Anjan Mahajan vs Binta Devi & Ors

Romesh Verma, J

The present petition arises out of the order dated 20.11.2024, as passed by the learned Additional Principal Judge, (Additional District Judge), Family Court Chamba, District Chamba, whereby an application under Section 151 CPC for DNA test, filed by the present petitioner, has been rejected.

2 Brief facts of the case are that the petitioner/plaintiff filed a suit for declaration to the effect that neither defendant No.1 is his wife nor defendants No. 2 to 4 are his children. As per the averments as made in the plaint, respondents/defendants No. 2 to 4 are children of respondent/defendant No.1, who have no interest in the matter, hence they are being sued through respondent/defendant No.1 being their mother and natural guardian. The respondent/defendant No.1 is already married to one Anil. When respondent/defendant No.1 became pregnant, she visited PHC Brangal along with her husband Anil, where she disclosed name of her husband as Anil. At that time, Anil, who was also accompanying her, signed consent letter for abortion of defendant No.1 vide OPD slip No. 4201. It was averred that in the presence of first marriage of respondent/defendant No.1 with Anil, she was not competent to solemnize second marriage with the petitioner/plaintiff. Hence, the alleged marriage of defendant No.1 with the petitioner/plaintiff, if any, is illegal, void and not sustainable in the eyes of law.

3 As per case set up by the petitioner/plaintiff, respondent/defendant No.1 filed an application under Section 125 Cr.P.C. against the petitioner/plaintiff before learned Chief Judicial Magistrate, Chamba, wherein she, while appearing as RW1, disclosed that her marriage was solemnized at Bharmour Temple, but she failed to disclose name of Purohit, who got the marriage solemnized. In the absence of rites, ceremonies and custom, the alleged marriage with petitioner/plaintiff is illegal, void and does not confer any right upon respondent/defendant No.1 or her children. The findings returned by the learned Chief Judicial Magistrate, Chamba, vide order dated 16.4.2010 to the effect that respondent/defendant No.1 is legally wedded wife of petitioner/plaintiff and respondents/defendants No. 2 and 3 are children of petitioner/plaintiff, as affirmed by the learned Additional Sessions Judge (FTC) Chamba, vide judgment dated 20.04.2011, are wrong, illegal, void and not binding upon the petitioner/plaintiff.

4 Therefore, the petitioner/plaintiff filed a suit for declaration that respondent/defendant No.1 is not his legally wedded wife nor respondents/defendants No. 2 o 4 are his children; the findings returned by the learned Chief Judicial Magistrate, Chamba, in Criminal Case No. 189/IV/2007 vide order dated 16.4.2010, as affirmed by the learned Additional Sessions Judge (FTC) Chamba, in Criminal Revision No. 3/10, vide judgment dated 20.04.2011, are wrong, illegal, void and not binding upon the petitioner/plaintiff with mandatory injunction, thereby directing respondent/defendant No.1 not to claim herself as wife and respondents/defendants No. 2 to 4 as children of the plaintiff.

5 The suit was contested by respondents/defendants No. 1 to 4 by raising preliminary objections with respect to maintainability, non-joinder of necessary party, limitation, estoppel etc. On merits, it was stated that respondent/defendant No.1 hails from village society and is governed by custom in the matter of marriage, which is prevalent from the time immemorial in District Chamba. It was stated that respondent/defendant No.1 is legally wedded wife of the plaintiff. Both of them lived and cohabited together as husband and wife at Village Chulihara and at Mohalla Charpat and defendants No. 2 to 4 were born out of the said wedlock. It was averred that in the proceedings under Section 125 Cr.P.C., the petitioner/plaintiff failed to produce said Anil as his witness in order to corroborate or substantiate his case.

6 As per defendants, the learned Chief Judicial Magistrate, Chamba, decided factum of marriage in favour of respondent/defendant No.1 and thereafter maintenance was granted to respondents/defendants. Though petitioner/plaintiff filed revision petition before the learned Additional Sessions Judge (FTC), however the said petition came to be dismissed.

