear for DNA test but did not subsequently present herself
- 21.09.2016: Trial Court ordered respondent to pay interim maintenance for child (Exhibit-16)
- 06.09.2024: Bombay High Court disposed of Writ Petition No. 12010 of 2017, directing petitioner to withdraw maintenance amount only after compliance with impugned DNA order
- April 2026: Writ Petition No. 426 of 2026 filed before Bombay High Court challenging the 2018 DNA order
Relief Sought
The petitioner sought quashing of the impugned order dated 01.12.2018, arguing that compelling her and her minor son to undergo DNA testing violated their fundamental rights under Article 21 of the Constitution, including bodily integrity and informational privacy.
The Legal Issue
Can a matrimonial court direct a wife and her minor child to undergo DNA testing to establish infidelity, and if so, under what conditions? Further, does a seven-year delay in challenging such an order, coupled with prior acquiescence, bar equitable relief under Article 226?
Arguments Presented
For the Petitioner
The petitioner’s counsel, Mr. P.K. Lakhotiya, argued that the impugned order violated the right to bodily integrity and informational privacy recognized by the Supreme Court in K.S. Puttuswamy v. Union of India. He contended that DNA testing cannot be ordered unless the presumption under Section 112 of the Evidence Act is first rebutted by substantial evidence of non-access. He relied on R. Rajendran v. Kamar Nisha, Ivan Rathinam v. Milan Joseph, and Banarsi Das v. Teeku Dutta to assert that courts must not compel unwilling parties to submit to biological testing. He further argued that the petitioner’s pursis was filed under a misconception of law and that the order was inherently coercive despite its wording.
For the Respondent
The respondent’s counsel, Mr. A.A. Nimbalkar, opposed the petition on grounds of delay and laches. He submitted that the petitioner had accepted the impugned order by filing Exhibit-57, promising to appear for the test, yet deliberately failed to do so. He emphasized that the divorce petition had been pending for 13 years and that the writ petition was filed only after evidence recording was complete, likely to delay final adjudication. He cited Balwant Singh v. Jagdish Singh, Pathapati Subba Reddy, Mrinmoy Maity v. Chhanda Koley, and Kamla Patel v. Govind Bahadur to argue that writ courts must not entertain belated challenges where the petitioner has acquiesced and the delay prejudices the other party.
The Court's Analysis
The Court observed that the objective of the DNA test was not to determine the legitimacy of the child per se, but to establish the wife’s infidelity as a ground for divorce under Section 13(1)(i) of the Hindu Marriage Act. The Court noted that while Section 112 of the Evidence Act creates a conclusive presumption of legitimacy if the child is born during the continuance of a valid marriage, DNA evidence may be used to rebut the inference of conjugal access and thereby support a claim of adultery.
"The DNA test itself cannot be used to declare illegitimacy of child as long as presumption under Section 112 remains intact. In case where declaration as to legitimacy of child is sought, the issue of non-access has to be proved with substantive evidence and then only question of directing DNA test arises for consideration."
The Court held that courts have discretionary power to direct DNA testing in matrimonial disputes, provided no party is compelled against their will. The impugned order explicitly stated that the petitioner would not be forced to give blood samples - a safeguard consistent with constitutional rights.
On the issue of delay, the Court invoked Chennai Metropolitan Water Supply & Sewerage Board v. T.T. Murali Babu, emphasizing that writ courts exercise equitable jurisdiction and must weigh the explanation for delay. The Court found that the petitioner had not only failed to challenge the order for seven years but had also affirmatively represented to the Trial Court that she was ready to comply. Her subsequent refusal to appear, followed by a belated writ petition at the final stage of trial, indicated tactical delay rather than legal grievance.
"Delay reflects inactivity and inaction on the part of a litigant - a litigant who has forgotten the basic norms, namely, ‘procrastination is the greatest thief of time’ and second, law does not permit one to sleep and rise like a phoenix."
The Court concluded that the order was neither illegal nor beyond jurisdiction, and that refusing to entertain the petition would not result in manifest injustice.
The Verdict
The writ petition was dismissed. The Court upheld the impugned order dated 01.12.2018, noting that no coercive action had been taken against the petitioner and that the direction for DNA testing was properly conditioned. The Court declined to interfere with the Trial Court’s discretionary order, holding that the petitioner’s seven-year delay and prior acquiescence barred equitable relief under Article 226.
What This Means For Similar Cases
Delay and Acquiescence Bar Writ Relief
- Practitioners must advise clients to challenge interim orders in matrimonial cases promptly - delay beyond two years, especially with prior compliance, risks dismissal on laches
- Filing a pursis agreeing to comply with a court order creates a binding representation; subsequent refusal may be viewed as tactical manipulation
- Writ petitions filed at the final stage of trial, after evidence recording, are likely to be dismissed unless they raise patent illegality
DNA Tests Are Permissible But Not Compulsory
- Courts may direct DNA testing to prove infidelity under Section 13(1)(i), but only if the party is not compelled
- The absence of coercion in the order is critical - any order lacking this safeguard may be vulnerable to Article 21 challenge
- DNA evidence cannot override Section 112; it can only support evidence of non-access and extramarital conduct
- Practitioners must ensure that applications for DNA testing are supported by prima facie evidence of non-access or suspicious circumstances, not mere suspicion
Presumption of Legitimacy Remains Strong
- The burden remains on the husband to prove non-access and voluntary intercourse with another person before the presumption under Section 112 can be rebutted
- Courts will not permit children to be stigmatized as illegitimate based solely on refusal to undergo DNA testing
- A wife’s refusal to submit to a test cannot be treated as an admission of infidelity - the burden of proof remains on the petitioner