Thereafter, the petitioner/plaintiff is paying regular maintenance to the respondents/defendants by executing order of the Court.

7 It was averred that respondent/defendant No.1 is only wife of the petitioner/plaintiff, which is evident from the photographs, Voter Card etc. having been placed on record in the proceedings under Section 125 Cr. P.C. She was turned out from the matrimonial house by the parents of the petitioner/plaintiff and was compelled to stay at Village Chulihara with her parents. In the meanwhile, respondent/defendant No.2 was born, therefore, his name was entered in the pariwar register of the concerned Gram Panchayat. Subsequently, names of respondents/defendants No.

2 and 3 were entered in the municipal record by the petitioner/plaintiff at Chamba. Further, it was stated that respondent/defendant No.1 along with her children was turned out of the matrimonial home by the petitioner/plaintiff and his parents and there was quarrel at Dogra Bazaar and even the matter was reported to the police. The respondents/defendants refuted all the averments as made in the plaint and prayed for dismissal of the suit, as filed by the plaintiff.

8 The petitioner/plaintiff filed replication, whereby all the averments as made in the plaint, were reiterated.

9 The learned trial court framed the issues on 2.1.2014 and thereafter, directed the parties to adduce evidence in support of their contentions to corroborate their respective case.

10 After the conclusion of the evidence, the petitioner/plaintiff filed an application under Section 151 CPC for DNA test.

11 In the application, it was stated that the petitioner/plaintiff has no relation with respondent/defendant No.1 from 30.3.2007 and this fact has been duly admitted by respondent/defendant No.1 in para 8 of her application filed under Section 125 Cr.P.C. before the learned Chief Judicial Magistrate, Chamba. In the said pleadings, she averred that from 30.3.2007, she was staying at her parent house and the petitioner/plaintiff has deserted and neglected her. It has been averred in the application that respondents/defendants No. 2 to 4 were born when respondent/defendant No.1 was living separately from the petitioner/plaintiff and they are not his children. In order to prove that respondents/defendants No. 2 to 4 are not his children, the petitioner/plaintiff wants to conduct DNA test of himself and respondents/defendants No. 2 to 4 to confirm and prove that they are not children of petitioner/plaintiff. Therefore, it was prayed that DNA test may be ordered to be conducted.

12 The application as filed by the petitioner/plaintiff was duly resisted by the respondents/defendants by filing reply, wherein it was averred that the petitioner/plaintiff had filed similar application for DNA test during the proceedings under Section 125 Cr.P.C. before the learned Chief Judicial Magistrate, Chamba and the said application was dismissed vide order dated 15.3.2017. Against the said order, revision petition under Section 397 Cr.P.C. was preferred by the petitioner/plaintiff before the learned Additional Sessions Judge, Chamba, who vide order dated 20.11.2017 also dismissed the revision petition and affirmed the findings returned by learned Chief Judicial Magistrate, Chamba. Still feeling aggrieved, the petitioner/plaintiff approached this Court by filing Cr.MMO No.127/2018 challenging dismissal of the application filed for DNA test. The said CrMMO was listed before this Court and vide its order, dated 24.07.2021, counsel for the petitioner withdrew the said petition. The respondent /defendant No.1 prayed for dismissal of the application being baseless and without merit.

13 The learned Additional Principal Judge, Family Court, vide its order dated 20.11.2024 dismissed the application filed by the petitioner/plaintiff for DNA test.

14 The petitioner/plaintiff has assailed the said order dated 20.11.2024 by filing the instant petition under Section 115 CPC.

15 It is contended by Mr. Sudhir Thakur, learned Senior Advocate, assisted by Mr. Somesh Sharma, Advocate, appearing for the petitioner/plaintiff that the impugned order is erroneous and liable to be quashed and set aside. He has submitted that the plaintiff/petitioner has made out a case for allowing the application for DNA test. Therefore, after accepting the present petition, the application filed by the petitioner/plaintiff deserves to be allowed.

16 On the other hand, the impugned order has been defended by Mr. Malay Kaushal, Advocate, appearing for the respondents/defendants. He has submitted that while invoking provisions of Section 115, scope of interference in the impugned order is very limited. He has further submitted that in view of the law as laid down by the Hon'ble Supreme Court in various cases, application for DNA test is not permissible in a routine manner until and unless prima facie case is made out by the petitioner/plaintiff.

17 I have heard the learned counsel for the parties at length and perused the case file.

18 Before delving into merits of the case, it is apposite to explain the nature and scope conferred to this Court under Section 115 of the CPC and analyze whether this Court is empowered to deal with the issues raised by the petitioner in the instant case. The said provision reads as under:

"Section 115. Revision-

[(1)] The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate court appears--

(a) to have exercised a jurisdiction not vested in it by law, or

(b) to have failed to exercise a jurisdiction so vested, or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit:

[Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings.] [(2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto.] [(3) A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceeding is stayed by the High Court.] [Explanation.--In this section, the expression "any case which has been decided" includes any order made, or any order deciding an issue, in the course of a suit or other proceeding.]"

19 On bare perusal of the above provision, it is clear that the High Court can only interfere with the orders of the Subordinate Court if the Court below has committed illegality or material irregularity in exercise of its jurisdiction. It is imperative to note that under the revisional powers, this Court cannot attack the findings on the facts by the Subordinate Court and can only interfere if any infirmities are found with the exercise of jurisdiction of the Court and not when the courts erroneously decide the cases.

20 The primary object of the revision powers conferred to the High Courts is to prevent subordinate courts from acting arbitrarily, capriciously and illegally while they exercise their jurisdiction. The aspect related to the revision powers given to the High Court has been extensively dealt with by the Hon'ble Supreme Court in a catena of judgments, whereby the Hon'ble Court discussed the meaning and scope of the said provision.

21 The Hon'ble Supreme Court in M/s D.L.F. Housing and Construction Company (P) Ltd., New Delhi vs. Sarup Singh and others, 1969(3) SCC 807, has considered the provisions of Section 115 of CPC as follows:

"5. The position thus seems to be firmly established that while exercising the jurisdiction u/s 115, it is not competent to the High Court to correct errors of fact however gross or even errors of law unless the said errors have relation to the jurisdiction of the Court to try the dispute itself. Clauses (a) and (b) of this section on their plain reading quite clearly do not cover the present case. It was not contended, as indeed it was not possible to contend, that the learned Additional District Judge had either exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction so vested in him, in recording the order that the proceedings under reference be stayed till the decision of the appeal by the High Court in the proceedings for specific performance of the agreement in question. Clause (c) also does not seem to apply to the case in hand. The words "illegally" and "with material irregularity" as used in this Clause do not cover either errors of fact or of law; they do not refer to the decision arrived at but merely to the manner in which it is reached. The errors contemplated by this Clause may, in our view, relate either to breach of some provision of law or to material defects of procedure affecting the ultimate decision, and not to errors either of fact or of law, after the prescribed formalities have been complied with. The High Court does not seem to have adverted to the limitation imposed on its power u/s 115 of the Code. Merely because the High Court would have felt inclined, had it dealt with the matter initially, to come to a different conclusion on the question of continuing stay of the reference proceedings pending decision of the appeal, could hardly justify interference on revision u/s 115 of the Code when there was no illegality or material irregularity committed by the learned Additional District Judge in his manner of dealing with this question. It seems to us that in this matter the High Court treated the revision virtually as if it was an appeal.

22 The Hon'ble Supreme Court in Civil Appeal No.5622 of 2025, titled as P. Kumarakurubaran vs, P. Narayanan & others, held as under:-

It is also to be noted that the appellant has categorically averred in the plaint that he executed the registered power of attorney in favour of his father solely for the limited purpose of constructing a house and carrying out related activities. There is no express clause authorizing his father to sell the suit property to any person without the appellant's consent and knowledge. Yet, the appellant's father executed a sale deed in favour of his granddaughter, going beyond the scope of the power of attorney, which raises serious doubt about misuse of authority and potential fraud. Such assertions cannot be rejected in the application under Order VII Rule 11 CPC. Accordingly, we are of the view that the plaint discloses a cause of action which cannot be shut out at the threshold. Thus, the trial Court acted within its jurisdiction in refusing to reject the plaint and in holding that the matter ought to proceed to trial. The High Court, while exercising its revisional jurisdiction under Section 115 CPC, ought not to have interfered in the absence of any jurisdictional error or perversity in the trial court's order. Rejecting the plaint where substantial factual disputes exist concerning limitation and the scope of authority under the Power of Attorney, is legally unsustainable."

23 In Ajit Singh & others vs. Krishan Kumar, decided on 18th October, 2023, the Hon'ble Delhi High Court, held as under:

"11. The same view is reiterated in a later decision of this Court in the case of Managing Director (Mig) Hindustan Aeronautics Ltd. v. Ajit Prasad Tarway [(1972) 3 SCC 195] wherein a three-Judge Bench of this Court speaking through Hegde, J. clearly stated that the High Court under Section 115 CPC had no jurisdiction to interfere with the order of the first appellate court based on facts or even involving any error of law. It was next observed that it was not the conclusion of the High Court that the first appellate court had no jurisdiction to make the order that it made. The order of the first appellate court may be right or wrong; may be in accordance with law or may not be in accordance with law; but one thing is clear, that it had jurisdiction to make that order. It was not the case that the first appellate court exercised its jurisdiction either illegally or with material irregularity. That being so, the High Court could not have invoked its jurisdiction under Section 115 of the Civil Procedure Code."

24 Now, coming to the merits of the case, record reveals that prior to the institution of the instant application for DNA test, the petitioner/plaintiff had filed similar application before the learned Chief Judicial Magistrate, Chamba, in the proceedings under Section 125 Cr.P.C. wherein it was stated by the petitioner/plaintiff that after allowing the application, mother of the minor daughter, Baby Kanika Mahajan be directed to undergo DNA test in the interest of justice. The said application was duly resisted by minor daughter through natural guardian, her mother, respondent/defendant No.1. Learned Chief Judicial Magistrate, Chamba, vide order dated 15.5.2017 dismissed the application as filed by the petitioner/plaintiff. Thereafter, the petitioner/plaintiff assailed the said order before the learned Addl. Sessions Judge, Chamba, who vide judgment dated 20.11.2017 dismissed the appeal affirming findings of the learned Chief Judicial Magistrate, Chamba. Even Cr.MMO No. 127/2018 filed by the petitioner/plaintiff against the aforesaid order and judgment was disposed of as having withdrawn.

25 Pleadings, especially copy of the plaint and the application, which has been filed in the instant case for DNA test, show that such facts have been concealed and suppressed by the petitioner/plaintiff. Factum of dismissal of the earlier application, which was affirmed by the learned Additional Sessions Judge, and by this Court has not been stated either in the plaint or in the application filed for DNA test. The petitioner/plaintiff has not approached the Court with clean hands. He has suppressed the material facts, therefore, relief, as sought for by the plaintiff/petitioner in the application, has rightly been rejected by the learned court below.

26 By concealing filing of the similar application earlier, the instant petition has been filed by the petitioner/plaintiff for DNA test on the ground that respondent/defendant No.1 is not his legally wedded wife and respondents/defendants No. 2 to 4 are not his children. In the plaint, it has been averred that he is not having any relationship with the respondent/defendant No.1 since 30.3.2000 and the said fact has been pleaded by respondent/defendant No.1 in the petition under Section 125 Cr. P.C., whereby she has categorically pleaded that since 30.3.2007, she is residing at her parental house and the petitioner/plaintiff has deserted and neglected her. In reply to the said averments in the application, it has been categorically stated that that the respondent/plaintiff has nowhere stated that he did not have any physical relation with respondent/defendant No.1 while her stay in her parental house. It has been admitted that respondent/defendant No.1 gave birth to defendants No. 2 to 4 while staying at her parental house. Further it has been averred that the plaintiff used to visit her parental house frequently. The respondent/defendant No.1 has vehemently and specifically denied the averments that after 30.3.2007, there was no access between the parties. She has categorically stated that the petitioner/plaintiff used to visit her parental house frequently and children were born out of his lions. The petitioner/plaintiff has failed to prove that there was no access between the parties.

27 In order to prove paternity of respondents/defendant No. 2 to 4, it was incumbent upon the petitioner/plaintiff to have demonstrated from the record by leading independent witnesses that there was no access between the parties and children were not born out of lions of the parties.

28 The petitioner/plaintiff filed suit before the learned Civil Judge (Senior Division), Chamba, in the month of June 2011. Respondents/defendants filed written statement on 17.1.2013 and the replication was filed by the petitioner/plaintiff on 1.6.2013. Admittedly, the issues were framed in the matter on 2.1.2014 when the matter was fixed for final arguments, the application at hand was filed by the petitioner/plaintiff in order to conduct DNA test.

29 The petitioner/plaintiff in order to corroborate his case has examined himself as PW3, PW1 Dr. Akshay Sharma, PW2 Dr. Vipin Thakur, PW4 Beli Ram, Panchayat Secretary, G.P. Bhakatpur, PW5 Punjab Singh, Record Keeper, CJM Court, Chamba. On the other hand, respondent/defendant No.1 appeared as DW1 and also examined her mother PW2 Dhano.

30 The issues were framed way back in the year 2014 and till date, trial has not concluded.

31 The Hon'ble Supreme Court has repeatedly held that DNA test cannot be conducted in a routine manner. The petitioner has to carve out a case for conducting DNA test. There is no averment or material placed on record to show that there was no access between the parties. In the application, which was filed for DNA test, a categorical stand has been taken by respondent/defendant No.1 that the petitioner/plaintiff used to visit her parental house frequently, therefore, the petitioner/plaintiff under the garb of the instant application cannot be allowed to avail undue and unfair advantage.

32 The Hon'ble Supreme Court has held that DNA testing cannot be ordered as a matter of course and must be subject to stringent safeguards to protect the dignity of individuals and the legitimacy of children born during the wedlock. The power to direct such tests must be exercised with utmost circumspection and only when the interests of justice imperatively demand such an intrusive procedure. Court must remain vigilant against fishing inquiries masquerading as legitimate requests for scientific evidence. The Hon'ble Supreme Court in Goutam Kundu vs. State of West Bengal (1993) 3 SCC 418 has laid down the following parameters:-

"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."

33 These parameters have been subsequently followed by the Hon'ble Supreme Court in Sharda v. Dharmpal, (2003) 4 SCC 493 and Bhabani Prasad Jena v. Orissa State Commission for Women (2010) 8 SCC 633. In these cases, it was held that DNA tests may be ordered, only if a strong prima facie case of non-access is made out, with sufficient material placed before the court to arrive at a decision.

34 The Court has to consider whether directing a DNA test would serve the best interests of the parties involved or whether it would occasion undue harm. The balance of interests must account for the rights and welfare of all the stakeholders- the petitioner/plaintiff, the children and respondent/defendant No.1 herself.

35 The contours of the right to privacy, as an intrinsic facet of Article 21 of the Constitution, were elaborated upon by the Hon'ble Supreme Court in K.S. Puttaswamy and Another vs. Union of India and Others (2017) 10 SCC 1, para 325 thereof, read as under:

"325. Like other rights which form part of the fundamental freedoms protected by Part III, including the right to life and personal liberty under Article 21, privacy is not an absolute right. A law which encroaches upon privacy will have to withstand the touchstone of permissible restrictions on fundamental rights. In the context of Article 21 an invasion of privacy must be justified on the basis of a law which stipulates a procedure which is fair, just and reasonable. The law must also be valid with reference to the encroachment on life and personal liberty under Article 21. An invasion of life or personal liberty must meet the threefold requirement of (i) legality, which postulates the existence of law; (ii) need, defined in terms of a legitimate State aim; and (iii) proportionality which ensures a rational nexus between the objects and the means adopted to achieve them."

36 The Hon'ble Supreme Court in Ivan Rathinam vs. Milan Jospeh, 2025 INSC 115 has held that it is well-established that access and non-access under Section 112 of the Indian Evidence Act 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, 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. It shall be apposite to reproduce relevant paras of the aforesaid judgment, which read as under:-

"27. Before delving into the analysis, it is pertinent to elucidate Section 112 of the Indian Evidence Act, 1872:

"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."

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.'

It is only when such an assertion is made, that the court can consider the question of ordering a DNA test to establish paternity......

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."

37 It has been laid down by the Hon'ble Supreme Court that forcefully undergoing a DNA test would subject an individual's private life to scrutiny from the outside world. Scrutiny, particularly when concerning matters of infidelity, can be harsh and can eviscerate a person's reputation and standing in society. Usually in cases concerning legitimacy, it is the child's dignity and privacy that have to be protected. The effects of social stigma surrounding an illegitimate child make their way into the parents' lives as there may be undue scrutiny owing to the alleged infidelity.

38 The Hon'ble Supreme Court in K. S. Puttanswamy (supra) has held that if even one of these conditions fails, it is considered an unwarranted invasion of privacy and consequently, of life and personal liberty as embodied in Article 21 of the Constitution.

39 The Court must analyze and consider existing evidence to assess presumption of the legitimacy. In case evidence is insufficient only then, should the Court consider ordering a DNA test. Thus, two parameters as laid down by the Hon'ble Supreme Court for ordering DNA test are - (i) insufficiency of evidence; (ii) a positive finding regarding the balance of interests, are pari material.

40 The law infers a presumption in favour of a marriage when a man and woman have continuously cohabitated for a long spell. No doubt, the said presumption is rebuttable and can be rebutted by leading unimpeachable evidence. When there is any circumstance that weakens such a presumption, courts ought not to ignore the same. The burden lies heavily on the party who seeks to question the cohabitation and to deprive the relationship of a legal sanctity.

41 It is no longer res integra that if a man and woman cohabit as husband and wife for a long duration, one can draw a presumption in their favour that they were living together as a consequence of a valid marriage. This presumption can be drawn under Section 114 of the Evidence Act, which reads as under:

"114. 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."

42 In this above context, it would be apposite to refer to Andrahennedige Dinohamy and Another vs. Wijetunge Liyanapatabendige Balahamy and Others 1927 SCC OnLine PC 51, wherein the Privy Council has observed thus:

".....where a man and woman are proved to have lived together as man and wife, the law will presume, unless the contrary be clearly proved, that they were living together in consequence of a valid marriage and not in a state of concubinage.

xxx xxx xxx

The parties lived together for twenty years in the same house, and eight children were born to them. The husband during his life recognized, by affectionate provisions, his wife and children. The evidence of the Registrar of the District shows that for a long course of years the parties were recognized as married citizens, and even the family functions and ceremonies, such as, in particular, the reception of the relations and other guests in the family house by Don Andris and Balahamy as host and hostess- all such functions were conducted on the footing alone that they were man and wife. No evidence whatsoever is afforded of repudiation of this relation by husband or wife or anybody."

43 In Mohabbat Ali Khan vs. Muhammad Ibrahim Khan And Others, 1929 SCC OnLine PC 21, it was again observed by the Privy Council that:

"....The law presumes in favour of marriage and against concubinage when a man and a woman have cohabited continuously for a number of years......"

44 Similarly, in Badri Prasad vs. Dy. Director of Consolidation and Others, (1978) 3 SCC 527, the Hon'ble Supreme Court has held as follows:

".......A strong presumption arises in favour of wedlock where the partners have lived together for a long spell as husband and wife. Although the presumption is rebuttable, a heavy burden lies on him who seeks to deprive the relationship of legal origin. Law leans in favour of legitimacy and frowns upon bastardy....."

45 In S.P.S. Balasubramanyam vs. Suruttayan alias Andali Padayachi and Others, (1994) 1 SCC 460, the Hon'ble Supreme Court has held as under:

"4. What has been settled by this Court is that if a man and woman live together for long years as husband and wife then a presumption arises in law of legality of marriage existing between the two. But the presumption is rebuttable. (see Gokal Chand v. Parvin Kumari, (1952) 1 SCC 713).

46 It is true that there would be a presumption in favour of the wedlock if the partners lived together for a long spell as husband and wife, but, the said presumption is rebuttable though heavy onus is placed on the one who seeks to deprive the relationship of its legal origin to prove that no marriage had taken place (refer: Tulsa and Others vs. Durghatiya and Others, (2008) 4 SCC 520).

47 A similar view has been taken by Hon'ble Supreme Court in Madan Mohan Singh and Others vs. Rajni Kant and another (2010) 9 SCC 209, Indra Sarma v. V.K.V. Sarma (2013) 15 SCC 755 and Dhannulal And Others vs. Ganeshram and another (2015) 12 SCC 301.

48 In Gokal Chand v. Parvin Kumari alias Usha Rani, (1952) 1 SCC 713, the Hon'ble Supreme Court has observed thus:

"......Continuous cohabitation of man and woman as husband and wife and their treatment as such for a number of years may raise the presumption of marriage, but the presumption which may be drawn from long cohabitation is rebuttable and if there are circumstances which weaken and destroy that presumption, the court cannot ignore them."

49 In Kattukandi Edathil Krishnana and anoterh vs. Kattukandi Edathil Valsan & ors., 2022 SCC OnLine SC 737, citing the above said decisions and relying on Section 114 of the Evidence Act, the Hon'ble Supreme Court has held in the facts of the said case that there was a presumption of the marriage between the parents of the plaintiffs on the ground of their long cohabitation status, entitling their offspring to claim their share in the suit schedule property.

50 The learned Court below has rightly relied upon the decision of the Hon'ble Supreme Court in Aparna Ajinkya Firodia vs. Ajinkya Arun Firodia 2024 (7) SCC 773, wherein it has been held that 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.

51 In the present case, onus lies upon the petitioner/plaintiff to prove that respondent/defendant No.1 is not his legally wedded wife and respondents/defendants No.2 to 4, children, are not born out of the lions of the parties. Said fact has been highly disputed by respondent/defendant No.1 and all these questions are to be determined in trial by leading respective evidence by the parties. The parties have led their evidence and now the case is fixed for final arguments of the parties. In the absence of any evidence or corroboration in the instant application that there was no access between the parties, the application in hand has rightly been rejected by the learned Court below. It seems that the instant petition has been filed in order to circumvent the orders, which have been passed by the competent courts below under Section 125 Cr.P.C. The petitioner/plaintiff in order to wriggle out from the payment of maintenance, as has been awarded by the courts below, has filed the application for DNA test to get out of the same. This is not the first application which has been filed by the petitioner/plaintiff.

52 As observed above, earlier application, which has been filed by the petitioner/plaintiff for DNA test in the proceedings under Section 125 Cr.P.C., was dismissed by the learned Chief Judicial Magistrate and the said order was confirmed by the learned Additional Sessions Judge. Even though the petitioner/plaintiff approached this Court by filing Cr.MMO, however, the same was also withdrawn. Now, again the petitioner/plaintiff cannot be permitted to file the instant application that too in absence of any ground for DNA test. There is nothing on record to show or prove or indicate that there was no access between the parties.

53 For the reasons stated hereinabove and in view of exposition of law (supra), the instant petition being devoid of merit, is liable to be dismissed with costs. Ordered accordingly. Pending application(s), if any, also stands disposed of.